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  • Unreported Judgment

FCH v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 184

CITATION:

FCH v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 184

PARTIES:

FCH

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML155-15

MATTER TYPE:

Childrens matters

HEARING DATE:

5 November 2015; 13 and 14 April 2016

HEARD AT:

[Redacted]

DECISION OF:

Member Browne

DELIVERED ON:

17 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 25 May 2015 to issue a negative notice to FCH is set aside and the following decision is substituted:
  1. (a)
    A positive notice be issued to FCH.
  1. The Tribunal prohibits the publication of the applicant’s name, references to any locations where the applicant and his children reside or work, the location of this review hearing, the names of the applicant’s legal representatives in the review and other legal proceedings, the names of the applicant’s children, the names of any witnesses personally known to the applicant, any personal details of the applicant including work history, details of the applicant’s claim for compensation, the locations of any criminal and legal proceedings relating to the applicant and any information that could lead to the identification of the applicant and his children.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – where history of offending behaviour – where charges of disqualifying offences – where applicant was acquitted by a jury or nolle prosequi entered – whether exceptional case exists – whether it would harm the best interests of children to issue a positive notice

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 225, 226, 236

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 17, 24, 66

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

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

REPRESENTATIVES:

APPLICANT:

FCH represented by [redacted] of Counsel instructed by [redacted] Lawyers

RESPONDENT:

On 5 November 2015 the respondent, Chief Executive Officer, Public Safety Business Agency was represented by Ms N Taylor, in-house legal officer; on 13 and 14 April 2016 the respondent was represented by Ms K Heath, in-house advocacy officer

REASONS FOR DECISION

  1. [1]
    FCH wants a blue card so that he can work as a security guard. He also wants to pursue other employment opportunities in the security industry such as working in detention and correctional centres.
  2. [2]
    FCH applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act). The Chief Executive decision-maker obtained FCH’s criminal history and other relevant information as part of a screening process under the Act.
  3. [3]
    FCH’s criminal history identified offences including both charges and convictions on various dates from 1993 to 2009 (inclusive). Some of the offences involved serious allegations made by young women resulting in charges of indecent assault, rape and common assault. The allegations (as alleged) occurred in 1997 and 2001, respectively.
  4. [4]
    No further action was taken for the charges of common assault because the prosecution entered a nolle prosequi in 2005. For the charges of indecent assault and rape, a jury returned a ‘not guilty’ verdict following a hearing in the District Court of Queensland in 2003. For the other charges of common assault, a ‘not guilty’ verdict was also returned by a jury in the District Court of Queensland in 2003.
  5. [5]
    The Chief Executive decision-maker gave FCH an opportunity to make submissions and provide material in support of his application for a blue card. FCH’s application was not successful because the Chief Executive decision-maker determined that FCH’s case was ‘exceptional’ and a negative notice issued.[1]
  6. [6]
    FCH wants to review the decision to issue a negative notice. FCH says that he has been ‘excluded from employment opportunities’ and is trying to support his family and ‘get on with his life’.[2]
  7. [7]
    The Chief Executive decision-maker argues this is an exceptional case because there are risk factors that outweigh the protective factors.[3] The decision-maker says FCH’s criminal history identifies charges for disqualifying offences with allegations made by two different complainants with certain similarities.[4] The decision-maker says the evidence of the complainants was supported (at trial) by evidence of witnesses including the complainants’ mothers.[5]
  8. [8]
    The decision-maker says the charge for common assault that did not result in a conviction took place when the complainant was heavily pregnant (with FCH’s child) at the time. The decision-maker submits that ‘it appears the incident was an instance of domestic violence’ between FCH and the complainant.[6]
  9. [9]
    The decision-maker relies on material from the Department of Communities, Child Safety and Disability Services (Department of Child Safety), Queensland Police Service (QPS) information relating to FCH’s criminal history and a transcript relating to an application for criminal compensation made by FCH following [redacted]. FCH’s application for criminal compensation [redacted] by the presiding Judge.
  10. [10]
    The decision-maker argues the material before the Tribunal ‘as a whole reflects adversely on [FCH’s] ability to maintain appropriate boundaries, exercise appropriate judgement and respect the well-being of others’.[7] The decision-maker argues FCH is ‘not an appropriate person to engage in the provision of essential and developmentally focused services to children and young people’.[8]

What is an exceptional case?

  1. [11]
    The offences of indecent assault, rape and indecent treatment of children under 16 (years of age) are categorised as ‘disqualifying offences’ under the Working with Children Act. Because the offences were dealt with ‘other than by a conviction,’ the Act requires the Chief Executive decision-maker and the Tribunal on review to issue a positive notice to FCH unless satisfied it is ‘an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice’.[9] In determining whether a case is ‘exceptional’, the Tribunal on review must have regard to certain matters prescribed under s 226 of the Act.
  2. [12]
    The Tribunal on review is standing in the shoes of the Chief Executive decision-maker and must arrive at the correct and preferable decision.[10] The Tribunal must therefore be satisfied that this is ‘an exceptional case in which it would harm the best interests of children’ for a positive notice to issue.[11]
  3. [13]
    In considering all of the evidence, the Tribunal must be satisfied to the required civil standard commonly referred to as the Briginshaw[12] standard that a fact has been proven. The relevant extract from Briginshaw v Briginshaw as per Dixon J (as he then was) is as follows:[13]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

  1. [14]
    The Working with Children Act does not define the meaning of ‘exceptional case’. The factors that must be considered under s 226 of the Act include amongst others, whether it is a conviction or charge, whether the offence is a serious offence, when the offence was committed, the nature of the offending behaviour, the penalty imposed and anything else that the Chief Executive or the Tribunal on review reasonably considers relevant to the assessment of the person (FCH).[14]
  2. [15]
    In determining whether FCH’s case is ‘exceptional’, the Tribunal must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.[15]
  3. [16]
    In Commissioner for Children and Young People and Child Guardian v FGC,[16] the Appeal Tribunal said that the meaning of an exceptional case is a matter of discretion and should not be confined to ‘any general rule’.[17] The Appeal Tribunal considered the Court of Appeal decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[18] and said that each case should be considered ‘unhampered by any special meaning or interpretation’.[19] The Appeal Tribunal said:

The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[20]

  1. [17]
    The Tribunal must also consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.[21] The Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.[22]

What are the relevant factors to consider in this case?

  1. [18]
    The Tribunal has summarised FCH’s offences identified in his criminal history as follows:
    1. 1993 - FCH was convicted in the District Court of Queensland of three charges of perjury and on each charge was sentenced to 18 months imprisonment, wholly suspended to be served concurrently.
    2. 1997 - FCH was sentenced for the offence of ‘behave in an indecent manner’ in the Magistrates Court of Queensland. He was fined $100.00 and no conviction was recorded.
    3. 2003 - FCH was found not guilty following a trial before a jury in the District Court of Queensland of one charge of ‘indecent assault’ and one charge of ‘rape’ (alleged to have been committed in 1997). The complainant in that matter was a 16 year old female.
    4. 2003 - FCH was found not guilty following a trial in the District Court of Queensland of three charges of ‘common assault’ (alleged to have been committed in 2001). The complainant in that matter was a 15 year old female. FCH was initially charged with three charges of ‘indecent treatment of children under 16’.
    5. 2005 - FCH was discharged in the District Court of Queensland of one charge of ‘common assault’ (alleged to have been committed in 2001) following the prosecution entering a nolle prosequi.
    6. 2009 - FCH was charged with urinating in a public place and was fined $50 and no conviction was recorded.
  2. [19]
    The decision-maker has prepared reasons for its decision contained in a 28 page document dated 15 May 2015 (the reasons document). The reasons document contains a summary of court transcripts and other documents contained in the QPS material relating to the offending behaviour. The Tribunal does not rely on the summaries of the QPS material contained in the reasons document. Some of the relevant QPS material including court transcripts and statements are summarised in these reasons.
  3. [20]
    The other material considered in the review proceedings includes documents from the Department of Child Safety and court transcripts. The Department of Child Safety documents identify a history of concerns about one of FCH’s children. The court transcripts relate to the criminal proceedings that resulted in a not guilty verdict and on another occasion a nolle prosequi being entered by the prosecution.
  4. [21]
    There is also a court transcript of proceedings (oral reasons) from the District Court of Queensland [redacted] that relates to an application for criminal compensation. FCH made the application because he sustained [redacted].
  5. [22]
    FCH has provided and relies on material in the review proceeding that includes documents relevant to legal proceedings commenced by the Department of Child Safety in respect of a child protection order concerning one his children. There are documents relating to various complaints made by FCH about certain departments including the Department of Child Safety and the handling and reporting of information relating to FCH and two of his children.
  6. [23]
    FCH also relies on material in relation to [redacted] while he was employed [redacted]. This material and FCH’s evidence about [redacted] also relates to what FCH describes as being ‘constant harassment and workplace bullying’.[23]
  7. [24]
    FCH relies on his own statements and evidence given at the hearing and on the statements (and oral evidence) of his former employer and friend DQ, his friend EV and his daughter NEH. He also relies on the expert evidence of XT (psychologist) who prepared a report dated 20 October 2015 and gave oral evidence by telephone. The decision-maker cross-examined FCH and his witnesses at the review hearing.
  8. [25]
    The Tribunal has considered all of the material including the evidence given by FCH and his witnesses. The Tribunal has identified some of the factors relevant to the exercise of its discretion to determine whether FCH’s case is ‘exceptional’ as follows:

