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Queensland Judgments
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  • Unreported Judgment

GLP v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 242

CITATION:

GLP v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 242

PARTIES:

GLP

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML033-16

MATTER TYPE:

Childrens matters

HEARING DATE:

14 June 2016

HEARD AT:

Brisbane

DECISION OF:

Member Quinlivan

DELIVERED ON:

27 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive Officer, Public Safety Business Agency to issue the applicant GLP with a negative notice is confirmed.

2. The application by the Commissioner for an order prohibiting publication of identifying material is granted

CATCHWORDS:

Childrens matters - negative notice - continuing drug use - extensive criminal history - biological and non-biological children

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

GLP

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency represented by HP

REASONS FOR DECISION 

  1. [1]
    GLP (the applicant) is a 31-year-old man who lives in a southern Brisbane suburb. He seeks a positive notice and a Blue card because he wants to return to a job as a “high-end” storeman at the Wesley Hospital.
  2. [2]
    He described his former job as requiring really “finicky” attention to detail that involves looking after 65% of the end-users in the hospital.
  3. [3]
    The applicant applied for a positive notice and Blue card on 15 July 2015. On 2 February 2016 he was advised by the acting Deputy Chief Executive Officer of the Public Safety Business Agency that his application had been unsuccessful and that he was to be issued with a negative notice.
  4. [4]
    On 8 February 2016, he applied to the Queensland Civil and Administrative Tribunal (QCAT) seeking a review of the decision. He asserted in his application that the documentation at the time contained incorrect information which automatically excluded him from obtaining a Blue card.
  5. [5]
    In particular, he claimed that since submitting his original Blue card application, his criminal history containing a charge of “supply dangerous drugs” had been downgraded and finalised as a possession charge. Further he included a letter from the Department of Children's Services in the form of a “Child Safety Investigation and Assessment” stating that he presents no threat of risk or harm to children. Therefore, he says that a Blue card should be granted.

The applicant's story

  1. [6]
    The applicant was born in 1985. His parents divorced in 1990 and he has had no contact with his father since that time. He attended and was expelled from a number of schools in the Brisbane region. After a couple of attempts to return to school he obtained employment in 2003 where he stayed until 2004 at which time he started smoking pot.
  2. [7]
    His criminal history appears to commence in 2003 and continues through until at least October 2015.
  3. [8]
    In 2014 he became a sole parent to GR (not his biological son) who is 4yo and GC his biological son who is 2½yo. Since then he says that he has had to reassess and completely change his lifestyle.
  4. [9]
    In support of his application, he says that his recent drug related offences were not related but isolated events that he claims being on probation and having sessions with his psychologist are helping him to deal with.
  5. [10]
    He submits that he has worked for most of his life after his failed attempts at school and has always been given good references for his work ethic. He says that he enjoys work and believes that he offers an employer more than the required effort at the job.
  6. [11]
    He believes that he suffered emotionally from a lack of paternal interest and used drugs as a prop to manage day-to-day issues.
  7. [12]
    He claimed that his sons have given him a new foundation to build on and based on comments from his social worker and other people, who know his boys, he feels he is on the right course.
  8. [13]
    He says that he has managed to live a happy and normal life. He has previously played sport at school and at weekends. He has taught breakdancing and performed as part of a dance troupe professionally since his early teens.
  9. [14]
    He says that his interaction with women has been normal but with no serious relationships except the boys’ mother who has not been part of their lives since January 2014. He claims his boys are both happy and well-adjusted. They have the usual childhood illnesses mainly due to attending day care three days per week.
  10. [15]
    Regarding his immediate family, he says he has a close relationship with his mother and a good rapport with his stepfather. His sister lives overseas but he claims they talk almost weekly with most conversation focused on the antics of his sons.
  11. [16]
    In summary, he seeks to emphasise the financial and personal effects of this process on him and his family. He says the decision to issue him with a negative notice has had a detrimental effect on his employment prospects.
  12. [17]
    He asserts that having put the bulk of his offending behind him and whilst currently engaging in counselling regarding anger management, drug history and coping mechanisms coupled with his supervised probation order, he feels as though, given the opportunity to allow his history to remain history, he has everything in place to continue making forward progress both within his personal and professional environment.

