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RS v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RS v Director-General, Department of Justice and Attorney-General [2020] QCAT 105

PARTIES:

RS

 

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML245-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

15 April 2020

HEARING DATE:

14 February 2020

HEARD AT:

Rockhampton

DECISION OF:

Member Milburn

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the names of the Applicant, the Applicant’s ex-wife and the Applicant’s children.
  3. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – review of a decision to issue a negative notice and cancel a blue card – where Applicant was charged with indecent treatment of his daughter, aged under 12 years – where the charge of indecent treatment was withdrawn – where the allegation was made vexatiously and maliciously – where there is some evidence of long-term domestic violence – where Applicant has a criminal history without convictions for any serious or disqualifying offences – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

Child Protection Act 1999 (Qld), s 9

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 168, s 221, s 226

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

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

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

Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1

Re TAA [2006] QCST 11

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

 

Applicant:

R King, Solicitor of RK Law

Respondent:

D Taylor, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    RS (‘the Applicant’) was alleged to have sexually assaulted his daughter (‘the alleged offence’) while a family photograph was being taken on 26 August 2017.[1] The Applicant denied the allegations, which were made during his marital breakdown, as vexatious and malicious. The Applicant's ex-wife (‘WS’) concurred that the allegations were vexatious and malicious.[2] Police charged the Applicant, and the matter proceeded to the District Court, but the charges were discontinued[3] when the Applicant's ex-wife advised the Office of the Director of Public Prosecutions that the complainant child was ‘under significant duress’.[4] The alleged offence of 'indecent treatment of children (under 16, child under 12 years) [as] lineal descendant/guardian/carer’ is a disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).[5] People convicted of disqualifying offences cannot apply for a blue card, but the Applicant was charged, not convicted.
  2. [2]
    At the Tribunal hearing, the Office of the Director-General, Department of Justice and Attorney-General (‘the Respondent’) indicated that it did not propose to ventilate those allegations, thereby conceding that the Tribunal should not consider the alleged sexual assault as part of its deliberations.
  3. [3]
    On 10 June 2019, the Respondent, through Blue Card Services (‘BCS’), issued a negative notice to the Applicant. BCS determined that this is an 'exceptional case' in which it would not be in the best interests of children for the Applicant to be issued with a positive notice and blue card. BCS provided the Applicant with the reasons for the decision (‘the Reasons Document’). The Tribunal must produce the correct and preferable decision.[6]
  4. [4]
    The Applicant has only one conviction. That is for behaving in a disorderly manner in 1995, where cash bail in the sum of $60 was forfeited. That was of no concern to BCS, nor the Tribunal.

Domestic Violence

  1. [5]
    In the Reasons Document, BCS expressed concerns about domestic violence:

Of most concern in my assessment is the material before me which indicates the applicant has a history of engaging in significant and prolonged domestic violence. It is particularly concerning that the material indicates the applicant has exposed his two young children to domestic violence on repeated occasions and that his children have suffered emotional distress as a result. This information therefore indicates the applicant has previously failed to provide a safe and protective environment for his own children and as a result has placed his children at risk of physical and emotional harm. Behaviour of this nature is entirely inconsistent with the behaviour expected of a blue card holder.[7]

The material before me indicates the applicant has a significant history of engaging in domestic violence. The statements provided to police and the prosecuting authority by the applicant's ex-wife contain information about domestic violence perpetrated against her by the applicant. Although specific details are not provided, the following information contained in the material before me strongly suggests the applicant has recently engaged in significant and repeated domestic violence:

  • In her witness statement, [WS] (the applicant's ex-wife) referred to experiencing domestic violence in her relationship with the applicant "for a while";
  • In August 2017, [WS] indicated the domestic violence had been escalating;
  • [WS] had enlisted the help of a friend who had personally experienced domestic violence to assist her to leave her situation;
  • [WS] had pre-arranged with her friend a plan to text message "SOS send cops" to her friend so police could be alerted and attend any future incidents of domestic violence;
  • [WS] followed that plan and sent a text message to her friend stating "SOS send cops" during a domestic violence incident with the applicant in August 2017. The incident involved flipping of a coffee table;
  • Prior to 31 August 2017 a domestic violence protection order was in place which listed the applicant and complainant's children on the order (emphasis added);
  • On 31 August 2017 following a court hearing, the children were removed from the order and [WS] indicated she was "horrified" as she could no longer prevent the applicant from having access to the children;
  • The complainant child provided a s 93A statement during which she stated the applicant liked to tell her family members what to do and he shouted all the time at her mother; and
  • In a letter to the Office of the Director of Public Prosecutions requesting withdrawal of the charges against the applicant, [WS] stated that following her separation from the applicant, her two children were "recovering from the shock and duress of domestic violence".

As a whole, the information before me indicates the applicant engaged in ongoing and repeated domestic violence against his ex-wife. The information before me indicates the applicant's ex-wife likely suffered considerable fear and emotional distress as a result of domestic violence perpetrated by the applicant and it is particularly concerning the information indicates the domestic violence was significant enough to prompt the applicant's ex-wife to formulate a plan to contact police during future altercations and to enlist the assistance of a friend to leave the relationship. In addition, the information indicates the applicant was the subject of a domestic violence protection order in 2017 and given the information indicates it was amended as recently as August 2017 (emphasis added), the applicant may still be subject to the terms of such an order. The applicant's history of domestic violence raises serious concerns about his ability and willingness to resolve conflict in a calm and controlled manner. Such skills are particularly important when working with children, as children are entirely reliant on the adults around them to provide a safe and protective environment and act as appropriate role models.

It is particularly concerning the material before me indicates the applicant previously exposed his two young children to domestic violence. In particular, the information indicates the applicant was the subject of a domestic violence order, which previously named his two children. It is noted that before naming a child in a domestic violence order the court must be satisfied that the naming of the child is necessary or desirable to protect the child from associated domestic violence or being exposed to domestic violence by the applicant. I further note the applicant's young daughter commented during police interview that the applicant frequently shouted at her mother. When considered as a whole, the information before me strongly suggests the applicant previously exposed his young children to domestic violence whilst in his care, thereby placing them at risk of physical and emotional harm.