a) Nature of the offending behaviour

  • Charge of perjury (1993)
  1. [26]
    On [redacted] 1993, FCH was sentenced to imprisonment for 18 months for three charges of perjury. His sentence was wholly suspended to be served concurrently and he was not to commit any offence punishable by imprisonment for 6 months. The information obtained from the QPS refers to allegations and evidence given by FCH in a hearing [redacted].
  2. [27]
    The QPS information refers to FCH’s sworn evidence that since an accident that occurred [redacted] he had only played football twice (for approximately half a game). Investigations revealed that FCH had played four to five games of football in 1989 and four or five games in 1990. FCH admitted to this during cross-examination. It is further alleged that FCH during his trial gave evidence that since his accident [redacted] he had not participated in the sport of kickboxing. Investigations revealed that he had participated in two kickboxing tournaments [redacted]. FCH admitted to only one of these tournaments during cross-examination.
  3. [28]
    It is further alleged in the QPS material that FCH gave evidence at his trial that since his accident, he had not ridden a pushbike. Investigations revealed that he had ridden a pushbike and FCH admitted this under cross-examination. It is also alleged that the evidence given by FCH was ‘material to a question then depending in and upon the said trial’.[24]
  4. [29]
    FCH was questioned at the review hearing about the charges. FCH stated he was [redacted] when giving evidence at the trial. He stated that he ‘didn’t understand’ referring to the questions that were being asked. He explained why he gave certain answers about riding his pushbike and the kickboxing tournament. He stated he was ‘confused’ and ‘said anything to get out of there’. He also stated that his mother pushed him into making a claim and stated ‘now I look at it; it was all about the money’.
  • Charge of behave in an indecent manner (1997)
  1. [30]
    On [redacted] 1997, FCH was fined for the offence of behave in an indecent manner with no conviction recorded. The QPS material refers to police who were performing foot patrols on 12 January 1997 at 12:50 am and observed FCH standing between two parked cars in a public carpark opposite a hotel. Police observed FCH urinating freely onto the ground and his ‘penis was exposed’.[25] Police approached FCH who stated that he could not find a toilet.
  2. [31]
    At the review hearing, FCH gave oral evidence about the incident. FCH said he was ‘shutout’ of a nightclub and there were no toilets anywhere. He stated he was ‘busting to go to the toilet’ so he went between two parked cars and there was no one about. He stated that he did not apologise because he did not see how he was doing anything wrong stating he had to go to the toilet.
  • Charge of indecent assault and rape (2003)
  1. [32]
    On [redacted] 2003, FCH was found not guilty by a jury in the District Court of Queensland on all charges of indecent assault and rape alleged to have occurred between 28 February 1997 and 1 May 1997. The police information contains details of the allegations and a transcript of the interview with the complainant who was aged 16 years at the time of the offence. The complainant (referred to in the QPS information as [QM]) was aged 19 years when interviewed by police. QM alleges that she met FCH through [redacted] and has known him since about the end of 1996. QM states in her statement that she went to the movies with FCH and he started touching her on the right thigh and she told him to ‘stop it’.[26] FCH stopped for a minute then started to touch her again when she told him to ‘stop it’.
  2. [33]
    FCH is alleged to have said ‘what’s wrong?’ and QM did not answer him. After the movie finished FCH is alleged to have driven QM back to his house. QM states that FCH told her that he had to ‘grab something from inside’ and told her to wait in the car. After a few minutes, FCH came back to the car and asked QM to go inside with him. QM states that she asked ‘what for?’ and FCH said ‘come inside’. QM followed FCH inside his unit and was standing in the lounge when he is alleged to have ‘grabbed [her] in a bear hug.’ QM states it was dark but the radio was playing [a song]. QM states that she remembers this stating (because after) ‘this night I can’t stand to listen to it [the song] anymore’.
  3. [34]
    FCH is alleged to have grabbed QM from the front and was holding her into his chest. QM states she ‘pulled away’. FCH is alleged to have grabbed QM by the hand and led her into his bedroom [where it was dark]. FCH is alleged to have hugged QM and states she felt his hands ‘undoing the zip at the back of [her] pants’. She told him to stop. QM states ‘I was really scared about what he was doing’. QM states her slacks fell to the floor stating ‘I realised that [FCH] had also taken off his pants. He was totally naked from the waist down. I can’t remember if he left his shirt on or not’.
  4. [35]
    QM states that she sat on the edge of the bed and FCH sat beside her. It is alleged FCH pushed QM backwards until she was lying on the bed, sat beside her and ‘starting touching [her] between the legs on [her] vagina’. QM states she told FCH to stop but he would not listen. FCH is alleged to have touched her with his fingers and inserted his fingers inside her stating ‘I think he used two [fingers], but I don’t know which hand he used. I felt uneasy and scared. I didn’t know what was happening because I had never been told anything about sex before. I had never had sex before.’
  5. [36]
    QM states FCH put his fingers inside her for about 30 seconds to a minute and she did not leave because she was ‘too scared’. QM states that FCH then ‘grabbed his penis and inserted it into [her] vagina. He didn’t use a condom’. QM states that she was scared to say anything and all she could think about was that she wanted to go home. QM states that she thinks FCH saw how ‘uneasy and scared’ she was. FCH is alleged to have withdrawn his penis and QM got up quickly and put on her underpants and slacks. FCH also got dressed. QM states FCH drove her home, pulled up outside her house and said ‘see you later.’ QM states (after what had happened) she felt ‘really dirty’ and her mother saw she was ‘upset’ and asked her what was wrong. QM states she did not tell her mother what happened. QM made a complaint to police on 15 January 2001.
  6. [37]
    QM’s mother, referred to as GW in these reasons, also provided a statement to police. A copy of the statement appears in the QPS material.[27]
  7. [38]
    QM’s mother states that QM always wanted to be [redacted] ever since she was a little girl. QM attended university in 1999 before returning home at the end of the year and no longer wanted to [redacted], stating ‘I don’t know why.’ GW has known FCH [redacted]. GW contacted FCH by telephone to pass on information to him. FCH later [redacted]. GW states that QM was 15 years old when she met FCH.
  8. [39]
    GW states that she lent FCH $1,000.00 in about March 1997, as he needed money for child support and bills. FCH mentioned to GW that, he had [redacted]. GW states that FCH was seeing a girl (around this time) and she had two children and was unsure if FCH was the father. GW also purchased a stereo and video for a total of $700.00 from FCH in April 1997.
  9. [40]
    GW states that she remembered FCH taking QM to the movies and did not mind because FCH was [redacted] and she trusted him with her daughter. GW states that QM was still a virgin and had never had a boyfriend. GW states that on the night QM went to the movies with FCH, she came home and was upset, stating ‘she was sobbing lightly out on the veranda where she would sleep’. GW asked QM ‘Are you alright’ and QM said ‘I’m right’.
  10. [41]
    GW states that she had dealings with FCH in May 1997 when she agreed to go to [redacted]. GW states that it was [redacted].
  11. [42]
    GW states that she first became aware of the complaint relating to the applicant in October 2000 when she received a telephone call from QM’s boyfriend. GW states that QM has had telephone counselling since October 2000 and has seen the Rape Crisis Service in the last few weeks (early 2001). GW states that QM was ‘frightened’ of going into the police station to report the matter [redacted]. GW took QM to the police station to provide a statement.
  12. [43]
    There is also a statement of QM’s ex-boyfriend, referred to in these proceedings as LX, dated 8 November 2001 in the QPS material.[28] LX states that QM told him she had seen a [redacted] and within the first month of him and QM ‘going out together’, she told him that this person [redacted] had ‘basically raped her’. LX states that ‘[QM] didn’t go into detail but that [FCH] had taken advantage of her. I took it to mean that he had raped her and she said yes’. LX met QM in early 1998 and the conversation in relation to FCH is alleged to have taken place in or about 1999.
  13. [44]
    The police material contains a witness statement of QM’s boyfriend dated 29 November 2001, referred to in the reasons as TN. TN was 21 years of age (at the time) and lived with QM in [redacted] for approximately one year. TN had known QM for three years and states that one night in November, while he was living with QM; she ‘broke down and began crying’.[29]
  14. [45]
    TN states that QM told him she was ‘having flashbacks’ and after asking QM what was wrong, QM is alleged to have told TN that ‘something happened to me when I was younger’ and stated ‘I got raped by someone older than me’. QM is alleged to have told TN the name of the man (FCH) and referred to him as her [redacted]. TN states that QM told him about the alleged incident and told TN that she was aged 12, 13 when TN asked QM how old she was when this happened.
  15. [46]
    There are also witness statements of investigating police officers in the QPS material. The statement dated 22 October 2001, referred to as the statement of VC in these reasons,[30] states that she spoke to a female person known as QM and observed that QM was ‘upset’. QM was also with her mother. QM told VC ‘what happened’ and AT made notes in her official police notebook. VC also obtained a statement from QM.
  16. [47]
    The police officer statement (referred to as NP) dated 22 October 2001[31] refers to a search warrant being executed [redacted] on FCH’s residence at the time. No property relating to the search warrant was located during the search.
  17. [48]
    There is reference in the reasons document to NP’s statement and a search warrant was executed on FCH’s [redacted] and at his residential address, where they located a white football jersey and an album containing photographs of FCH, a letter and other items. These matters are not relevant to this particular offence and allegations that led to the charges concerning QM, but relate to another matter concerning FCH discussed below.
  18. [49]
    The QPS material contains a transcript of the interview with FCH and police in October 2001.[32] During the interview, FCH maintained that he did not have a sexual relationship with QM. A relevant extract from the transcript is as follows (in relation to the allegations as stated by FCH):[33]