The applicant's case

  1. [18]
    The applicant attended the hearing in person. He provided a psychological report from FR, Psychologist, dated 13 April 2016 and the letter from the Department of Communities, Child Safety and Disability Services (the Department) dated 25 February 2014.
  2. [19]
    He provided three statements regarding his employment history, two of which expressed some knowledge of his criminal history but did not provide further details. He also provided a statement from Kyabra Community Association Inc confirming his 2014 attendance at a course titled Circle of Security.
  3. [20]
    At the hearing he did not call any witnesses to support his case. With respect to FR he asserted that he couldn't afford to pay her to give evidence.
  4. [21]
    In her report FR points out that her relationship with the applicant is as his treating psychologist. At the time, he had attended six appointments that were primarily focused on the applicant’s sleep hygiene, his parenting concerns and the stress he was experiencing as a result of his suspension from work due to the rejection of his application for a Blue card. Apparently, his stress and sleep have improved since finding new employment in a similar role that did not require a Blue card.
  5. [22]
    FR also commented on the applicant’s suitability for child-related employment. She said that the applicant had not reported to her any reason to believe that he would be unsuitable for child-related employment.
  6. [23]
    She said that to her knowledge, none of his prior offences had involved children and had all been related to drug use. He presented as a dedicated and loving father who is working hard to provide a safe and stable environment to not only his son, but also to his son's older half-brother who he also cares for with the help of his parents.
  7. [24]
    There were aspects of FR’s Report that would have benefited from further exploration for example her comments that none of the applicant’s offending behaviour has had any impact on children, the stated goals of therapy were not to assess or treat risk of reoffending and whether the applicant has adequate preventative strategies in place.
  8. [25]
    She also made no comment regarding the alleged incidents of violence between the applicant and his former partner but states that his criminal history has been solely drug-related and the behaviour that led to many of these offences is no longer present. Consequently, without the benefit of hearing FR only limited weight can be attached to her Report
  9. [26]
    The Tribunal also considered extensive material from the Department detailing their involvement with the applicant, his former partner (the mother of both children) and the children since 2014.
  10. [27]
    What is the relevant law?
  11. [28]
    The relevant legislation is the Working with Children (Risk Management and Screening) Act 2000. Section 6 of the Act provides that the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects them from harm and promotes their well-being. Section 360 of the Act confirms that principle for the purposes of reviewing a child-related employment decision.
  12. [29]
    Section 221 of the Act provides that where a person has been convicted of an offence other than a serious or a disqualifying offence as defined in the Act then a positive notice must be issued unless it is an “exceptional case” where it would not be in the best interests of children for the applicant to be issued with a positive notice.
  13. [30]
    The meaning of “exceptional case” is not defined in the Act but the decision in Maher’s case[1] provides that whether a case is exceptional is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act. What constitutes an exceptional case is a question of fact and degree.
  14. [31]
    The Tribunal is required to consider the circumstances of the applicant within the legislative framework to determine whether an exceptional case exists.
  15. [32]
    The purpose of the review is to reach the correct and preferable decision. The Act requires that this be done by way of a fresh hearing on the merits.
  16. [33]
    Any hardship or prejudice suffered by the applicant as a result of a refusal to issue a positive notice is irrelevant to a determination of the issue[2].
  17. [34]
    The applicant has not been convicted of a serious or disqualifying offence. Therefore, he must be issued with a positive notice unless this is an exceptional case.
  18. [35]
    Section 226(2) of the Act sets out the matters that the Tribunal must consider in determining whether an “exceptional case” exists. However, the list is not exhaustive and does not confine the Tribunal to consider only those matters.
  19. [36]
    The applicant has numerous convictions and charges recorded in his criminal history. These include convictions and charges for supplying dangerous drugs.
  20. [37]
    He also has convictions for assault occasioning bodily harm with circumstances of aggravation, commit public nuisance, behave in a disorderly manner, possess a weapon, property offences, breaches of bail and probation conditions and driving with a middle range prescribed concentration of alcohol. I note that in March 2007 the applicant was charged with the serious offence of trafficking in dangerous drugs but the charge did not proceed.

The Respondent’s Position?

  1. [38]
    The respondent referred the Tribunal to the decision in Maher’s[3] case in relation the possible risk and protective factors,. In Commissioner for Children and Young People and Child Guardian v Eales[4],the Appeal Tribunal considered the Tribunal’s reasoning in the Appeal decision in Maher’s case. The Court of Appeal’s clarified that:

“The Court of Appeal (in Maher’s case) did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. ... At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a Blue Card to be issued to a person …What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criteria specified by the Act”.