It is a further factor of significant concern that the information before me also indicates that as a result of being exposed to domestic violence, the applicant's children had already suffered evident emotional harm. In the letter written by [WS] requesting withdrawal of the charges against the applicant, she stated that at the time police were investigating the allegations, their two young children were "recovering from the shock and duress of domestic violence". This information indicates that the applicant's children were not only frequently exposed to domestic violence whilst in the applicant's care, but that exposure to such behaviour had a significant impact on the children. The applicant's history of engaging in domestic violence, particularly in the presence and to the detriment of his young children constitutes a failure of his position of trust and authority towards his children. The applicant's demonstrated failure to provide a safe and protective environment strongly suggests that he is not an appropriate person to engage with children and young people in activities regulated by the Act.[8]

  1. [6]
    No evidence was produced to show that, as stated by BCS, ‘Prior to 31 August 2017 a domestic violence protection order was in place which listed the Applicant and complainant's children on the order’. In fact, the first order identified as a result of disclosure from the Magistrates Court[9] was the making of a temporary protection order on 31 August 2017. In response to that order, which was later made permanent until effectively revoked by the Magistrates Court,[10] the Applicant said that the initial allegation of domestic violence was that he flipped a coffee table, which was accompanied by yelling. That allegation was made at the time of the marital breakup after a 14 year relationship and, at the time of the temporary application, the Applicant was facing serious criminal charges in relation to another matter (which were later discontinued).[11]
  2. [7]
    The accurate information about the history of domestic violence protection orders was provided by the Magistrates Court on 15 November 2019, as a result of a production notice from the Tribunal. When BCS prepared the Reasons Document it was relying on incorrect information, at least in relation to the date of the first domestic violence order, from an unnamed source.
  3. [8]
    The Reasons Document is incorrect where the decision-maker stated that ‘the information indicates it [referring to the domestic violence order] was amended as recently as August 2017’. As the disclosed Magistrates Court material confirms, the first order, being a temporary order, was made on 31 August 2017.

Department of Child Safety, Youth and Women

  1. [9]
    The Department of Child Safety, Youth and Women (‘the Department') produced material to the Tribunal pursuant to a Notice to Produce issued on 22 October 2019 (‘the Child Safety Material’). The Child Safety Material was made available for copying by the parties. The Child Safety Material indicates that the Department received a number of notifications related to the Applicant. These were identified in the Respondent’s Outline of Submissions,[12] as follows:
  1. a)
     On 26 September 2017, concerns that there was a "domestic violence history" and that the notifier was "aware that the children had previously witnessed domestic violence ... in the family home".[13] The notifier was "frightened that [the Applicant] might hurt the children".[14] The assessment noted concerns about "a history of domestic violence perpetrated by (the Applicant) which indicates aspects of power and control on [the Applicant's] behalf which may be impacting [WS]'s decisions at this time".[15] The assessment noted that [WS] "may be experiencing disempowerment as a result of her domestically violent relationship, which in turn is impacting on her decision making regards to what is in the best interests of the children" and the notification was recorded as a Child Concern Report.[16]
  1. b)
     On 21 November 2017, the Department was notified about an alleged assault involving [WS] and "suspected associates" of the Applicant.[17] The notification includes a record that it was ‘believed the alleged assault was related to domestic violence with her ex-partner [RS]'. The notification also noted concerns about the Applicant:
  1. having "engagement with alcohol and substance misuse";
  2. "perpetrating significant domestic violence ... and the children being consistently exposed to this"; and
  3. his "parenting of the children including physical violence [sic] abuse towards the children".

The notification was recorded as a Child Concern Report.

  1. c)
     On 3 January 2018, the Department was notified that the Applicant had "committed acts of DFV ... and the children witnessed this" and that the Applicant "suffers mental health issues".[18]
  1. d)
     On 5 September 2018, the Department received a notification expressing concern that [WS] was "a victim of DFV and she has been manipulated and bullied" by the Applicant.[19] The Applicant was referred to as "extremely controlling, narcissistic and that he has committed acts of domestic violence which the children have witnessed'.[20]
  1. e)
     On 6 September 2018, the Department undertook a safety assessment which observed "no signs of immediate harm" to the children and concluded that they were safe with the agreed Immediate Safety Plan and the Applicant continuing to reside at his parents' residence".[21]
  1. f)
     On 11 September 2018, the Applicant was interviewed by a Child Safety Officer. The interview notes refer to a discussion of the marital separation and include:[22]
  1. references to the Applicant obtaining support from a counsellor and psychologist;
  2. references to the Applicant supporting counselling for his daughter and his family; and
  3. the following note: "March / July 2016 [WS] feared for life, Raised voices, nil physical violence, Arguments".[23]
  1. g)
     On 25 September 2018, a family risk evaluation was completed assessing the risk as low.
  1. h)
     On 27 September 2018, the Department undertook a safety assessment which observed the children "presented happily and heathy, nil visible signs of physical injury, ill health or emotional distress".[24] The Applicant was continuing to reside at his parents' residence.[25] The children were assessed to be safe.
  1. i)
     On 27 September 2018, an investigation and assessment was completed.[26] The Assessment included:
  1. a summary of an interview with [WS] in which she reported that the domestic violence was "mainly arguing between herself and [the Applicant], this resulted due to poor communication"; and in which [WS] advised that the Applicant was not moving back in with her;[27]
  2. an observation that "[d]omestic violence in July 2018 of emotional and controlling behaviours by the Applicant";[28]
  3. a worrying/complicating factor of "a parent's behaviour is violent or lacks control";[29]
  4. a reference to a history of DV between the Applicant and [WS] followed by a recognition that they have both "disclosed verbal arguments and nil physical violence and have sought professional help".[30] This is followed by an assessment that the children "were not present during the incidences [sic] and appear not to have experienced detrimental emotional harm as a result of the domestic violence";[31]
  5. an acknowledgement that both parents are supportive of counselling and that both also have their own support networks in place;[32] and
  6. an assessment outcome for both children of "unsubstantiated — child not in need of protection" based on the children living with [WS] and her being assessed as a parent willing and able to provide for their daily care and protection needs.[33]
  1. j)
     On 10 December 2018, by which stage the Applicant’s young daughter was living with the Applicant [emphasis added], [there was] a notification that [she] had awoken before 5:15am and was alone in the house. She went outside and flagged down someone on the road and told them that the Applicant "hadn't come home last night and she was completely alone". Police were called. The Applicant returned to the house around 5:15am when the police arrived. He reported that he had been at home in the evening and had left the house at 4:45am to obtain a coffee and some milk. He had a cup of coffee with him when he returned and reported that he expected he would have been back before his daughter woke up. The report notes that any impacts on his daughter were not considered significant and detrimental and the child was not assessed as being in need of protection.
  1. [10]
    The Tribunal notes that the first involvement of the Department was in September 2017.
  2. [11]
    The Department records include the following notations regarding its investigations into alleged child abuse and neglect:[34]

[WS] was interviewed alone at KCH Lawyers. [WS] appeared calm and was quite engaged in the conversation. [WS] disclosed she separated from the Applicant in August 2017, a week before the allegations. [They have been] working on coparenting through FLC. [WS] reported that the separation was a result of irreconcilable differences, communication breakdown and not as a result of allegations. The Applicant has been a great dad. When questioned on domestic violence, [WS] reported that it was mainly arguing between herself and the Applicant, this resulted due to poor communication.