It’s taken her four years to come forward about it?—No. I can’t think of anything. I’ve never done anything wrong.

  1. [50]
    The transcript of the criminal proceedings indicates that a jury returned a not guilty verdict in relation to one count of sexual assault and the offence of rape in the District Court of Queensland [redacted].[34] The particulars of the charge are outlined in the transcript of the proceedings dated [redacted]. FCH pleaded not guilty to the indictment charging him with the offence of sexual assault that consisted of him penetrating the vagina of QM with a part of the body other than the penis, namely the fingers and the charge of rape of QM.[35] The transcript [redacted] also contains the evidence of QM and her mother given in the trial.
  2. [51]
    FCH gave oral evidence at the review hearing about the allegations. He denied the allegations stating ‘it’s not true’. FCH was cross-examined about whether he found the complainant attractive. FCH stated ‘I didn’t look at her in that way'. FCH was questioned about why the complaint was made (by the complainant). FCH said he did not know why and referred to ‘these people[redacted]. FCH was questioned about whether he accepts that making the complaint would cause the complainant ‘embarrassment and humiliation’. FCH said ‘possibly;’ and referred to himself also receiving (the same extent of) humiliation and ‘discreditation’. FCH stated ‘it must be a painful thing, yes’. FCH also stated you have to ‘wonder where it comes from’.
  • Charge of common assault (x3) 2003
  1. [52]
    On [redacted] 2003, a nolle prosequi was entered and FCH was discharged from the charges of indecent treatment of children under 16 years (three charges). On [redacted] 2003, FCH was found not guilty by a jury in the District Court of Queensland on three charges of common assault between 28 August 2001 and 17 September 2001.
  2. [53]
    The QPS material contains details of the allegations and statements. There is also a summary of the s 93A of the Evidence Act 1997 (Qld) transcript of interview with the complainant, referred to in these reasons as JF. The summary of the transcript dated [redacted] 2001[36] outlines particulars of the allegation.
  3. [54]
    The complainant JF was 15 years of age at the time of the alleged incident. JF told the police she knew FCH who worked [redacted]. JF states that she was a student at Training and Further Education (TAFE) and as part of her course, she had to complete an assignment involving a ‘role model’ kit. The assignment was due on 17 September 2001.
  4. [55]
    JF states that in about late August 2001, she had a conversation with her mother at home and her mother suggested that she do a profile on FCH. JF made contact with FCH and told him she wanted to do a profile on him. FCH went to JF’s residence. JF sat on the lounge and FCH ‘on the other’. JF states that during the conversation FCH put his left hand on the top part of JF’s inner thigh of her right leg for a ‘couple of seconds’. FCH’s hand was touching her skin and not her clothes. JF moved her leg away. JF states that she had a conversation with FCH about ‘rumours’ concerning him.
  5. [56]
    When FCH was ready to leave JF’s house he is alleged to have walked beside JF. While she was still standing on the stairs and he was standing on the ground JF states, that FCH put his hand on the ‘same spot, on the inner thigh of her right leg’. JF states that she felt disgusted by the way [FCH] touched her leg’.
  6. [57]
    A few days later FCH is alleged to have returned to JF’s house and JF gave the ‘profile’ to FCH. JF had a further conversation with FCH about the ‘profile’ and told him she needed a photograph. FCH is alleged to have told JF that he only had ‘naked ones’.
  7. [58]
    A few days later JF called FCH because ‘he was the only person she knew who had a car’ who could take her to a friends place. JF also states that on [redacted] 2001 she was [redacted] and they spoke to three other police officers (two were women) about the profile and JF’s mother told the police officers that FCH had ‘touched [JF]’.
  8. [59]
    On [redacted] 2001, JF participated in an interview with the police. On [redacted] 2001, JF states she was with her mother and friend. JF had a conversation with her mother. JF states her mother said ‘it looked like [FCH] [redacted] that was present pulled him away’. JF states that ‘[she] did not like that [FCH] had [redacted]’.[37]
  9. [60]
    A statement of a detective sergeant of police dated [redacted] 2001[38] refers to a recording of a conversation between FCH and JF on [redacted] 2001. There was also a search warrant executed on FCH’s bedroom and certain property seized including a white football jersey, a black photo album containing 65 photographs of FCH in varying modelling poses both clothed and naked, a letter addressed to JF and a document outlining FCH’s personal details.
  10. [61]
    A further statement was completed by a plain clothes constable of police dated [redacted] 2001 and refers to a conversation with FCH and a search warrant executed by police.
  11. [62]
    The QPS material includes a statement of JF’s mother dated [redacted] 2001[39] referred to in these reasons as DG.
  12. [63]
    DG states that JF (in September 2001) is 15 years of age and has other siblings. DG met FCH about four months ago. DG recalled the meeting between FCH and JF at their house after FCH had agreed to do the profile. DG states that she remembered hearing JF say ‘don’t’ and when she turned around she saw FCH had his hand on the inside of JF’s right leg. DG states ‘[h]e then pulled it off when I looked at him. [I] did not say another [sic] to [FCH] as I saw this as I assumed that because [JF] had said don’t he would know that she meant “No”’.[40]
  13. [64]
    DG states that later when they were outside (when FCH was leaving) she saw him put his hand on JF’s right shoulder and JF moved her shoulder to move FCH’s hand off her. DG states that about a week later when FCH returned the profile to JF at their residence and after he had left JF told DG that FCH had put his hand on her shoulder, stating ‘[DG] was not happy about this’. [41]
  14. [65]
    DG states that on a day after this had happened she spoke to a [redacted] and [redacted] about what had happened with FCH and they then took DG to see another [redacted].[42]
  15. [66]
    A statement of a person employed with the QPS (referred to in these reasons as IZ) dated [redacted] 2001 refers to the conversation with JF’s mother (DG) on [redacted] 2001. IZ states the following during the conversation with JF’s mother:[43]

…I was talking about the profile with DG and I was told that the [redacted] was [FCH], I told them that I probably had [redacted]… mainly due to the [redacted] and [redacted] [FCH] had after this incident, I felt that a profile on [FCH] that included photos could be an [redacted], especially from a [redacted] because we were seen as [redacted], I think that [JF] then made allegations about [FCH] and his actions at different times…[44]

  1. [67]
    IZ states that she was told that FCH had touched JF but could not recall if it was on JF’s leg or ‘somewhere else’. IZ also states that FCH had telephoned JF on her mobile.
  2. [68]
    A statement of a sergeant of police dated [redacted] 2001[45] refers to a conversation with JF in the presence of her mother, and states that JF had reported facts regarding an assault committed on her by FCH.
  3. [69]
    There is also a transcript of a taped telephone conversation between JF and FCH dated [redacted] 2001 in the material.[46] The transcript refers to JF’s conversation with FCH and she told him that she could not do the profile. JF is recorded as saying:[47]

…from the last time you came and visit and from what I heard and everything like that umm I just didn’t feel really comfortable and from what was said [redacted] and umm in other places and what you did to other girls it was sort of like weird and it’s not a suitable role model.

