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  • Unreported Judgment

SJJ v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 320

CITATION:

SJJ v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 320

PARTIES:

SJJ (Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML096-16

MATTER TYPE:

Childrens matters

HEARING DATE:

16 August 2016

HEARD AT:

Gympie

DECISION OF:

Member Clifford

DELIVERED ON:

29 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 8 April 2016, to issue a negative notice to SJJJ, is confirmed.
  2. The Tribunal prohibits the publication of the contents of all the documents provided by the Department of Communities, Child Safety and Disability Services, provided to it under a Notice to Produce, dated 1 July 2016.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BLUE CARD – where no serious or disqualifying offence – whether exceptional case - where a number of breaches of domestic violence orders – where last offence over 5 years – where Police last called to disturbance recently - where applicant ‘clean’ of alcohol and drugs for 18 months – where protective factors insufficient - where satisfied exceptional case is established. 

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

Carr v Chief Executive Officer, PSBA [2016]

QCAT 106;

Green v Chief Executive Officer,

PSBA [2015] QCAT 299;

Jennifer Mountford v Chief Executive Officer,

PSBA [2014] QCAT 485;

Commissioner for Children and Young People

and Child Guardian v Ram [2014]  QACTA 27;

Queensland Civil and Administrative Tribunal Act 2009;

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

APPEARANCES and/or REPRESENTATIVES:

APPLICANT:

SJJ represented himself

RESPONDENT:

Ms Paula Hughes, Legal Officer, representing the Chief Executive Officer, Public Safety Business Agency.

REASONS FOR DECISION

Background

  1. [1]
    SJJ is a 45 year-old man who lives on the Sunshine Coast with his partner of five years and their three children. SJJ has another three children from an earlier 7-year relationship.
  2. [2]
    In June 2015 SJJ applied for a ‘Blue Card’ to enable him, when required, to work with children in his employment with an adventure business that provides outdoors active recreation. On the 8 April 2016 the Respondent issued SJJ a ‘negative notice’. SJJ sought review of that decision with the Tribunal.

Legal framework

  1. [3]
    The Working with Children Act 2000 prescribes what decisions of the Chief Executive Officer, Public Safety Business Agency are reviewable, which persons may apply for review and what the Tribunal may or may not do in relation to the review.[1] The Queensland Civil and Administrative Tribunal (QCAT) Act provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that Tribunal may either confirm the decision of the Chief Executive Officer, or set it aside, and substitute it with its own decision, or return it to the Chief Executive Officer with appropriate directions.[2]
  2. [4]
    When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
  3. [5]
    The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that Applicants with non-serious convictions or charges are to be issued with a ‘positive notice’ unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. Furthermore the law provides ‘disqualifying offences’ disqualify a person from applying for a Blue Card, and ‘serious offences’ require the Chief Executive Officer to issue a ‘negative notice’ unless an exceptional case is made out, in that it would not harm the interest of children to issue a positive notice.[4]
  4. [6]
    The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor,[5] provided some guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case.  The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.[6]
  5. [7]
    SJJ has neither a disqualifying or serious offence as defined under the law. Thus, the statutory requirement in his circumstances is that SJJ be issued with a positive notice unless the Tribunal is satisfied that his is an exceptional case whereby, it would not be in the best interest of children to issue him a positive notice.

Evidence and material considered

  1. [8]
    In deciding this matter the Tribunal considered SJJ’s oral testimony and submissions, his application, supporting documents and references to the Respondent Agency; his application, Life Story, supporting documents and references to the Tribunal, and a Psychological Report dated 6 August 2016 prepared by Karen Ellis, Psychologist. The Tribunal also considered the Respondent’s Reasons for Decision and all supporting documents, and oral submissions.
  2. [9]
    The Tribunal also considered the oral testimony of Ms B.
  3. [10]
    The Tribunal also considered the ‘second bundle’ of material provided by Department of Communities, Child Safety and Disability Services under cover letter dated 12 August 2016, and Notice to Produce, dated 1 July 2016.[7] The Tribunal also considered SJJ’s concerns in relation to the accuracy of some of the details in those documents and his submissions of the possible bias against him by the Department in those documents given the apparent inaccuracy of the documents produced in the ‘first bundle’ of documents.