  1. [12]
    The Department concluded the following information in relation to Family Risk Evaluation:[35]

The family risk evaluation has [a] recorded outcome of LOW, indicating low risk of harm occurring in relation to the children in the future; and

The risk factors have been mitigated by the protective factors outlined in the Analysis of Risk and Protective Factors section of the IA.[36]

  1. [13]
    The Child Safety Material indicates that the result of investigation and assessment as at 26 September 2018 was that the children were not at unacceptable risk of future harm, as defined by the Child Protection Act 1999 (Qld), if they were left in the care and protection of their mother and the Applicant.[37] The conclusion of the Department at that time was based on the following recommendation:

It is my assessment [that] further departmental intervention is not required for this family. Family has a professional support network and extended family willing to offer support.[38]

  1. [14]
    On 25 October 2018, a representative of the Department wrote to the Applicant and advised that an assessment had been completed, the outcome was ‘unsubstantiated’ and the child was not in need of protection. This means that the Applicant’s daughter had not experienced harm that was considered significant and detrimental in nature as defined by the Child Protection Act 1999 (Qld), section 9. There is insufficient evidence to indicate that the Applicant’s daughter was sexually abused, and the Applicant’s daughter made no disclosures of sexual abuse to police and the Department.[39]
  2. [15]
    Further, on 3 December 2018, an officer of the Office of the Director of Public Prosecutions wrote to BCS and included the following information:

On 5 September 2018 in the Rockhampton District Court the Crown entered a No True Bill in relation to one count of indecent treatment of children (under 16, under 12), who was to lineal descendant, on 26 August 2017 at Rockhampton in the State of Queensland. This occurred after the Crown carefully considered the relevant and admissible evidence as well as the unsworn statement of the complainant’s mother (and determined that the complainant did not disclose any offending against her in her 93A Statement). The defendant did not make any admissions during pre-text calls between himself and [name withheld]. Matters raised in the mother’s sworn statement were relevant to the complainant’s credibility and reliability. The Crown therefore determined that there was no reasonable prospect of success and discontinued matters accordingly.[40]

  1. [16]
    Records obtained from the Rockhampton Magistrates Court indicate that in 2017, at about the time the false allegations were made against the Applicant, the court did make a domestic violence protection order naming the Applicant as Respondent. However, the court revoked the protection order from 14 January 2019.[41]

The best interest of children

  1. [17]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland and BCS does that through a scheme requiring the screening of persons employed in particular employment or carrying on particular businesses.[42] That object has been extended to ‘… screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[43]
  2. [18]
    In determining this matter, the concern for the Tribunal is solely related to the welfare and best interests of children.
  3. [19]
    The issue for the Tribunal is to determine whether there is a real and appreciable risk to the safety of children as a result of its decision. The Tribunal has a wide discretion to determine whether this is an exceptional case.[44] Each case is to be considered on its own facts. The Tribunal must balance relevant risk and protective factors in each case and, where there are multiple factors in a case, the Tribunal must apply weight to the relevant factors.[45] That requires the Tribunal to undertake a careful analysis of the circumstances in the case, which involves the application of a discretion. The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued. Each case must be dealt with on its own facts.

The life story of the Applicant

  1. [20]
    The Applicant provided a version of his life story (‘the Applicant’s Life Story’), dated 5 August 2019, to the Tribunal. In it, the Applicant included the following content:
    1. (a)
      he had no reported issues with his childhood or significant trauma or loss, other than his grandparents passing away;
    2. (b)
      while of Anglo-European appearance, he identifies as Aboriginal;
    3. (c)
      his parents were not drug users or heavy drinkers;
    4. (d)
      he has a good relationship with his two brothers;
    5. (e)
      he had a good education and completed an Applied Physics degree at CQUniversity;
    6. (f)
      he went on to complete a Postgraduate Diploma of Secondary School Education;
    7. (g)
      in 2009, he became the Head of Department at a high school;
    8. (h)
      by 2013/14, he medically retired due to severe depression and anxiety;
    9. (i)
      he currently receives a pension;
    10. (j)
      he has a healthy relationship with alcohol, and it has not played a big part of his life;
    11. (k)
      he does not use illegal drugs;
    12. (l)
      he commenced a relationship with WS in about 2003;
    13. (m)
      he married WS in 2009;
    14. (n)
      they have two children, a daughter and a son;
    15. (o)
      in August 2017, the parties separated;
    16. (p)
      since separation the parties have agreed to a formal parenting arrangement where the children spend most of the time with the father, as he was not formally working;
    17. (q)
      since separation the parties have agreed on formal property settlement;
    18. (r)
      there was no domestic violence in the relationship except for the ‘separation conversation’ on 29 August 2017, where the Applicant admits he ‘flipped the coffee table’ and with the benefit of hindsight he should have simply left the property;
    19. (s)
      the Applicant has struggled with his weight and at the time of separation he was approximately 152 kilograms;
    20. (t)
      he is now approximately 100 kilograms and has been regularly working out and eating healthily since separation;
    21. (u)
      he walks about 10 kilometres per day;
    22. (v)
      he has suffered severe depression and anxiety which led to his medical retirement in 2013/14;
    23. (w)
      he has been treated by a psychologist and a psychiatrist, and was medicated until the end of 2016;
    24. (x)
      he is no longer on medication and is being treated by his psychologist Dr Alan Keen with cognitive behaviour therapy, which is four- to six-weekly, in addition to exercise and self-reflection;
    25. (y)
      he regularly attends his general practitioner;
    26. (z)
      there was an incident of domestic violence on 29 August 2017, but the children were not directly exposed to the incident;
    27. (aa)
      the matter went before the courts and the presiding Magistrate did not name the children on the order;
    28. (ab)
      in January 2019, the court revoked the domestic violence order as it was no longer seen as necessary or desirable;
    29. (ac)
      he has had a number of meetings since separation with his ex-wife and concedes that with the benefit of hindsight he could have done a lot of things differently;
    30. (ad)
      he deeply regrets his actions in flipping the coffee table;
    31. (ae)
      he and his ex-wife did undertake relationship counselling in late October-December 2018 and the parties discussed the issue of domestic violence in couples’ counselling;
    32. (af)
      there has been no repetition, breaches and there has been no further violence;
    33. (ag)
      he completed a Post-Separation Parenting Course after his marriage breakdown which was helpful;
    34. (ah)
      he is also enrolled in a ‘changing behaviour’ course through Relationships Australia, but it is not yet available to him;
    35. (ai)
      he spoke regularly with his counsellors about domestic violence and the allegations that were previously litigated; and
    36. (aj)
      he understands there is no place in our society for domestic violence or child abuse and his insight into domestic violence is reflected in the way he has completed counselling and the court has fully revoked any orders.