  1. [70]
    FCH told JF in the recorded conversation ‘[Oh,] OK then umm well that’s what you get for listening to second hand information hey’.[48] FCH asked JF where her mother was. JF told FCH during the telephone conversation that the reason for calling him was to let him know that she did not feel ‘very comfortable in doing the profile [on him]’.[49]
  2. [71]
    There is a transcript of interview between police and FCH dated [redacted] 2001 in the QPS material.[50] During the interview, FCH was questioned about the allegations made by JF and other allegations, including the allegations made by QM.
  3. [72]
    In relation to the allegations made by QM (charges of indecent assault and rape), FCH denied the allegations. A relevant extract from the transcript is as follows:[51]

---- or have you ever consensually’ [sic] had sex with [QM]?

No.

No. so this -----?—I looked onto her as – like she’s a – oh well, like part of the family.

Yep? -- Like, her mother and me are very close and her mother [redacted] [QM’s mother]----

Yep? -- ---- she calls me [redacted] – you know.

Yep? – So [indistinct], no. I wouldn’t go doing anything like that.

  1. [73]
    In relation to the allegations made by JF (charges of common assault), FCH denied that he touched JF. FCH also denied saying to JF that he would give her a naked photograph of himself. The relevant extract from the transcript is as follows:[52]

Yeah? – I mean, why am I going to give her a naked – that’s ridiculous. I have got some photos there where I’ve got like – my suit wear and – you know, nice ---

[Indistinct] give her a naked one on the sly, sort of thing?--No

Not for the profile?-- No way. I don’t give no-one them photos. I’ve got an – I mean, shit, I’ve got an album at home that I’ve got that is locked in my room. No-one looks at that.

  1. [74]
    During the QPS interview, FCH refers to a conversation he had with JF’s mother. This information is reported in the decision-maker’s reasons for decision document. In the reasons document the decision-maker has summarised the relevant extract from the transcript of interview with FCH as follows:[53]

[FCH] jokingly told the complainant’s mother [JF’s mother] that the complainant was a snob and the complainant confronted him about this in [redacted]. He told her to get over it as she and her mother had told him previously that the complainant had been called ‘a slut’ by other people.

  1. [75]
    The relevant extract of the transcript of the interview as it appears in the QPS material is as follows:[54]

Yeah?—She said she dropped out. I said, “Well, it’s no skin off my nose, I mean – you know, you dropped out, you dropped out. What can I do about it, you know?” I said, “If you haven’t completed it and finished your course well, that’s your own fault, isn’t it, you know? It’s got nothing to do with me.” And then she started going on about, “And who are you telling that my mother – going on and saying that my mum – telling my mum that I’m a snob?” And I looked and I said, “Well, you’ve been called worse things, haven’t you, you know?” Like she’s told me her and her mother said everyone calls her a S-L-U-T and -----

  1. [76]
    The transcript of the District Court of Queensland dated [redacted] 2003 refers to the arraignment of the accused (FCH) for the charge of unlawful assault (three counts) of JF between 28 August 2001 and 17 September 2001. FCH pleaded not guilty.[55] The transcript dated [redacted] 2003 refers to a not guilty verdict for three counts of common assault and FCH was free to ‘leave the dock’.[56]
  2. [77]
    At the review hearing, in giving his oral evidence, FCH denied the allegations. He also denied that [redacted]. FCH was cross-examined about whether he had referred to JF as a ‘slut’. FCH denied calling JF a slut and said that in the interview with police he was referring to other people having called JF and her mother a slut.
  3. [78]
    FCH was cross-examined about what he thinks in relation to the conversation he had with police (concerning the complainant and the reference to ‘slut’ in the QPS material). FCH stated ‘you can’t go around saying stuff like that about people’. When questioned about why the complainant made the complaint, FCH stated he did not know and referred to people being involved that have ‘just blown this right out of proportion’.
    • Charge of Common Assault (2001)
  4. [79]
    The QPS material contains statements and a transcript of interview with FCH (in 2001) in relation to the allegations. The transcript of the District Court of Queensland dated [redacted] 2005 indicates that an indictment that was before the Court in relation to FCH was returned.[57]
  5. [80]
    FCH’s criminal history refers to the charge of common assault (on [redacted] 2001) being dealt with by way of a nolle prosequi entered (FCH was discharged) on [redacted] 2005 in the District Court of Queensland.[58] There are no statements in the QPS material. The court brief details ‘facts’ and refers to the complainant attending the police station on [redacted] 2001 stating ‘an application for a domestic violence order was made by police on her behalf’. A statement was obtained and referred to FCH denying that ‘the child’ (the complainant was pregnant with the child at the time) was his, but DNA tests showed the child was FCH’s.
  6. [81]
    The QPS information refers to a verbal argument between FCH and the complainant and reports that FCH hit the complainant on the right side of her face with an open hand. The Court brief reports ‘the complainant stated that the defendent did this because he did not believe that her (unborn) child was his’. The court brief refers to an application for a domestic violence order heard in the Magistrates Court of Queensland on [redacted] 2001 and reports ‘although the presiding magistrate believed that the complainant had been assaulted, they did not believe [sic] the domestic violence would continue’.[59]
  7. [82]
    The transcript of interview between the police and FCH refers to the allegations made by the complainant. During the interview, FCH denied that he was in a de facto relationship with the complainant. FCH denied that he hit the complainant and that he caused her any injury. FCH, when questioned, agreed that he had ‘a lot of verbal arguments’ referring to the complainant as having ‘a sharp mouth on her’.[60]
  8. [83]
    FCH gave oral evidence at the review hearing about the incident. He denied assaulting the complainant. FCH was cross-examined about the ‘age gap’ between him and the complainant at the time of the alleged offence. FCH was approximately 33 years of age and the complainant was approximately 20 to 21 years of age (at the time). FCH was asked whether he was ‘conscious’ of that (12 or 13 years age gap in the relationship). FCH’s legal counsel queried the relevance of the question and stated that such a relationship is not against the law. Ms Taylor, representing the respondent decision-maker did not continue with the cross-examination in relation to the ‘age gap’ between FCH and the complainant at the relevant time (in 2001).
  9. [84]
    FCH stated at the review hearing that there was never a domestic violence order (that was finalised) in relation to the complainant. FCH was asked whether he had (ever been) subject to a domestic violence protection order. FCH stated ‘no, never’.

b) Documents produced by the Department of Communities, Child Safety and Disability Services

  1. [85]
    The documents produced by the Department of Child Safety identify various incidents relating to FCH and, in particular, his child DH.
  2. [86]
    At the review hearing FCH, during cross-examination, was given an opportunity to respond to the material and was referred to particular extracts from the document. FCH was referred to outcomes of substantiated risk of emotional harm being recorded in relation to DH. The relevant extract from the documents is as follows:[61]

The rationale for the outcome of substantiated risk of emotional harm is recorded with [FCH] and [FO] [DH’s mother] being named as the persons responsible for the harm. Both [FCH] and [FO] continue to place [DH] at risk of emotional harm due to their ongoing domestic violence and conflicts and the malicious intent of both parties in relation to the current family law agreement and the shared care management.