Issue – Is SJJ’s an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?

  1. [11]
    Firstly, in relation to the statutory considerations SJJ has no disqualifying or serious offences.
  2. [12]
    SJJ has a number of offences spanning from 1997 – 2010[8]: They are:
  1. Possession of dangerous drugs and utensils, 1997 (marijuana and ‘bong’);
  2. Breach domestic violence order, February 2008, April 2008, November 2009 and June 2010;
  3. Assault or obstruct Police, November 2009.
  1. [13]
    SJJ was variously fined ($150 - $750) with, and without conviction recorded.
  2. [14]
    Offences relating to violence and use of illegal drugs are directly relevant to employment that may involve children, and exposure to such behaviours, or persons with a history of such behaviour, may not be in their best interest physically, emotionally or morally.
  3. [15]
    The Tribunal received no information or reports in relation to SJJ as described under section 226 (2) (b) (c) or (d) of the Working with Children Act.

Circumstances of the offences

  1. [16]
    SJJ provided two written submissions and a Life History. SJJ also gave oral testimony. Firstly, SJJ testified that he recognized the mistakes that he has made in the past and testified that he has made a lot of progress in his recovery from substance abuse, mostly alcohol, which was a catalyst for poor behaviour. SJJ testified he has been attempting recovery since 2007. SJJ testified that he has been free of alcohol and drugs since 27 January 2015. SJJ stated that he is a better person now, stronger, with greater clarity about the past. SJJ stated that he wants to be a better person and provider for his family, and wishes to build a career around recreational tourism, that includes children.
  2. [17]
    In his Life Story SJJ advised that he was born in Melbourne but spent most of his life in Queensland when his parents moved here when he was an infant. SJJ described his family upbringing as ‘normal’ and advises that his parents are still together. SJJ described how his sister died unexpectedly following a medical procedure in 1981 and how this brought disruption to family life for a few years in which hostility and excessive alcohol consumption by his parents was a feature. SJJ testified that he started to drink alcohol when he was around 15-16 years old, and tried marijuana shortly after that period. SJJ advised he repeated year 12 because of poor results from skipping school and late nights. SJJ ultimately enrolled at University and graduated in Leisure Management, Majoring in Tourism and Recreation. SJJ outlined a life of regular alcohol consumption, his up and down relationship with his then girlfriend, travelling overseas and a bad experience when smoking marijuana, that had allegedly been laced with ‘ice’ following which he first consulted a psychiatrist. SJJ did not continue treatment as a work and training opportunity arose on Fraser Island. It was during this period (2002) SJJ first met his former partner Miss U. Some time later they moved in together. SJJ stated they drank alcohol and smoked marijuana together, and later took ecstasy. SJJ describes the relationship as having a few cracks around the edges. SJJ’s and Miss U’s first child was born in 2003, and the second followed in 2004. SJJ recalled following this period he and Miss U were arguing a lot about different things, that he became frustrated and that the yelling arguments would become physical with restraining and wrestling. It was around this time the Police first became involved in their lives and a Domestic Violence Order was taken out against him (2007). SJJ further described a chaotic lifestyle with the continuing use of alcohol and marijuana, commencing and ceasing treatment with an anti-depressant medication, moving house, moving in and out of the house with Miss U, the birth of their third child in 2008, losing his work in 2009 and being heavily in debt, and leaving Miss U in October 2009. In 2010 SJJ took a job away from the area in which Miss U and his children lived.
  3. [18]
    At hearing SJJ agreed the incidents with Miss U had occurred and that he had breached the Domestic Violence Order (dated 9 October 2007 and varied 15 December 2009). However, SJJ opined that the briefs were written to make him look like a bad guy, and testified that Police had told him he could take out a cross-order against Miss U because of her alleged behaviours, but stated he did not want to do this. SJJ further testified that he was not ‘against her doing University’, as described in one of the briefs, as he had helped her financially to undertake her course. In relation to the Assault Police offence, SJJ testified that he was not aggressive towards the Police, that he did not throw a punch as described in the Police brief, and he opined that the officer fractured his wrist when they fell to the ground after they knocked a picture frame off the wall that injured SJJ and drew first blood.
  4. [19]
    In summary, the Police Court Briefs describe the incidents as thus:  Regarding February 2008 offence (incident 14 February), SJJ arrived at Miss U’s home around noon and a heated argument ensued, Miss U took kitchen knife and screamed for him to get out of the house, he did so but shortly returned and further arguing ensued. Miss U left the premises and walked to a park bench and SJJ followed her still yelling and arguing until Police arrived. SJJ was Convicted for Breach DVO and fined $450.00.