The evidence of the Applicant at the Tribunal hearing

  1. [21]
    The Applicant was cross-examined at the Tribunal hearing, and during his evidence the Applicant said:
    1. (a)
      He is now a retired co-parent.
    2. (b)
      He consulted a psychiatrist for approximately one year in 2014/2015, was prescribed antidepressants and during that time his depression was severe.
    3. (c)
      He no longer needs medication but continues to see his psychologist Dr Keen every four to six weeks.
    4. (d)
      He suffered significant relationship issues leading up to separation.
    5. (e)
      He has discussed issues around domestic violence with Dr Keen and has undertaken relationship counselling which has been of great benefit.
    6. (f)
      He undertook a Post-Separation Parenting Course, while on bail, and during the court process he better understood the effects of domestic violence on children and he understands the triggers for domestic violence.
    7. (g)
      He regrets flipping the table, which resulted in a domestic violence order being made against him.
    8. (h)
      He does recall the events of 19 April 2017, when he attempted to collect one of his children from school. He did keep the child from his ex-wife for four hours because he did not understand what was happening that day. He felt that his wife wanted to take the children and leave, so he took his child to her grandmother’s place. Later that evening he talked with his ex-wife. He did not have any intention to deny his ex-wife contact with her child, and he understands that if someone did that it would be an act of domestic violence.
    9. (i)
      His ex-wife did seek a variation to a domestic violence order in December 2017, citing, amongst other things, the fact that he was charged with indecent treatment. His ex-wife also alleged that the children had witnessed incidents on 29 August 2017 when she says he was verbally abusive towards her in front of the children. He accepts that he did flip the table and he did yell but he does not accept that he was verbally abusive. He gave evidence that he has never been verbally abusive.
    10. (j)
      He accepts his inappropriate behaviour in flipping the table, and yelling. He is remorseful and he does wish that things went differently. She did call the police and in hindsight, that was reasonable.
    11. (k)
      He cannot understand why his ex-wife made the allegations against him. Maybe it was through fear of losing the children, but he could not speculate as to her motives.
    12. (l)
      As a result of the allegations, he did not see his son for three months and he did not see his daughter for 12 months.
    13. (m)
      He has said previously, and stands by his statement, that the only incident of domestic violence occurred during the course of the separation discussions, when he yelled, and he flipped the table.
    14. (n)
      In relation to child concerns reported to the Department,[46] when his ex-wife notified concerns in relation to their daughter having been sexually abused, she said that the Applicant exhibited aspects of power and control. He denied both allegations.
    15. (o)
      He denied what was described in the Reasons Document as ‘significant domestic violence against the ex-wife of the children including physical violence abuse towards the children’.
    16. (p)
      He denied engagement with alcohol and substance misuse.[47]

The evidence of Dr Alan Keen, Consultant Clinical Psychologist

  1. [22]
    Dr Keen prepared a report (‘Dr Keen’s Report’) dated 23 January 2020. The report was prepared in response to a letter of request from the Applicant’s solicitor. In his report, Dr Keen stated:

Dear Mr King,

Thank you for requesting a report re the above-mentioned client.

[RS] has been my patient for more, than 8 years. He initially came to see me on 9/8/2011. Since then he has seen me on weekly to monthly basis.

In 2019 he saw me for about 10 sessions.

During the past 2.5 years, he has been experiencing extreme symptoms of depression and anxiety associated with separation from his ex-partner, child custody matters, and legal matters mentioned in your letter dated 15/10/2019. He also lost his father in December 2019 and still has been grieving for that loss.

Please find my responses to your questions in the following paragraphs.

YOUR QUESTION A: The extent to which [RS] has insight into his Domestic Violence and Indecent Treatment charges and its impact on society, the victim and any children associated with [RS]:

My response: [RS] was in full-time employment as a teacher and head of department for about 15 years. He retired from his position in 2013 and since then he has been on Defined Benefit Pension (disability pension) due to depression and anxiety. Mr [RS] was charged for domestic violence and Indecent Treatment of children in 2017. He consented to the domestic violence order to be made. He denied charges of Indecent Treatment charges and those charges were dropped by the Department of Public Prosecutions. I have interviewed this client in relation to having insight into the above-mentioned charges. I have also conducted a comprehensive personality test, the Minnesota Multiphasic Personality. The MMPI was suggestive of elevated levels of depression and anxiety. The MMPI did not show significantly elevated levels of anger, aggression, over controlled hostility and dominance. His score in the social responsibility component of this test was normal. On the basis of my dealings with this client in the past 8 years, it appears to me that he has sufficient insight into his charge of domestic violence.

YOUR QUESTION B: What risk factors, or triggers, if any, are present which could contribute to a risk of further domestic violence and further allegations of indecent treatment.

My response: On the basis of the MMPI results and my experience with this client, he is not a violent person and his charges of domestic violence could be related to transient relationship issues rather than fundamental character flaws or personality issues.

The concept of risk and risk assessment is used in two related ways. Firstly, it refers to the overall likelihood that a person will engage in criminal behaviour (risk of offending or risk of re-offending). Secondly, the concept of risk may be used to describe specific conditions and circumstances that are associated with offending (risk factors). Factors which are considered to be important in the assessment of risk of re-offending are: nature of the crime, criminal history, age of first court order, nature and outcome of the first and subsequent court orders, number of court orders, family and living circumstances, education, employment, peers and social support groups, substance abuse, leisure/recreational activities, personality, psychological disorders, attitudes and orientations.