  1. [87]
    FCH was also referred to an extract that identified him as a person responsible for (‘sexual harm’) in the context of him having unlimited access to DH.[62]
  2. [88]
    FCH was also referred to an outcome of substantiated risk of emotional, physical and sexual harm being recorded based on a ‘history of charges of indecent assault and rape of a young person’. There was also reference to FCH’s son, referred to in these reasons as JH, who was reported to be ‘at significant risk of physical and sexual harm in the care of [FCH]’.[63]
  3. [89]
    FCH was cross-examined about the extracts in the Department’s documents and references to ‘risk’ of harm. In relation to one of FCH’s children (his son), FCH referred to his son’s mother having a history of alcohol problems. FCH gave evidence about the care of his son (in about 2004). FCH referred to his son (JH) as doing ‘great’ while he was in his care and not doing well after he was taken from him.
  4. [90]
    In relation to the other issues involving FCH’s daughter and the references to ‘risk’ in the Department’s documents, FCH gave oral evidence about his daughter. FCH stated that many years ago (in about 2005) he went to the Department of Child Safety to make a complaint about the living arrangements for his daughter because he was concerned she was being exposed to domestic violence in the home. FCH stated that he also went to the police to ‘record everything’. FCH spoke at some length about the environment that his daughter was living in and became emotionally upset while giving his evidence in the review proceedings.
  5. [91]
    FCH referred to his daughter’s mother being involved in a domestic violence situation with her partner at the time. FCH also gave evidence about his attempts to remove his daughter from the environment where she was living, and stated that he was ‘furious’ because after he made the complaint to the Department of Child Safety and the police, nothing was done. FCH stated that what followed was the child protection proceedings. Once the child protection proceedings were finalised (in 2005), FCH stated that his daughter’s mother (in effect) left his daughter in his care (together with his friend EV) and his daughter’s mother has (since) recently moved away. FCH also gave evidence about the complaints he made in relation to the issues concerning his children and the Department of Child Safety and QPS. FCH stated during cross-examination that the ‘risks’ of harm (in relation to him) were untrue and that he in fact had taken a domestic violence order out against DH’s mother stating ‘she punched me in the face’.

c) Criminal compensation claim

  1. [92]
    The Chief Executive decision-maker obtained a transcript of the Presiding Judge’s [redacted] reasons in relation to FCH’s application for criminal compensation under the Criminal Offence Victims Act 1995 (Qld) (as it was then known).
  2. [93]
    The criminal compensation proceedings concern an application for compensation made by FCH [redacted]. The transcript refers to the [redacted].[64] The person responsible for the injuries (the accused) was sentenced to imprisonment for six years in the District Court of Queensland on [redacted] with a recommendation for parole after serving 18 months as ordered by [redacted].
  3. [94]
    [redacted] sentencing remarks also appear in the transcript relating to the compensation application. [Redacted] refers to the circumstances of the incident including the [redacted]. The sentencing remarks refer to the complainant [redacted].[65] There is also reference to FCH having [redacted]. The relevant extract from the transcript containing the Judge’s sentencing remarks is as follows:[66]

[Redacted]

  1. [95]
    The transcript shows that the accused [redacted] FCH’s application for criminal compensation in [redacted]. The transcript of [redacted] reasons in relation to the application refers to the accused having believed FCH gave her [redacted].[67]
  2. [96]
    [redacted] referred to relevant facts and circumstances relating to the application including [redacted] and FCH. [Redacted] stated that he believed the accused and not FCH. [redacted]  referred to FCH’s evidence as [redacted].[68] [Redacted] also found that [redacted].
  3. [97]
    Other relevant facts and circumstances referred to in [redacted] reasons include whether before the [redacted], and that the accused [redacted].
  4. [98]
    [Redacted] said the accused had become aware that she [redacted]. [Redacted] FCH previously told the accused [redacted].
  5. [99]
    [Redacted] said the accused [redacted] about [redacted]. The relevant extract from the transcript as stated by [redacted] is as follows:[69]

[Redacted].

  1. [100]
    [Redacted] FCH’s application for criminal compensation [redacted]. [Redacted] said that the application should be [redacted].
  2. [101]
    FCH was cross-examined at the review hearing about the incident including details of [redacted].
  3. [102]
    FCH stated he was [redacted].
  4. [103]
    FCH stated that he did not know why [redacted] did not accept his evidence. FCH stated that the accused [redacted]. FCH stated there are ‘two sides to every story’.
  5. [104]
    FCH was cross-examined about the accused’s feelings (as stated in the transcript) in that the accused [redacted]. FCH stated ‘you feel for that person, it would do something to their lives’. FCH stated [redacted]. He stated he has ‘mixed feelings’.
  6. [105]
    FCH gave evidence about protective strategies he now uses when having [redacted] referring to [redacted]. FCH accepted that he has had children since the incident and stated that there are a percentage of people in the community [redacted] and ‘don’t know they have it’.
  7. [106]
    FCH was cross-examined about whether he said the words [redacted] to the accused. FCH stated he said to the accused [redacted].

d) FCH’s documents – child safety material and complaints

  1. [107]
    FCH was employed [redacted]. FCH gave evidence at the review hearing about ‘trouble’ starting in the workplace when he was given [redacted]. FCH states that after he [redacted]everything turned bad’ referring to ‘gossip’ coming from people [redacted] spreading (gossip) out to the community.
  2. [108]
    FCH relies on various documents in relation to complaints and a claim for compensation made by him about amongst others ‘inaccurate information presented to the Magistrates Court’.[70] The documents include a copy of various correspondence and other statements of witnesses concerning the child protection proceedings. Those child protection proceedings relate to one of FCH’s children (DH). Some of the material also refers to FCH’s care of one of his other children, his son JH (in 2004).[71]
  3. [109]
    FCH was cross-examined at the review hearing about his earlier contact with his son (JH) and daughter DH. FCH did not accept that he declined opportunities to look after his son and stated that he was the one who ‘picked him up’. When speaking about his daughter DH, FCH referred to his concerns about her care when she was living with her mother and his frustration that nothing was done when he reported his concerns.
  4. [110]
    FCH also relies on the affidavit of PY (his Solicitor) sworn 4 November 2015.[72] PY states that she represented FCH in proceedings brought by the Department of Child Safety in respect of an application for a child protection order concerning DH [redacted]. The application was mentioned in the Magistrates Court of Queensland on [redacted] 2005. PY states that an interim directive was made that he not have contact either direct or indirect with DH unless supervised. The application was adjourned to [redacted] 2005. The Department indicated that they were withdrawing their application against DH’s mother. An interim directive was made against FCH in the same terms and the application was adjourned to [redacted] 2005 for mention.
  5. [111]
    On [redacted] 2005, the application was adjourned for an interim hearing to [redacted] 2005. PY states that the outcome of the interim hearing was that [redacted] refused to make any interim order directing that FCH have no contact either direct or indirect except in the company of an approved person.
  6. [112]
    PY states that she appeared in the Magistrates Court on [redacted] 2005 and based on her correspondence and court notes, to the best of her knowledge and belief, the following reasons were stated to have been given by Magistrate [redacted]:[73]
  1. (a)
    That there was no primary material before the Court to consider adverse to the interests of [FCH] to draw an inference of existent risk factors.
  1. (b)
    In respect of the suggestion of the age gap between [FCH] and [FO] there was nothing illegal in that liaison.
  1. (c)
    His Honour was not satisfied that the material raised by the Department of itself could give rise to an apprehended risk of harm.
  1. (d)
    His Honour was satisfied there [would not] be a sufficient basis that there is some risk by restricting [FCH’s] contact with [DH].
  1. (e)
    On the balance of probabilities one might conclude that [FCH] brought some pressure to bear on [FO] to sign the consent orders but that could not be said to be duress even though it may have been unfair.
  1. [113]
    FCH relies on a transcript of the presiding Magistrate’s remarks in relation to the application made on [redacted] 2005. Magistrate [redacted] considered ‘risk factors’ identified including allegations of prior misconduct and said that ‘there is no evidence to bring forward other than the bare bones of certain charges having been laid and proceeded with and having been disposed of by the courts without conviction’.[74]
  2. [114]
    Magistrate [redacted] refers to the criminal charges as having been discharged and in others, FCH was found not guilty. Magistrate [redacted] said there was no primary material and not even a promise of any primary material ‘to consider adverse to the interests of FCH and, as such, would permit the court to draw an adverse inference of existent risk factors in that regard’.[75]

e)  Remorse and insight into the offending behaviour – FCH’s evidence

  1. [115]
    FCH [redacted]. FCH is in a relationship with his current partner, aged 24 years. He was questioned at the review hearing about why his partner did not give evidence in support of his application. FCH stated he did not want to ‘drag her’ into the review proceedings stating ‘she’s got enough on her plate’.
  2. [116]
    FCH has prepared a ‘personal history’ document outlining his employment and personal history. FCH states in his personal history document:[76]

1997-2005 Constant harassment, and work place bullying from [redacted], my friends, work mates and the wider community filled with lies, and at times coached in believing gossip. After being charged and acquitted in a court of Law [sic] was over there a well organised web of accusations and false statements were made for whatever reason. I am still [sic] treated as a paedophile.