  5. [20]
    Re: April 2008 offence (incident 21 February) Police called to house in the evening to a disturbance. SJJ was in the living room and Miss U in a bedroom. Miss U stated she had started arguing, that SJJ had done nothing and he was yelling to be heard over her. Miss U did not want him to go to jail. Police spoke with informant who advised female voice had been screaming get out for almost an hour when she called Police. Informant stated SJJ threatened her and was abusive when she went to check on Miss U’s welfare. SJJ was arrested and transported to the Station. He did not wish to have a formal record of interview, but opined to Police that the Order did not say he had to leave the premises, only that he was to be of good behaviour. SJJ was Convicted for Breach DVO and fined $400.00.
  6. [21]
    Re: November 2009 offences (incidents 24 October 2009). Miss U attended Police Station mid-afternoon in a distressed state. Miss U claimed SJJ had been drinking all day whilst she had been working on her University assignment at the computer. Miss U claimed SJJ came inside and tried to hug and kiss her, and that she pushed him away but he tried again and she felt intimidated. Miss U further claimed SJJ then asked her to make him lunch and when she refused he picked up a tomato, took a bite from it and pressed the tomato into her chest causing it to slop over her assignment. Miss U claimed she felt degraded and intimidated. Police then attended the house to speak with SJJ. When Police asked him to come to the Station he refused, and so Police attempted to put handcuffs on him. SJJ threw a punch towards Police and when Police attempted to restrain him a struggle ensued, and SJJ and Police fell to the ground. SJJ stopped resisting when advised he would be sprayed with OC Spray if he did not stop resisting. One Police Officer sustained a broken right hand and severely sprained left ankle as a result of the struggle. SJJ sustained a small laceration to the right of his forehead from a screw left exposed in the wall after an ornament frame was knocked off the wall. No conviction was recorded for either the Breach DV Order, or Assault/obstruct police offences. SJJ was fined $750.00 for the breach of Order, and $150.00 for the Assault/obstruct Police offence.
  7. [22]
    Re: June 2010 offence (incident 10 May 2010). Police were called to attend house around 12.30 pm in relation to a disturbance. Police spoke with Miss U who stated SJJ had attended her home, yelling and banging on her front door. When he saw she had friends over he became aggressive and was yelling obscenities. When Miss U asked him to leave SJJ started letting the air out of the tyres of Miss U’s friend’s car. SJJ and the friend wrestled in the front yard for a short time before SJJ decamped. Police attended SJJ’s home where he was arrested and transported to the Station. SJJ stated he had gone to see his children and got upset and angry when he saw the friends there. He stated there was no family court order or any written agreement in place where he could attend Miss U’s address to see his children. SJJ was Convicted for Breach DVO and a fine of $300.00 imposed.
  8. [23]
    A few days prior to the issuing of the original DVO, and concurrent to the above incidents, Child Safety documents record notifications concerning SJJ and his family on 3 October 2007, 14 February 2008, 24 October 2009 10 May 2010, and concerning his current family on 15 April 2014. In summary, these documents essentially repeated the information in the Police Briefs except for the 3 October 2007 notification that outlined an incident that occurred prior to the DVO being issued. That incident involved Miss U refusing SJJ entrance to the house because of an earlier argument and SJJ loudly banging and breaking a small panel on the door. Their two young children were in the house being put to bed at that time. Child Safety records note the Information does not provided any concerns in relation to the children and does not reach SDM threshold for a notification. Child Safety records note in relation to the 14 February 2008 notification that the children were not present at the time, noted Miss U was 33 weeks pregnant, but recorded that information does not indicate that the unborn child was at any serious harm as a result of the incident. Child Safety records note in relation to 24 October 2009 notification (breach of DVO and Assault/obstruct Police) that children were not present at the time of the incidents and noted that no weapons involved, no injuries, no threats by father about harm or abduct children, father affected by alcohol, severity of DV is minor. Level of risk to children: Children not at risk. Child Safety records note in relation to 10 May 2010 notification (friends car argument) father attended to see his children, no alcohol involved, severity of DV is minor, children were in view/hearing range of the incident, no threats towards children, the home is observed as safe and sanitary, Police observed the children to be fine and healthy, mother acted proactively, no significant risk of harm issues have been identified.