The criteria of HARE Psychopathy Checklist (HPC) were used to estimate the risk of this client's risk. I would like to state the following positive factors in relation to risk of indecent dealings.

  • He has no previous sex related offences.
  • His legal history prior to the above-mentioned charges is limited to behaviour in a disorderly manner when he was 21 years old.
  • His charge of indecent treatment of children was dropped by the Department of Public Prosecution.
  • He was involved in stable employment for about 15 years.
  • His depression and anxiety symptoms have been stablised.
  • He was married for about 14 years.
  • He does not show any signs of defect in his cognitive capacity and executive functions.
  • No history of drug or alcohol abuse or dependence was reported.
  • He shows remorse in relation to domestic violence issues.
  • He has sufficient understanding of child protection issues and children's rights.
  • He has provided protective care for his children.
  • Currently he has 56% children's custody.
  • Currently has amicable relationship with his ex-partner (accuser).

It is important to note that there is no no-risk evaluation in relation to convicted sex offenders. Any contact with minors in relation to a convicted sex offender is a risk factor, which should be avoided. Psychological treatment for sex offenders may decrease the risk of re-offending. However, in case of this client, there is no conviction. Therefore, on the base of available evidence and my clinical dealings with this client I am unable to see any significant risk factor.

His motivation for amicable relationship with his ex-partner is significantly influenced by his desire to co-parent to the best possible outcome for his children.

YOUR QUESTION C: What protective factors, if any are present to reduce the risk of further domestic violence and further allegations of indecent treatment.

My response: Please note my response to your previous questions.

The client would benefit from five sessions of counselling in relation to anger management and five sessions relationship counselling. I also provide a protocol that includes ten sessions of psychotherapy for child sex offenders. I am able to deliver these latter sessions of psychotherapy, should the client have to attend psychotherapy sessions for sex offenders.

YOUR QUESTION D: What preventative strategies, if any, does [RS] use to reduce the risk of domestic violence.

My response: Please see my response to your Question C.

I do acknowledge that my findings and suggestions must depend largely upon the criteria for "criminal code" and risk that may be thought appropriate by the court.

  1. [23]
    Dr Keen gave evidence at the Tribunal hearing:
    1. (a)
      The Applicant first consulted Dr Keen on 9 August 2011.
    2. (b)
      The Applicant initially consulted Dr Keen in relation to work-related matters.
    3. (c)
      Dr Keen is a cognitive behavioural therapist and does use cognitive behavioural therapy as part of the treatment for the Applicant.
    4. (d)
      Dr Keen’s association with the Applicant is longer than the typical cognitive behavioural therapist relationship with a patient.
    5. (e)
      The sessions initially were to assess the Applicant to deal with his chronic depression and anxiety.
    6. (f)
      The sessions were to stop an exacerbation of the extreme symptoms of the problems suffered by the Applicant, especially over the past two and half years, following the allegations made against the Applicant.
    7. (g)
      While the sessions commenced with issues around employment, more recently they have related to issues around separation and the (withdrawn) allegations.
    8. (h)
      When the Applicant first started to have relationship difficulties, he was experiencing minor issues, but they became significant when he separated from his wife and his level of anxiety increased quickly. That is, when his wife left, and he was charged.
    9. (i)
      Dr Keen did read the Reasons Document.
    10. (j)
      Dr Keen conducted a Minnesota Multiphasic Personality Inventory (MMPI) assessment of the Applicant in November 2019, for the purpose of preparing his report.
    11. (k)
      The MMPI is used as a personality test.
    12. (l)
      The MMPI suggested elevated levels of depression and anxiety. The levels (t- scores) showed anxiety at a level of 65 (which is elevated, against an average of 50), anger at a level of 56 (which is within the normal range), depression at a level of 69 (which is elevated), social sensibility (which is within the normal range), dominance (which is within the normal range) and hostility at a level of 48 (which is within the normal range). Scores of around 50 are good.
    13. (m)
      Dr Keen said that he used validity scales, and therefore it is very hard to lie in response to questions when administering the MMPI personality test. Dr Keen expressed the view that the Applicant provided honest answers.
    14. (n)
      The MMPI did show that the Applicant’s score in the social responsibility component of this test was normal.
    15. (o)
      Dr Keen said that the Applicant has shown insight into his domestic violence. He conceded that the Applicant may have gaps in insight, but this is average within society.
    16. (p)
      The Applicant has expressed concern for his wife and society and is now on reasonably good terms with his ex-wife.
    17. (q)
      Dr Keen said he cannot say whether the Applicant did perpetrate domestic violence on his wife and said, ‘we can all be cruel, but the Applicant is average’.
    18. (r)
      Dr Keen did say that the Applicant is not a violent person and is confident that the Applicant has not been violent.
    19. (s)
      Dr Keen said that everyone has the capacity to go ‘beyond boiling point’, but the Applicant is average in that regard and his risk factors are average for society.
    20. (t)
      In response to possible triggers, Dr Keen identified that the Applicant has one child with a disability and the other has (unspecified) issues.
    21. (u)
      The Applicant’s depression has stabilised for two years and it is not getting worse.
    22. (v)
      Dr Keen said that there is always a risk of relapse, but the Applicant is fine and has no issues with substances and he can identify any significant risk factors for the Applicant.
    23. (w)
      Further counselling sessions are not required, but they are beneficial.
    24. (x)
      Dr Keen identified protective strategies for the Applicant in that he has undergone counselling, he has worked his way through transient issues, and he has developed strategies to deal with issues that may arise in the future.
    25. (y)
      Leading up to the making of parenting orders, parties usually experience an increase in hostility but, for the Applicant and his ex-partner, they have now been resolved. During that time, the Applicant was exhibiting a reasonable emotional response. The Applicant was suffering more than others because of his anxiety, but he was functioning well, and he continues to function well.
    26. (z)
      Dr Keen indicated that he was providing his time in giving evidence free of charge because his evidence may be useful.
    27. (aa)
      Dr Keen could not identify any risks associated with the possibility of the Applicant working with children.