  1. [117]
    FCH was questioned at the review hearing about what makes him ‘feel that way’ in relation to his statement of being ‘treated as a paedophile’. FCH stated he did not mean it ‘disrespectfully but if you were in my shoes you would know’. FCH stated his name has been ‘tainted’.
  2. [118]
    FCH was cross-examined at the review hearing about ‘strategies’ he has in place now in the way he deals with people, children and young people. FCH stated it is not like ‘the old days’ where you can be so friendly. He stated you have to take a step back, stating ‘to assess the situation’. FCH stated anyone can make a claim and he makes sure he has someone there with him, stating ‘to back me up’.
  3. [119]
    FCH stated that since he [redacted] there has been no complaints, stating ‘no hassles’. FCH states he feels safer in his environment (now) and stated ‘it’s been a learning curve’. FCH stated he has a different approach now, and not just with children. He stated ‘we treat people with respect and the way you’d want to be treated’. FCH was questioned about whether he feels comfortable being alone with a young female. He stated he feels very comfortable because he knows what to look for. FCH stated he is not going to be accused of something he did not do again.
  4. [120]
    FCH also gave evidence at the review hearing about the care of his son KH [redacted]. FCH referred to his son’s mother as having drinking problems. In his statement dated 7 August 2015, FCH states KH was ‘neglected by his mother due to excessive drinking’. FCH gave evidence about arrangements put in place for his son’s care and support to be shared with another couple. There was no written agreement in relation to the care of FCH’s son. FCH gave evidence at some length about the arrangement and the attempts made by him to maintain the care and contact with his son. FCH referred to the couple taking his son to live with them in [redacted].
  5. [121]
    FCH was cross-examined about ‘protective strategies’ he would put in place to protect his daughter DH from domestic violence occurring in the context of his interactions with DH’s mother (to protect DH). FCH stated that DH should not be put in that type of environment and would not let DH’s mother see his daughter again until she got help. FCH was also questioned about how he has (and does) provide for the emotional needs and wellbeing of his children.
  6. [122]
    FCH was cross-examined about his many children to different partners. He is the parent (and father) to his daughter DH and cares for his partner’s son aged five (not his biological son) and shares the care for his son TH.
  7. [123]
    On the first day of the hearing, FCH gave oral evidence about the names of all of his children. The question was again put to FCH after the hearing was adjourned (for some months). FCH was questioned about whether he had forgotten to mention all of his children’s names (on the first day of the hearing). FCH stated (when questioned about his children again) that he knew all of his children. He stated that some of these children became known to him later in life as a result of their mother’s approaching him and stating that the child or children were his. Some of the children, FCH stated, he knew from when they were born.
  8. [124]
    FCH spoke in a positive manner when talking about his children. He stated he has regular contact with his children referring to outings and stated that he provides for them financially. He spoke at various times throughout the review hearing about his concerns for some of his children (in the past) and his relationship with his children. The Tribunal does not draw any adverse inference from any failure by FCH to identify all of the names of his children on the first day of the hearing. FCH stated when again questioned about his children, that if he did forget to mention the names of all of his children, he did not intend to do so because he was aware of all of his children and he has and does recognise that he is their father.
  9. [125]
    The Tribunal does not draw any adverse inference from the fact that FCH’s current partner was not available to give evidence at the hearing. FCH’s interactions with his own children and with other children and young people is supported by his witnesses including the evidence of DQ, EV, and his daughter NEH.

f) Supporting evidence of friends, family and psychologist (expert witness)

  1. [126]
    DQ states that FCH is ‘a person of high moral principles, honest and honourable and prides himself on the fact that he treats everyone equally with courtesy and respect’.[77] DQ was cross-examined at the hearing about his observations of FCH interacting with children and young people. DQ stated that FCH is ‘professional in his approach’ to everything he does, and this includes children and adults. DQ stated that FCH has a ‘knack’ in his communications with people, referring to FCH’s contemporaries and his peers. DQ stated that he has never seen FCH lose ‘his cool’ when speaking about his observations of FCH as a [redacted] and dealing with aggressive and angry people.
  2. [127]
    The Tribunal found DQ to be an honest and reliable witness and accepts his evidence. DQ was questioned about whether he had read the respondent decision-maker’s reasons for decision document. DQ indicated that he had not read the document, but was aware of some criminal charges relating to FCH. DQ stated that he was aware of indecent assault charges, and common assault charges. DQ stated that he did not specifically know what the allegations were when questioned about the nature of the complaints.
  3. [128]
    EV is a close friend and acquaintance of FCH and has known him for more than 20 years. In her statement, EV states that FCH has ‘displayed to me to be a responsible, reliable and good father. I have found [FCH] to be a compassionate and loyal person’.[78]
  4. [129]
    EV gave oral evidence at the hearing about FCH’s positive interactions with his children. EV is also a ‘mother and carer’ of FCH’s 12 year old daughter.[79] EV and FCH share the care of FCH’s daughter DH.
  5. [130]
    EV was cross-examined at the review hearing about whether she had read the respondent decision-maker’s reasons document. EV stated that she had not. EV stated that she was aware of charges having been made against FCH involving two young girls, and was aware of the [redacted].
  6. [131]
    EV presented as a reliable witness and the Tribunal found her to be honest. EV works on [redacted] as a business manager of [redacted]. Her role is to develop activities for job seekers and she has contact with families on [redacted]. EV lives [redacted] and [redacted].
  7. [132]
    EV spoke in a positive way about FCH’s interactions with his children and stated in giving her oral evidence that some of FCH’s children have only become known to him in later years because their mothers have ‘come forward later’. EV stated that FCH has supported all of his children referring to him paying maintenance and going on outings including swimming, going to the movies, going to dinner and watching his daughter play basketball.
  8. [133]
    EV was questioned at the hearing about whether FCH has had a ‘DNA test’ for all of the children. EV expressed some doubt about whether he was the biological father for all of the children, stating that he ‘should get it checked out’. However, EV stated that FCH would still be the child’s father because these children have single parents and stated that if FCH can be a father ‘he will be’.
  9. [134]
    EV was also questioned about whether some of the mothers of FCH’s children had ever expressed to her that they ‘wanted to get back at FCH’. EV stated that some did, and some did not, and stated that ‘he [FCH] hurt them emotionally’.
  10. [135]
    EV also spoke in a positive way about FCH’s role as a father and carer of his daughter. EV stated that FCH has attended all of the school meetings and supports his daughter with learning. EV was also questioned about FCH’s relationship with all of his children. EV stated that it is ‘good, [FCH] is protective of them’.
  11. [136]
    EV also stated that she was there to support FCH when he was arrested for the charges of indecent assault, rape and common assault. EV was also able to give evidence about her understanding of a blue card as a result of her work [redacted], and a program that she conducts in a school. EV stated that she must ensure that staff have a blue card referring to the protection of children.
  12. [137]
    EV was also cross-examined about the incident involving one of FCH’s children that resulted in the child protection proceedings, and other references to allegations in the Department of Child Safety documents. EV referred to a history of FCH’s daughter being exposed to domestic violence as a result of her mother’s partner at the time. After the child protection proceedings ended, FCH became the carer of his daughter, together with EV.
  13. [138]
    EV stated at the hearing that FCH ensures that his daughter knows all of her brothers and sisters. EV also stated that she would not hesitate to leave her own nieces and nephews in FCH’s care, and gave evidence about her observations of interactions between FCH with her own nieces and nephews.
  14. [139]
    FCH’s daughter, NEH, gave evidence about FCH’s good character and his relationship with his children. NEH refers to FCH as being a role model in her life. In her statement, NEH states that ‘My Dad has been a very big role model in my life for his is a hard work ethic, respect for his family and friends, and overall being a loving father.[80]
  15. [140]
    The Tribunal found NEH to be an honest and reliable witness. NEH currently works as [redacted] at [redacted]. NEH has read the decision-maker’s ‘reasons document’.
  16. [141]
    NEH was cross-examined at the review hearing after she had read the respondent decision-maker’s reasons document. She was asked whether having read the document, if her evidence had changed. NEH stated that it did not ‘take away [her] upbringing’. She stated that her father (FCH) is ‘not [that] type of person [to] put kids in danger’. She stated that she has not seen her father act ‘out of line’ and stated that having read the document it does not change her mind.
  17. [142]
    NEH gave evidence about FCH’s relationship with his children stating that it is ‘very good’. She stated that FCH encourages contact between the children, and when questioned about FCH’s strengths, stated that ‘[He is] a smart fella, respectful, kind, understanding, good bloke’. When asked about FCH’s weaknesses she stated ‘underestimating himself. He doesn’t think he’s smart’.
  18. [143]
    The Tribunal accepts the evidence given by DQ, EV and NEH in relation to FCH’s interactions with children and young people including his own children, his good character as a person; and how he conducts himself in a work environment and in the community.
  19. [144]
    XT prepared a report that refers to a clinical psychological examination of FCH with opinions provided relating to FCH’s history including criminal and sexual histories, and his social interactions and work histories. XT also provided an opinion in relation to FCH’s suitability or otherwise, for work within child related employment situations. XT reports that based on his clinical examination he found ‘no evidence of any psychological illness’.[81] XT reports that he found no symptoms consistent with a ‘mood disorder or an anxiety related disorder, nor of a psychotic or extant personality disorder’.[82]
  20. [145]
    XT reports that FCH, in relation to the offending behaviour, denied ‘any culpability, wrongdoing, or having engaged in illegal behaviours’.[83] In relation to the criminal history involving perjury, XT reports that the history is ‘dated’ and ‘reflect[s] a likely naivety and a lack of sophistication and a comprehension in relation to the issues…’.[84] In relation to the public urination offences, XT reports that these offences are minor in nature and ‘not relative to an adjudication of his suitability to work with minors driven by possible sexual proclivities towards children’.[85]
  21. [146]
    XT reports that there is no evidence of promiscuity. XT also reports that he discussed with FCH his ‘naturally open, friendly and engaging manner’ that is reported to ‘at times’ place him at ‘levels of risk for allegations to be made’. XT reports that FCH recognised this may be the case, and recognised that he ‘needs to moderate this and in so doing, maintain a much more reserved and distant orientation towards adolescent or teenage girls’.[86] XT reports:[87]