SJJ’s current circumstances, risk and protective factors

  1. [24]
    The Tribunal has taken the approach of considering relative risks and protective factors when deciding whether a particular case is an exceptional case. The Court of Appeal in Maher and Anor accepted this approach as one way of deciding whether an exceptional case is made out.
  2. [25]
    SJJ is currently living with Ms B and their three children in a rented property on the Sunshine Coast. They have lived there since late November 2015. Prior to that date they resided with Ms B’s Uncle in Brisbane. They have been a couple since 2011. SJJ is currently unemployed. SJJ testified that there is no formal arrangement in place for his older children, now aged nearly 13 and 12 years, and the third aged 8 years. SJJ states he always sees them on school holidays, birthdays and various weekends. He testified he and Miss U have a flexible approach. He stated that two weeks ago he took all his children to Byron Bay. He stated he has a civil relationship with their mother and they talk about school, money and clothes. 
  3. [26]
    SJJ testified that he has not had alcohol or drugs since 27 January 2015 and that he attends each AA and NA at least twice a week. SJJ attended a 7-week rehabilitation program in February – April 2015, and was confident it was a 100% success as he has no temptation to drink, and that he hates what it has done to his life. SJJ stated that anger management has been ongoing, and part of his recovery process. SJJ testified that he has recently been accepted into a 20-week (weekly attendance) anger management program “Men choosing change” conducted by the Uniting Church.
  4. [27]
    Child Safety records note in relation to a notification on 15 April 2014, SJJ and Ms B are parents of a newborn boy (at hearing SJJ noted baby was a girl). The records indicate Police had attended a DV incident between Ms B and SJJ on 26 February 2014 but there was no evidence of physical violence to warrant a DVO application. The Notifier’s concerns related to SJJ verbally abusing Ms B, stating he presents as very ‘controlling’ and regularly ‘demeans’ Ms B in his language and tone, and that SJJ’s aggressive behaviour intensifies when he drinks alcohol. It is unclear where baby is during these incidents of verbal abuse. The Notifier is aware the family have been evicted from their current residence due to numerous noise complaints. SJJ opined this notification was an over reaction, that it was not a major incident like with Miss U, that it was a noise complaint, a disagreement between a man and a woman. He described the residence as a duplex. SJJ disagreed he is either controlling or demeaning towards Ms B and he testified that he has never tried to control her.
  5. [28]
    SJJ testified that the Police had attended at residences he has shared with Ms B for noise or disturbance three times. SJJ testified that the last time the Police attended was ‘earlier this year’, around when they had ‘just moved in’. SJJ testified he was at the shop when the Police arrived but they spoke with him when he returned. SJJ testified there is no DVO in place in regards Ms B.  SJJ described this residence as a small Queenslander.
  6. [29]
    SJJ opined alcohol, substance abuse, anger and money concerns were central issues triggering his behaviour. He opined that he had a co-dependency with Miss U and stated that during this period he was a seasoned and heavy drinker of spirits, working long days and at two jobs.
  7. [30]
    SJJ reflected that his drinking made him emotionally unavailable to his children and exposed them to domestic violence. SJJ stated his children are the driving force to make him a better person. SJJ hoped his children would not be negatively affected, and recognized his behaviour as ‘absolutely’ inappropriate role modelling. He testified he wanted to go to Family Relationship counselling but that his was not agreed upon. SJJ says he has talked about his history of substance abuse to his older children and the detrimental effect of alcohol. He hopes they grow up with good social skills and are not anxious.  SJJ reflected his behaviour towards Miss U resulted in her not having a good attitude towards him, being nervous and angry towards him in response. SJJ testified he was not proud of his behaviour but opined he cannot do anything about the past, but knows he can be better than that.
  8. [31]