The Applicant’s submissions

  1. [24]
    The Applicant provided oral submissions at the conclusion of the Tribunal hearing. The submissions included the following content:
    1. (a)
      The Applicant called two witnesses.
    2. (b)
      The evidence of the Applicant was frank and honest, where he made reasonable concessions, including a concession that he wished he had gone about things differently.
    3. (c)
      The applicant did not attempt to downplay his actions that amounted to domestic violence.
    4. (d)
      Dr Keen provided helpful evidence. Dr Keen has treated the Applicant for many years on a regular basis and the sessions are ongoing. This is not a case where a psychologist was introduced conveniently, just for the purpose of an application.
    5. (e)
      Dr Keen said that the Applicant has endured many stressful events, including the separation, the domestic violence application, the unfounded allegations and family law proceedings. The Applicant has been subjected to significant pressure, at a time when he already had severe depression. These pressures have now passed and there have been significant changes in the Applicant’s life. He is no longer subject to a domestic violence order, he has a good relationship with his ex-wife, his family law issues have been finalised and the allegations regarding his daughter have been discontinued.
    6. (f)
      Dr Keen confirmed that the Applicant has shown insight.
    7. (g)
      The child protection material is of little assistance. Unsurprisingly, it relates largely to the alleged sexual assault matter, which did not exist. It is incorrect in some of the detail.
    8. (h)
      The Tribunal could gather from the material that the Applicant’s ex-wife was under considerable stress, and she was trying to keep the children.
    9. (i)
      The Tribunal cannot rely upon the statements of the Applicant’s ex-wife, because she has said different things to different people.
    10. (j)
      The arguments between the Applicant and his ex-wife were as a result of poor communication. Poor communication was a driving force in the breakdown of the relationship and the Applicant has addressed this issue. The arguments between the Applicant and his ex-wife have now resolved. The pressure situation that the couple found themselves in 2017 has now been resolved.
    11. (k)
      The Department’s risk analysis notes that there is no risk of harm.
    12. (l)
      The allegations were made at a time when the family was under pressure, but now there is a low risk and Dr Keen supports those conclusions.
    13. (m)
      The Family Court made orders in relation to the children, and in doing so the court must be satisfied about the safety of the children.

The Respondent’s submissions

  1. [25]
    The Respondent provided both written and oral submissions.

Respondent’s written submissions

  1. [26]
    The Respondent provided written submissions to the Tribunal dated 11 February 2020. The submissions were prepared prior to the hearing. The relevant sections of the submissions are as follows (adopting the numbering from the original document):

Protective factors

  1. The Respondent submits that the following protective factors are relevant in this matter:
  1. a)
     the Applicant has an Applied Physics Degree and Postgraduate Diploma of Secondary School Education. He worked successfully as a secondary school teacher from 1999 until 2012[48] when he was medically retired. He reports that he did not have any issues arising from working with children while teaching;[49]
  1. b)
     the Applicant's material indicates that he has insight into the nature of child sexual assault offending and the impact that the allegations have had on himself and on his child. In particular, he has arranged counselling for his daughter and appears, in the material filed, to be continually focused on reducing the impacts of this episode on his daughter;
  1. c)
     the Applicant has also taken steps to enroll in a parenting course and a "changing behaviour" course.[50] He has also undertaken counselling. The Applicant has filed a report from his psychologist, Dr Keen who advises the Applicant has been his patient for more than eight (8) years and, over that time, has seen him on a weekly to monthly basis.[51] Dr Keen indicates that he does not believe the Applicant is a violent person and that the domestic violence was related to transient relationship issues.[52] He also indicates that he considers the Applicant has "sufficient insight' into his domestic violence;[53] and
  1. d)
     the Applicant also provided Blue Card services with one (1) reference report in support of his application for a blue card. The referee indicates some knowledge of the Applicant’s police information and strongly supports his application for a blue card.
  1. The Applicant's insight, and other protective factors, will be explored further at the hearing.

Risk Factors

  1. The Respondent further submits that the following risk factors are present:

The material indicates a significant history of domestic violence against his ex-wife

  1. The Applicant's behavior is concerning as there appears to be a pattern of repeated domestic violence against [WS]. The material filed in this proceeding includes statements from [WS] that refer to:
  1. a)
     the Applicant collecting her daughter early from school on 19 April 2017 "with the intention not to return her to me" and the Applicant not allowing [WS] to see her daughter;[54]
  1. b)
     an incident of verbal abuse towards [WS] in front of the children on 29 July 2017;[55]
  1. c)
     [WS] experiencing domestic violence in her relationship with the Applicant "for a while" in the lead up to August 2017;[56] and
  1. d)
     the incident of 29 August 2017 when the Applicant "was verbally abusive and damaged property by throwing things";[57]
  1. There is a reference in an interview with the Applicant indicating that in 2016 [WS] may have "feared for [her] life";[58]
  2. The Child Safety Material also includes a number of notifications to the Department alleging domestic violence history perpetrated by the Applicant.[59] There is also a notification of an alleged assault involving [WS] and "suspected associates" of the Applicant on 21 November 2017;[60]
  3. As outlined above, it is clear that after 29 August 2017, [WS] was in a disturbed state of mind that was occasioned by the Applicant's domestic violence upon her. As [WS] notes, following the incident she was "under severe duress from this event, and other domestic altercations outlined in the attached police report, I was not of sound mind";[61] and
  4. The evidence also indicates that [WS] took steps to try to ensure her safety. This included pre-arranging with a friend a plan to text message "SOS send cops" to her friend so police could be alerted and attend any future incidents of domestic violence.' The Applicant contends that was indicative of the "collusion" between [WS] and her friend.' There is nothing to suggest, however, that this plan was for purposes other than ensuring [WS]'s safety. Indeed, when the plan was activated on 29 August 2017, it appears to have been an entirely reasonable step in the circumstances and one that ensured police were appropriately alerted to the incident.
  5. The history of domestic violence will be further explored at the hearing.

Evidence the Applicant's children were exposed to domestic violence.