[FCH] appeared to recognise the importance of adopting such a strategy, seems genuine and was something he felt committed to. Taking all of my observations and evaluations together I form the opinion FCH posed a very low risk of future sexual offending against children.

  1. [147]
    XT gave oral evidence by telephone. XT was cross-examined about FCH’s sexual history and the number of children he has fathered. XT was questioned about whether the issue of promiscuity is a risk factor in relation to a risk towards children. XT said ‘no, I don’t think so’. XT was questioned about the reference in his report that ‘there is no evidence of promiscuity…’. XT stated that he based that opinion from the way FCH described himself, and referred to FCH having engaged in a number of longer term relationships and that as a younger single man had engaged in ‘the odd one night stand’.
  2. [148]
    During cross-examination XT agreed that having now heard FCH had approximately [redacted] to approximately [redacted] (as was put to him on the first day of the hearing) he ‘didn’t get the full picture’ about FCH. XT stated, however, that it would not change his view of a risk that FCH poses to children, but stated that it did move his confidence in his opinions, stating ‘it moved my opinions away from the firmness that I did have’. XT stated that he did not think that it moved his opinion ‘to a large extent’, but it certainly did affect it. XT stated that, in terms of a risk potential to offending against children he did not (in his opinion) consider someone who has many children as changing his propensity to offend against children. XT stated that it ‘tells me something’ about FCH’s openness. XT stated that having those children to other women, provided they are within acceptable age limits for relationships ‘doesn’t go towards increasing [FCH’s] risk of offending against children’.
  3. [149]
    XT was cross-examined about any ‘risk factors’ in relation to FCH. XT stated that he did not see any risk factors in FCH’s case, referring to FCH as not having any cognitive distortions, nor a deviant sexual history, nor a deviant criminal history in terms of sexual offences. XT stated that FCH has ‘roots in the community’ because he has a [redacted], a reliable work history and no mental health issues that he can determine. XT stated that in relation to all of the major risk factors which go towards sex offences against children, FCH ‘comes at very lowly levels of risk on all of [those factors]’.
  4. [150]
    During re-examination, XT was asked about whether he had specifically questioned FCH in relation to the number of children he had fathered. XT stated that he could not remember, but was taking a history from FCH (during the interview) and was asking him about what children he had and FCH mentioned to him his [redacted] daughter and his [redacted] son.
  5. [151]
    The Tribunal found XT to be an honest and reliable witness with experience and qualifications as a psychologist. The Tribunal accepts XT’s evidence and opinions about FCH’s past history, ‘risk factors’ and mental health issues.

Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists?

  1. [152]
    FCH has a history of offending behaviour including charges for disqualifying offences. FCH was discharged on all counts in relation to the charges of common assault (alleged to have been committed in 2001) because a nolle prosequi was entered on [redacted] 2005.
  2. [153]
    For the charges of common assault (alleged to have been committed in 2001) that were previously identified as charges of indecent treatment of children under 16 years of age, a jury returned a verdict of not guilty on [redacted] 2003. The complainant in that matter was aged 15 years at the time of the alleged charge and would have been aged 17 years at the time of the trial and when she gave evidence in the criminal proceedings.
  3. [154]
    For the charges of indecent assault and rape (alleged to have been committed in 1997), the complainant was aged 16 years (at the time) and would have been aged 22 years at the time of the trial and when she gave evidence in the criminal proceedings. A jury returned a not guilty verdict on all counts on [redacted] 2003.
  4. [155]
    There are some similarities in the allegations that resulted in the charges of indecent assault and rape; and the common assault charges as submitted by Ms Heath for the respondent. I accept that both complainants were young females, were known to FCH at the time the offences are alleged to have taken place and the allegations involved inappropriate touching by FCH referred to as ‘actions unwanted’ by Ms Heath in closing oral submissions. There are some differences however in the allegations resulting in the charges such as the circumstances of the allegations and when the allegations were reported to the QPS. In relation to the indecent assault and rape charges the allegations (as alleged) took place when the complainant was with FCH in a public place (the movies) and later when the complainant was alone with FCH in his private residence. The charges of indecent assault (as alleged) took place in the complainant’s private residence. For the charges of indecent assault and rape there was a delay in reporting the allegations because the complainant did not speak to police until 2001 being some years after the incident is alleged to have taken place (in 1997).
  5. [156]
    Ms Heath made oral submissions about the evidence given by the complainants and witnesses in the criminal proceedings as it appears in the QPS material. Ms Heath argues that consistent evidence was given (by the complainants and witnesses) to the police and at trial (in the District Court). Ms Heath correctly argues that the role of the Tribunal on review is not to determine the innocence or guilt of FCH and that the charges can be taken into account in the review proceedings in determining FCH’s eligibility to hold a blue card.
  6. [157]
    I have considered all of the evidence in this review proceeding and I am not satisfied to the required Briginshaw standard[88] that because serious allegations were made about FCH, it would not be in the best interests of children if FCH was to hold a blue card.
  7. [158]
    For some of the charges, the evidence of the complainants and their witnesses was tested before a jury and FCH was found not guilty. For other charges, a nolle prosequi was entered so the prosecution did not proceed with the matter. FCH has consistently maintained that the allegations are not true. This is reflected in the transcript of interviews in the QPS material (after the allegations were made) and in FCH’s evidence in the review proceeding.
  8. [159]
    I have considered the earlier charges of perjury and the charge of behave in an indecent manner and the later charge of urinating in a public place. I accept FCH’s evidence given in the review proceedings that for the perjury charge he was confused and young. I accept FCH’s evidence that he was employed [redacted] after the convictions (for perjury and behave in an indecent manner) and during his employment he conducted himself in a respectful manner. There is a reference in FCH’s material relied upon in the review proceeding that refers to his ‘enthusiasm and dedication[redacted].[89]
  9. [160]
    There is evidence of FCH’s [redacted]. FCH was given [redacted] from the [redacted] to continue [redacted] following a mediation. The [redacted] stated (in 1997):[90]

Generally, I was impressed with the enthusiasm and dedication exhibited by [redacted] and at the meeting I expressed my belief that [redacted] should attempt where possible, to [redacted] of his calibre.