  1. [39]
    The respondent submitted that the protective factors in relation to the applicant include:
  • His commitment to his young sons and the motivation it provides for him;
  • The Department’s acknowledgement and support for his ongoing care of his sons;
  • The considerable support he receives from his mother and stepfather;
  • The parenting programs that he has completed;
  • The support networks he has put in place;
  • His evidence that he has ceased using methamphetamine;
  • His evidence that he is no longer supplying drugs;
  • His clearly expressed intention to turn his life around and manage his anger issues;
  1. [40]
    In contrast, the respondent also highlighted a number of risk factors which include:
  • The applicant’s substantial offending history that is not only recent but also ongoing with respect to regular drug use;
  • The evidence that he has committed offences while on bail and probation and the potential risk of recidivism;
  • The evidence that he has previously supplied drugs as well as using drugs personally;
  • He is currently subject to Probation and supervision. The lack of evidence demonstrating how he will act after his Probation ceases;
  • The applicant's evidence that he continues to use cannabis on a daily basis for pain relief and intoxication. He did not indicate any intention to stop using cannabis;
  • He failed to demonstrate any insight regarding how his use of drugs may impact on his ability to care for children;
  • The lack of any evidence of professional treatment undertaken by the applicant apart from the qualified report provided by the psychologist, FR;
  • The actual details of the applicant’s criminal history with a number of violence related offences and the serious penalties which he has been subject to.
  1. [41]
    The respondent submitted that when considered in totality the evidence raises serious concerns about the applicant’s ability to care for children.
  2. [42]
    The respondent emphasised that applicant did not call any witnesses and therefore there was no corroboration for any of the evidence which he provided.
  3. [43]
    The respondent submitted that a positive notice and blue card would allow the applicant to operate in all areas of regulated employment because there is no provision for conditions to be applied to a Blue card.
  4. [44]
    Therefore, the respondent submitted that this is an exceptional case in which it would not be in the best interests of children for the applicant to obtain a positive notice and Blue card.

Decision

  1. [45]
    The applicant is an articulate and highly intelligent man. He presented his application in a confident and transparent manner. He spoke proudly about how he deals with the police. He clearly understands the criminal justice system and gave an example of how he claimed to have convinced the police to reduce a charge against him.
  2. [46]
    There is no doubt that he is extremely motivated to ensure that his sons are well care for.  He has taken significant steps to put in place appropriated arrangements for their care and upbringing. He also appears to be determined to shield them from his drug related activities.
  3. [47]
    The question for the Tribunal is whether this is an exceptional case such that it would not be in the best interests of children for him to be issued with a positive notice. The legislation provides that unless it is an exceptional case he should receive a positive notice.
  4. [48]
    The applicant acknowledged that he did not call any witnesses because he felt that he could convince the Tribunal himself. What the applicant achieved was that he has demonstrated that he has made some worthwhile changes in his life and that to some extent he is living his life in a more balanced manner.
  5. [49]
    However, at this point in time, his attempts to address his behaviour remain a work in progress. Some of his actions demonstrate some understanding of what is considered to be a law abiding approach to life but even in that context, he has not established that he has insight into how his drug related behaviour and disregard for legal restrictions on his choice of conduct may have impacted on other vulnerable people.
  6. [50]
    It may well be that if the applicant can continue to address these issues then in the not too distant future, he may be successful in bringing an application for a positive notice. At this time, I find that a number of the risk factors are yet to be addressed.
  7. [51]
    In the reported decision of Hedigan J in the matter of Kent v. Wilson[5] his Honour said:

"The use of the phrase 'exceptional circumstance' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example. Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."

  1. [52]
    In this matter I have carefully considered all of the evidence presented. I note that the granting of a positive notice is unconditional. The applicant’s own evidence is clear that despite being on probation he is still regularly using drugs I am conscious of the legislative intention “[6]to promote and protect the rights, interests and wellbeing of children in Queensland‟.
  2. [53]
    I am satisfied that this is an “exceptional case” where it would not be in the best interested of children for the applicant to receive a positive notice. I therefore confirm the decision of the Chief Executive Officer.
  3. [54]
    It was submitted by the respondent that there should be a prohibition order in relation the material supplied by the Department, pursuant to section 189 of the Child Protection Act 1999 and a non-publication order pursuant to section 66 of the QCAT Act on the basis the material may identify a child who has been subject to an investigation of an allegation of the risk of harm.
  4. [55]
    A non-publication order may be made if the Tribunal considers the order is necessary to avoid interfering with the proper administration of justice, to avoid endangering the physical or mental health or safety of a person, to avoid offending public decency or morality, or to avoid the publication of confidential information or information whose publication would be contrary to the public interest, or for any other reason in the interests of justice.
  5. [56]
    This application involves material about children who have been the subject of investigations by the Department and it would be an interference with their privacy if information was released which would allow them to be identified. I am satisfied that a non-publication Order should be made.
  6. [57]
    I make the following orders:

1. The decision of the Chief Executive Officer, Public Safety Business Agency to issue the applicant GLP with a negative notice is confirmed.

2. The application by the Commissioner for an order prohibiting publication of identifying material is granted.

Footnotes

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

[2] CEO, Dept. of Child Protection v Scott (No2) WASCA 171 at para 23.

[3] Maher: ibid.

[4][2013] QCATA 303.

 

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

[6] Section 5 Working with Children (Risk Management and Screening) Act 2000.

Close

Editorial Notes

  • Published Case Name:

    GLP v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    GLP v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 242

  • Court:

    QCAT

  • Judge(s):

    Member Quinlivan

  • Date:

    27 Jul 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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