  1. It is a particular concern that the information filed in the proceedings indicates that the domestic violence occurred in the presence of Applicant's children. This material includes:
  1. a)
     a statement from [WS] in her application to vary the protection order of 19 October 2017 that refers to the fact that her children were exposed to domestic violence incidents and expressing concern that they will be exposed to further similar incidents;[62]
  1. b)
     a letter from [WS] to the Office of the Director of Public Prosecutions on 6 March 2018 stating that her two children were "recovering from the shock and duress of domestic violence";[63]
  1. c)
     Child Safety Material that includes a number of notifications to the Department alleging that domestic violence perpetrated by the Applicant was witnessed by his children;[64]
  1. d)
     a section 93A statement from the Applicant's daughter in which she states that the Applicant liked to tell her family members what to do and he shouted all the time at her mother; and
  1. e)
     a Temporary Protection Order granted by the Court on 1 December 2017 naming the Applicant as the respondent and including a requirement that he "must be of good behaviour towards the children, must not commit associated domestic violence against the children and must not expose the children to domestic violence".[65]
  1. There is an assessment by the Department that the children were not present during the incidents and "appear not to have experienced detrimental emotional harm as a result of the domestic violence". It is noted that this assessment is out of step with material referred to above. The Applicant also points to the Department's assessment outcome that the harm was unsubstantiated and that the children were not in need of protection.[66] The Respondent notes that this assessment was based on the children living with [WS] only and her being assessed as a parent willing and able to provide for their daily care and protection needs.[67]
  2. It is widely accepted that there are multiple potential negative effects for children who witness domestic violence, including problems with aggressive and delinquent behaviours. Research supports that children in domestically violent households may receive limited emotional nurturance from their parents due to their diminished emotional and physical availability, which may inhibit healthy emotional development.[68]
  3. This matter will be further explored at the hearing.

Lack of insight.

  1. There is also some question regarding the level of insight the Applicant possesses in relation to his domestic violence. In his affidavit, the Applicant talks generally about domestic violence and then states that he "accepts that those who engage in serious domestic violence involving children in a domestic violence setting may pose a risk to children in other settings due to their lack of insight about their behaviour.[69] He then proceeds to talk about the fact that there has never been a DVO naming his children. He fails to mention the Temporary Protection Order of 1 December 2017 naming the Applicant as the respondent and including a requirement that he "must be of good behaviour towards the children, must not commit associated domestic violence against the children and must not expose the children to domestic violence".[70]
  2. Dr Keen expresses the view that the Applicant has "sufficient insight" into his domestic violence.[71] Nevertheless, in none of the material the Applicant filed does he appear to express any insight or remorse in relation to his behaviour, or in relation to the harm he inflicted on others. The Applicant also makes further statements that appear to minimise his behaviour in the past. He says that he consented to the domestic violence order on 17 October 2017 "on the basis that I felt there was no 'necessity or desirability' to make an order because I had not engaged in similar conduct in the past and there was no risk to [WS] or the children".[72]
  3. The Respondent submits that the Applicant's failure to acknowledge the issues of domestic violence or to demonstrate any remorse and insight in relation to them, is a concerning factor. The importance of an Applicant possessing genuine insight as a protective factor was noted by the former Children's Services Tribunal in Re TAA.[73] The Tribunal observed that:[74]

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.

  1. The Applicant's insight will be further explored at the Hearing.

Benefits to Children and the Applicant

  1. The Respondent notes that "... any benefit which might be thought to flow to children by having access to the applicant's knowledge, experience or flair in working with children is of no relevance if there exists an unacceptable risk to children in future contact”.[75]
  2. The Applicant seeks a blue card to participate in community work by volunteering at a primary school. The Respondent notes that any hardship or prejudice suffered by the Applicant as a result of not obtaining a blue card is of no relevance.[76]

Transferability

  1. The effect of issuing the Applicant a blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the Act, not just for the purpose for which the Applicant has sought the card. The Applicant could work with children of any age, gender or vulnerability. The Tribunal has no power to issue a conditional blue care and once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.

Conclusion

  1. The Respondent submits that the object, purpose and nature of the decisions enshrined in the Act support a precautionary approach to decision making on blue card matters. Apart from the inherent impossibility of predicting future risk with certainty, the WWC Act is premised on past behavior being an indicator of future behavior and allows for precautionary action to be taken even if it is not demonstrated that a person's criminal offending is directly child-related.
  2. A positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. The Respondent submits that the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
  3. The Respondent submits that the risk factors identified in the proceedings render the case an exceptional case such that it would not be in the best interests of children and young people for the Applicant to be issued with a positive notice and blue card.

The Respondent’s oral submissions at the conclusion of the hearing

  1. [27]
    After exploring the issues of concern, the Respondent provided oral submissions at the conclusion of the hearing. The Tribunal observed that the oral submissions were quite different, in focus and content, to the written submissions. In oral submissions, the legal officer for the Respondent included the following commentary:
    1. (a)
      The Tribunal must adopt a precautionary approach.
    2. (b)
      The Applicant has a number of protective factors: he has tertiary education and he did have a successful career, he had no identified issues with working with children, he has gained insight through his parenting courses and counselling, he has a good relationship with Dr Keen who has treated him for eight years, the Applicant has gained significant insight into domestic violence and understands the harm that domestic violence can cause.
    3. (c)
      Dr Keen does confirm that the Applicant has insight.
    4. (d)
      It is conceded that the only identified violence event occurred in August 2017 (the separation argument).
    5. (e)
      The Respondent notes but does not rely upon the allegation of domestic violence in April 2017 (when the Applicant collected his daughter from school and took her to her grandparents’ home and later spoke with his ex-wife).
    6. (f)
      If the Applicant’s ex-wife did take steps to protect her own safety by the plan to alert another that is concerning because preplanning is highly suggestive of concerns, but specific detail is limited. The Respondent does concede that there was collusion between the Applicant’s ex-wife and her friend.
    7. (g)
      The inconsistencies in the information provided by the Applicant’s ex-wife are conceded by the Respondent. She was in a highly stressed case.
    8. (h)
      The children do say that they were exposed to domestic violence, but the presiding Magistrate was satisfied that there is no ongoing risk and did revoke the domestic violence order.