  1. [161]
    I have considered the transcript of the criminal compensation proceedings. I do not accept the oral submissions made by Ms Heath that the Tribunal should draw adverse inferences about FCH’s creditability in this proceeding because of the findings made [redacted] in the criminal compensation proceedings reflected in the transcript. Ms Heath submits that the transcript shows a failure (by FCH) to exercise judgment and restraint around [redacted]. Ms Heath submits the transcript of the proceeding is relevant to FCH’s credit because the Judge found that FCH [redacted]. Ms Heath submits that this puts the accused in a situation of ‘vulnerability’ because FCH had (at the time) [redacted].
  2. [162]
    Although the presiding Judge found that FCH was [redacted], it is also apparent from the transcript in relation to the sentencing judge’s remarks that the Judge for the criminal proceedings did not make this finding. The Judge in the criminal compensation proceedings has simply preferred the evidence of the accused to FCH.
  3. [163]
    I accept FCH’s evidence given in the review proceedings that he did not think he was [redacted]. FCH relies on [redacted] in the review proceedings that he says was provided to his instructing solicitor at the time he made the criminal compensation application [redacted]. The [redacted] dated [redacted] refers to a statement made by FCH about [redacted]. The relevant extract from the report is as follows (emphasis original):[91]

[Redacted]

  1. [164]
    I am not satisfied that the transcript of the criminal compensation proceeding tempers FCH’s evidence given in the review proceedings for the purposes of determining whether this is an exceptional case.
  2. [165]
    In relation to the Department of Child Safety material, I am not satisfied to the required Briginshaw standard that because notifications and ‘risks’ are recorded in the Department’s material it would not be in the best interests of children if FCH was to hold a blue card.
  3. [166]
    I accept FCH’s evidence given in the review proceeding about his daughter and son including attempts made by him to report his concerns (some years ago) about his daughter to the Department of Child Safety and the QPS. There is material before me relied upon by FCH in this proceeding that documents his complaints about inaccurate information recorded in Department of Child Safety documents used in the earlier child protection proceedings. There is also a transcript of the presiding Magistrate’s remarks and evidence from FCH’s legal representative about the outcome of the child protection proceedings.
  4. [167]
    I accept FCH’s evidence given in the review proceeding about his interactions with his children and protective strategies that he has put in place (to protect his children). FCH’s evidence is supported by the evidence of his witnesses including an independent witness (psychologist). XT (psychologist) reports a ‘very low level’ of risk in relation to FCH.

Conclusion

  1. [168]
    The Tribunal has considered all of the material and evidence including the serious allegations made by young females that resulted in charges against FCH. FCH has consistently maintained throughout the review proceeding and when speaking to police some years previously (about the allegations), that the allegations are untrue.
  2. [169]
    There is evidence before the Tribunal of insight in relation to the offending behaviour and protective strategies that FCH has put in place in dealing and interacting with children and young people. There is also evidence before me of FCH’s positive interactions with his many children and evidence of his good character as a father and role model to his children.
  3. [170]
    FCH’s evidence given in the review proceedings is supported by his witnesses including friends and one of his children. There is also expert evidence from a psychologist about FCH’s history, risk factors and mental health issues.
  4. [171]
    The safety and wellbeing of children are paramount in this review proceeding and the Tribunal must arrive at the correct and preferable decision. The decision-maker has cross-examined FCH at length about all of the allegations and the relevant material. This includes FCH’s witnesses and his expert witness. The Tribunal is satisfied having considered all of the evidence to the required Briginshaw standard that this is not an exceptional case in which it would not be in the best interests of children to issue a positive notice. The correct and preferable decision is to issue a positive notice to FCH.

Non-publication order

  1. [172]
    The Tribunal has the power under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to prohibit the publication of information that might enable a person or people such as FCH’s name and the names of his children to be identified in circumstances where it would not be in the interests of justice to identify their names.
  2. [173]
    Some of the material considered by the Tribunal in this review proceeding contains information about child safety notifications with the Department of Child Safety and incidents (as alleged) involving domestic violence. There are also serious allegations concerning FCH made by two complainant children (at the time) that led to charges and criminal proceedings. There are also charges that did not proceed because a nolle prosequi was entered. This case also involves a consideration of material that could lead to the identification of FCH and his children because of the unique circumstances of the matter such as [redacted]. The material must be considered in the context of [redacted].
  3. [174]
    Both parties have provided written submissions in relation to the identification of FCH’s name and publication of reasons. FCH’s legal representative argue that the Tribunal’s reasons should not be published because it would lead to FCH and his children being identified. The decision-maker submits that FCH’s children should be protected but the decision should be published.[92] The decision-maker submits that the circumstances leading to the [redacted].
  4. [175]
    The objects of the QCAT Act require the Tribunal to be open and accountable.[93] The Tribunal is satisfied that the public interest is not served in this case by disclosing or publishing information that could lead to the identification of FCH because this will lead to the identification of his children. The Tribunal will therefore prepare two sets of reasons, one identified set of reasons to be sent to the parties (the applicant and the respondent). The Tribunal will publish a set of reasons to be de-identified and relevant information redacted so publication of the reasons cannot lead to the identification of FCH and his children. This includes the applicant’s name, references to any locations where the applicant and his children reside or work, the location of this review hearing, the names of the applicant’s legal representatives in this review and other legal proceedings, the names of the applicant’s children, the names of any witnesses personally known to the applicant, any personal details of the applicant including work history, details of the applicant’s claim for compensation, the locations of any criminal and legal proceedings relating to the applicant and any information that could lead to the identification of the applicant and his children.

Footnotes

[1]Decision made on 25 May 2015 - see Exhibit 5 at 223, 189.

[2]Exhibit 1.

[3]Respondent’s outline of submissions filed on 14 April 2016 at [24].

[4]Ibid.

[5]Ibid.

[6]Ibid at [24](ix).

[7]Respondent’s outline of submissions filed on 14 April 2016 at [25].

[8]Ibid.

[9] Working with Children Act s 221.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.

[11] Working with Children Act s 225.

[12] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

[13]Ibid.

[14] Working with Children Act s 236, 226.

[15] Commissioner for Children and Young People & Child Guardian v Maher & Anor [2004] QCA 492 [29].

[16][2011] QCATA 291.

[17]Ibid at [32].

[18][2004] QCA 492.

[19] Commissioner for Children and Young People and Child Guardian v FGC [2011]; QCATA 291 at [33].

[20]Ibid.

[21] Working with Children Act s 5.

[22]Ibid at s 6(a).

[23]Exhibit 1.

[24]Exhibit 5 at 13.

[25]Ibid at 16.

[26]Exhibit 5 at 51-55.

[27]Exhibit 5 at 56-65.

[28]Exhibit 5 at 66-68.

[29]Ibid at 73-77.

[30]Ibid at 69-70.

[31]Ibid at 71-72.

[32]Exhibit 5 at 93-143.

[33]Ibid at 107 line 40.

[34]Exhibit 7.

[35]Ibid.

[36]Exhibit 5 at 35.

[37]Exhibit 5 at 39.

[38]Ibid at 41.

[39]Exhibit 5 at 78-82.

[40]Ibid at 80.

[41]Exhibit 5.

[42]Ibid at 78-82.

[43]Ibid at 88.

[44]Ibid.

[45]Exhibit 5 at 92.

[46]Ibid at 144-148.

[47]Ibid at 145.

[48]Ibid.

[49]Ibid at 146.

[50]Ibid at 93-148,149-170.

[51]Ibid at 105.

[52]Ibid at 128.

[53]Exhibit 5 at 20 (reasons).

[54]Ibid at 118.

[55]Exhibit 7, Transcript 4.

[56]Ibid at Transcript 1.

[57]Exhibit 7, Transcript 6.

[58]Exhibit 5 at 10.

[59]Ibid at 25.

[60]Ibid at 139.

[61]Exhibit 10 at 35.

[62]Ibid at 34.

[63]Ibid at 16.

[64]Exhibit 7, Transcript 7 at 2.

[65]Ibid at 3.

[66]Ibid.

[67]Exhibit 7, Transcript 7 at 3.

[68]Ibid.

[69]Ibid at 7.

[70]Exhibit 8 at 8.

[71]Exhibits 6 and 8.

[72]Exhibit 6.

[73]Ibid at [5].

[74]Transcript of Proceedings filed on 26 April 2016 in accordance with a Direction made on 13 April 2016.

[75]Transcript of Proceedings dated [redacted] 2005 filed on 26 April 2016 at 2.

[76]Exhibit 1.

[77]Exhibit 4.

[78]Exhibit 12.

[79]Ibid.

[80]Exhibit 13.

[81]Exhibit 3.

[82]Ibid.

[83]Ibid.

[84]Ibid.

[85]Ibid.

[86]Exhibit 3.

[87]Ibid.

[88] Briginshaw v Briginshaw (1938) 60 CLR 336.

[89]Exhibit 2.

[90]Ibid.

[91]Exhibit 8 at 142.

[92]Submission filed on 28 April 2016.

[93]QCAT Act s 3.

Close

Editorial Notes

  • Published Case Name:

    FCH v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    FCH v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 184

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    17 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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