    Ms B provided a brief statement dated 4 April 2016, and testified at hearing.  Ms B stated SJJ was ‘just fabulous with all his children’ and a ‘good father figure’. Ms B testified SJJ never gets angry with his children, and she opined SJJ is very good with kids and very observant. Ms B commended SJJ for the steps he is taking to be a better person, husband and father, and testified that in the last year it has been ‘like living with a different person’. Ms B stated SJJ is much more organised and has a clarity of purpose. Ms B testified that she and SJJ have ongoing counselling together.
  9. [32]
    SJJ provided a positive unsigned reference dated 2 November 2015 from his former partner, and a positive unsigned reference from Steve Hamlin, ‘operations manager’, dated 11 May 2016. Neither attended for cross-examination. The Tribunal accords little, if any, weight to these references.
  10. [33]
    SJJ also provided a report from Karen Ellis, Psychologist, dated 6 August 2016. Ms Ellis was also not made available for cross-examination. However Ms Ellis noted that SJJ had attended 4 sessions with her and was scheduled for further sessions. Ms Ellis recorded she understood SJJ was applying for a Blue card. Ms Ellis noted SJJ’s history of traumatic and sudden losses in his youth and a tumultuous developmental period involving alcohol, drugs and violence. Ms Ellis noted SJJ was unable to take proactive steps towards separation and rehabilitation until he left the relationship. Ms Ellis opines SJJ’s insight into his past behaviour is commendable and that he has strategies against relapse such as attendance at AA and NA. Ms Ellis states SJJ’s substance abuse recovery is in maintenance phase where he is no longer fighting dependency urges and no longer struggling with impulse control.

Submissions

  1. [34]
    In oral submissions SJJ stated he understood the decision-making process and supported it. He acknowledged his history of violence to women and the affect violence has on children. He submitted he can’t change the past but he can be aware of it and the affect on others. SJJ submitted he would use understanding of his past behaviour as a light and guide for his future actions. SJJ submitted his life experience could help young people through life. He submitted he was not a risk to children and puts himself before the Tribunal and submits he is not an exceptional case and hopes for a positive outcome.
  2. [35]
    In summary the Respondent submitted that the question for the Tribunal is whether this is an exceptional case. The Respondent acknowledged the protective steps SJJ has taken to improve his life, noting drug and alcohol rehabilitation, counselling with Ms Ellis, attending AA and NA meetings regularly, a supportive partner and embarking in an anger management course.
  3. [36]
    The Respondent however submitted risk factors include a history of domestic violence over a period of time with aggressive and intimidating behaviour towards an at one time heavily pregnant partner, and on occasions his children were in attendance. The Respondent submitted domestic violence, exposure to drug and alcohol abuse is likely to have an adverse affect on his children. The Respondent also submitted the aggressive behaviour involved a neighbour, his partner’s friend and Police. The Responded submitted SJJ was a mature adult at the time of the offences and showed a persistent and wilful disregard for the law. The Respondent noted SJJ’s rehabilitation has only occurred within the last 18 months and submitted that he has not had a long-term opportunity to demonstrate ongoing commitment. The Respondent noted further that Police have attended disturbances at SJJ’s home as recently as early this year.
  4. [37]
    The Respondent submitted little weight should be given to the non-attending referees and submitted Ms Ellis’s report should not be given significant weight because she was not available for cross-examination and that there was no psychometric testing to assess the level of risk SJJ may pose.
  5. [38]
    The Respondent noted that the issuing of a positive notice was transferrable and unconditional across child related work, including foster care. The Respondent submitted SJJ’s case is an exceptional one in that it would not be in the best interest of children to issue him with a positive notice. The Respondent submitted the decision of the Chief Executive should be confirmed. 

Consideration and conclusion

  1. [39]
    The principles of the Working with Children Act are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. SJJ’s circumstances are captured by provisions that provide that given he has not been charged with a serious offence, he should be issued with a positive notice unless the Tribunal is satisfied an exceptional case is made out, in that it would not be in the best interest of children for SJJ to be issued with a positive notice.
  2. [40]
    Furthermore, when a positive notice/ Blue Card is issued, it is unconditional and transferable to enter into any field of child related occupation. It is not just issued for the purpose for which it was initially sought.
  3. [41]
    SJJ is a 45 year-old man who has had an undisputed history of alcohol misuse and/or dependence since he was a teenager, along with substance abuse (mainly marijuana, but including ecstasy). Substance abuse has been accompanied by argumentative, intimidating and aggressive behaviour towards his partners and others, and at times in the presence of his children and when his partner was pregnant. Police Briefs and Child safety Records outline the details of when authorities have become involved. SJJ does not deny these incidents occurred.
  4. [42]
    Alcohol and substance abuse has a devastating affect on the community. It adversely affects families, causing harm and demonstrating poor parental modelling.  It often leaves partners and children in heightened states of anxiety, particularly when accompanied by argumentative, intimidating and aggressive behaviour. SJJ’s first family was either subject to or observed this behaviour. Although SJJ tried to commence counselling or seek help during this time he was unsuccessful. It was not until SJJ moved away from his first family and some time later did he make any inroads into changing this life pattern of behaviour.
  5. [43]
    In 2011 SJJ met Ms B. They are still together and have three children. It is clear from the evidence SJJ’s and Ms B’s life together has not been plain sailing. They have moved house several times, including because of noise/disturbance complaints, and up until 27 January 2015, alcohol and substance abuse continued to be a feature in SJJ’s life. Since that date however SJJ has been clean of alcohol and drugs. He attended a 7-week rehabilitation program in early 2015 and is confident he will stay clean. SJJ attends both AA and NA at least twice a week each. SJJ is commended for this positive and protective change in his lifestyle.  Ms B testified since that time ‘it is like living with a different person’. Ms Ellis reports SJJ’s ‘substance abuse recovery is in maintenance phase’ and notes SJJ is scheduled for future sessions with her. Ms B testified she and SJJ have ongoing counselling.
  6. [44]
    In regard to SJJ’s history of poor anger control, SJJ testified that anger management is an ongoing phase of his recovery. He testified that he has very recently been accepted into a 20 week, weekly, course, ‘Men changing course’ conducted by the Uniting Church. This is also commendable and demonstrates SJJ’s commitment to change.
  7. [45]
    However, not withstanding these positive and protective steps, SJJ has a number of risk factors that outweigh these positive changes. Firstly, SJJ’s ‘clean’ period is relatively short given an around 30 year history of alcohol and substance abuse and accompanying criminal history that has essentially arose from such misuse. SJJ’s criminal history features drug misuse and violent or aggressive behaviour towards his family, property, neighbours and Police.
  8. [46]
    SJJ has limited opportunity at this stage to demonstrate to the Tribunal more positive examples of his changed pattern of behaviour. Moreover, whilst SJJ has remained ‘clean’ for 18 months, and has had no criminal charges or offences, he has had involvement with Police three times over disturbances between him and Ms B.  One disturbance, albeit prior to his sobriety, resulted in a notification to Child Safety in 2014, and a more recent disturbance described as early this year (2016). Whilst SJJ and Ms B minimised these arguments as just disagreements over everyday matters, the Tribunal does not accept this characterisation as common sense would suggest that it would be highly unusual for a neighbour to call Police or Notify Child Safety over a regular family disagreement whereby one may raise voices for a short period of time. Furthermore, SJJ’s very young children would ordinarily be present during such arguments.
  9. [47]
    Whilst SJJ provided some unsigned references, SJJ was not supported by any former employer or work colleague prepared to attend and testify on his behalf, and be cross-examined, for example as to his work record, his character or integrity. Ms Ellis’s report was supportive of SJJ, however gave only a limited view as it contained no psychometric testing as to future risk, and Ms Ellis did not attend for any questioning about her report.
  10. [48]
    Overall, the Tribunal is satisfied that notwithstanding some commendable steps and protective factors SJJ has in place, these factors are not sufficient at this time to outweigh the risk of a criminal history that included drug use and violence, and an ongoing pattern, albeit improving, poor anger control that has involved Police as recently as early this year.

Order

  1. [49]
    The decision of the Respondent of 8 April 2016 to issue SJJ a negative notice is confirmed. The Tribunal orders accordingly.

Child Safety documents

  1. [50]
    In relation to the Child Safety documents obtained under Notice to Produce, both parties agreed, and particularly given the inaccuracies, that the contents of the documents should not be published in any form except so far as they are described in these reasons.

Order

  1. [51]
    The Tribunal prohibits the publication of the contents of all the documents provided by the Department of Communities, Child Safety and Disability Services, provided to it under a Notice to Produce, dated 1 July 2016.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), sections 352 and 354.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), sections 17 - 24.

[3]  Op.cit, Working with Children Act, sections 6 and 360.

[4]  Op.Cit; Working with Children Act, sections 221 and 225.

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

[6]  Op.cit, Working with Children Act section 226 (2).

[7]  Under cover letter dated 28 July 2016 and Notice to Produce dated 1 July 2016, The

Department of Communities, Child Safety and Disability Services provided a bundle of

documents relating to Child Safety Notifications of Concern in which SJJ

was named as the alleged person responsible. The Notifications concerned 3 different

Queensland families. Following receipt of a copy of this bundle of documents SJJ

contacted the Department to challenge the accuracy of this ‘first bundle’. Under cover letter

dated 12 August 2016 the Department provided the Tribunal with a new bundle of  documents

and advised that following investigation it found some evidence to suggest that some of the

information produced in the earlier documents (first bundle) was incorrectly recorded against

the profile of the applicant SJJ. The Department recommended, amongst other

things, that they not be relied upon.  

The ‘second bundle’ contained information relating only to SJJ. However

there remained some slippage in the language, recorded in the commentary from the

‘first bundle’.  This information was identified by SJJ and duly noted by the

Tribunal to omit in its deliberations.

SJJ also submitted that the ‘second bundle’ commentary should be given less weight

as the previous inaccuracies could have given rise to bias against him by the Department in its

recorded views about  him. The Tribunal accepted this could give rise to an apprehension of

bias in the recorded commentary, but notes that SJJ did not dispute the general  facts

recorded in the Notifications. It is these facts on which the Tribunal relies and notes any

general opinion and view expressed in the commentary is considered with caution in light of

the context of the inaccuracies, and were accordingly given significantly reduced weight.

[8] Queensland Police Check and Court Briefs.

Close

Editorial Notes

  • Published Case Name:

    SJJ v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    SJJ v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 320

  • Court:

    QCAT

  • Judge(s):

    Member Clifford

  • Date:

    29 Aug 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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