The Tribunal findings and decision

  1. [28]
    The Tribunal focuses on the best interest of children. This is not a case which involves imposing punishment upon the Applicant nor is it a case where the Tribunal considers any detriment to the Applicant as a result of determining that the case is exceptional. The Tribunal is concerned about the effect on children if the Applicant has a blue card.
  2. [29]
    The Tribunal must consider whether the actual, and alleged, domestic violence indicates long-term concerns. The Tribunal must consider whether the Applicant has gained insight, particularly into those triggers that may cause a lack of judgement, which may have a potentially adverse effect on children. The Tribunal considers whether the Applicant has addressed the triggers and has gained skills to avoid issues arising in the future. The Tribunal considers the risk factors and the protective factors. The Tribunal considers the Applicant’s lifestyle and support network.
  3. [30]
    The decision of the Tribunal is not intended to reward, or punish, the Applicant. The decision of the Tribunal is centred around the interests of children. In making its decision, the Tribunal does consider the WWC Act and, in that regard, notes that the presumption is to find that the application is not exceptional. No party has the onus of proving whether the case is exceptional.
  4. [31]
    Having carefully considered the evidence, the Tribunal is of the view that this is not an exceptional case.
  5. [32]
    In coming to its conclusion, the Tribunal does so by adopting a precautionary approach to decision-making on blue card matters.
  6. [33]
    What is established on the evidence is that the Applicant did engage in an act of domestic violence during the course of the separation argument with his ex-wife in August 2017. He flipped a coffee table, and he yelled. The allegations against the Applicant beyond that are not established on the evidence. At least not to the standard required by the Tribunal to raise concerns about the suitability of the Applicant to be involved in child-related employment.
  7. [34]
    In this case, the Applicant’s domestic violence is not a reliable indicator of future behaviour. What the Applicant has achieved through counselling which has been extensive and ongoing, and the recommendations and conclusions of Dr Keen, serve as a more reliable indicator of future behaviours. Through counselling, the Applicant has gained considerable insight into his behaviour and has a very good understanding of issues around domestic violence, and the care of children.
  8. [35]
    The Tribunal found the evidence of Dr Keen compelling. The Tribunal accepts the content, conclusions and recommendations contained within Dr Keen’s Report.
  9. [36]
    The reliable evidence presented to the Tribunal does not suggest that the Applicant has exposed his young children to domestic violence whilst in his care, or if they were exposed, they have not been placed at risk of physical and emotional harm. As a result of a Family Law Court order made on 16 October 2019,[77] they now spend most of their time in his care.
  10. [37]
    The Tribunal must consider risk factors. In this case, the Applicant has demonstrated an ability to absorb considerable pressure and deal with the stress in a way that would not put children at risk. The level of stress increased dramatically in August 2017 with the family law separation and the making of the vexatious allegations against him. Since that time, there is nothing in the actions of the Applicant that might be suggestive of him being a risk to children. Given that the level of stress increased dramatically in 2017, then the Applicant has demonstrated that he is able to cope with stress, and triggers, in such a way as not to pose a risk to children.
  11. [38]
    In determining that this is not an exceptional case, the Tribunal does take account of the considerations prescribed by section 226 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. In making decisions of this type, the Tribunal does consider the risk to children.
  12. [39]
    The Tribunal acknowledges that a blue card is fully transferable.

Publication

  1. [40]
    The Tribunal may make an order prohibiting the publication of the following (other than in the way and to the persons stated in the order):
    1. (a)
      the contents of a document or other thing produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal;
    3. (c)
      information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[78]
  1. [41]
    The Tribunal may make such an order only if the Tribunal considers the order is necessary:
    1. (a)
      to avoid interfering with the proper administration of justice; or
    2. (b)
      to avoid endangering the physical or mental health or safety of a person; or
    3. (c)
      to avoid offending public decency or morality; or
    4. (d)
      to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
    5. (e)
      for any other reason in the interests of justice.[79]
  2. [42]
    The Tribunal is of the view that it be contrary to the public interest to identify the Applicant and the Applicant’s ex-wife and their children.

Orders

  1. [43]
    The orders are as follows:
  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the names of the Applicant, the Applicant’s ex-wife and the Applicant’s children.
  3. The decision of the Tribunal is to be delivered to the parties by email.

Footnotes

[1]  Police brief of facts, BCS-29.

[2]  Respondent’s Outline of Submissions dated 11 February 2020, [26].

[3]  The Crown entered a true Bill on 6 September 2018 in the Rockhampton District Court [BCS-26].

[4]  Letter from the complainant to the Office of the Director of Public Prosecutions dated 6 March 2018 [referred to at page 15 of 19 of the Reasons Document].

[5]  WWC Act, s 168.

[6]  Ibid, s 20(2).

[7]  Reasons Document, 16 [6.4].

[8]  Ibid, 17-18 [7].

[9]  Rockhampton Magistrates Court material, NTP-130, noting the first temporary order protection order was granted on 31 August 2017.

[10]  Rockhampton Magistrates Court material, NTP-131.

[11]  Ibid, NTP-141.

[12]  Respondent’s Outline of Submissions dated 11 February 2020, [30].

[13]  Department of Child Safety, Youth and Women material, NTP-18.

[14]  Ibid.

[15]  Ibid, NTP-25.

[16]  Ibid.

[17]  Ibid, NTP-36-47.

[18]  Ibid, NTP-52-56.

[19]  Ibid, NTP-63-75.

[20]  Ibid, NTP-72.

[21]  Ibid, NTP-84-90.

[22]  Ibid, NTP-94-97.

[23]  Ibid, NTP-97.

[24]  Ibid, NTP-102-105.

[25]  Ibid, NTP-84-90.

[26]  Ibid, NTP-110-120.

[27]  Ibid, NTP-114.

[28]  Ibid, NTP-115.

[29]  Ibid.

[30]  Ibid, NTP-116.

[31]  Ibid.

[32]  Ibid.

[33]  Ibid, NTP-117-118.

[34]  Ibid, NTP-114.

[35]  Ibid.

[36]  For the full analysis of risk level index scores, see NTP 106-108.

[37]  Departmental material, NTP-117.

[38]  Ibid, NTP-118.

[39]  Applicant’s material, annexure "D", 36–37.

[40]  Ibid, 34–35.

[41]  Rockhampton Magistrates Court material, NTP-131.

[42]Working with Children (Risk Management and Screening Act) 2000 (Qld), s 5.

[43]WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].

[44]Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VR 1, [10].

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

[46]  Department’s disclosed material, NTP-25.

[47]  Departmental records, NTP-40.

[48]  The evidence of Dr Keen and the Applicant was that the Applicant worked until 2013.

[49]  Affidavit of the Applicant, sworn 26 November 2019.

[50]  Applicant's life story, 5 August 2019.

[51]  Dr Alan Keen, 23 January 2020.

[52]  Ibid.

[53]  Ibid.

[54]  Rockhampton Magistrates Court material, NTP-153.

[55]  Ibid.

[56]  Material supplied by the Office of the Director of Public Prosecutions, 3 December 2018, BCS 51.

[57]  Rockhampton Magistrates Court material, NTP-153.

[58]  Department of Child Safety, Youth and Women material, NTP-97.

[59]  Ibid, NTP-18, 52-56, 72.

[60]  Ibid, NTP-36-47.

[61]  WS, 6 March 2018, BCS-78.

[62]  Rockhampton Magistrates Court material, NTP-153.

[63]  WS, 6 March 2018, BCS-78.

[64]  Department of Child Safety, Youth and Women material, NTP-18, 52-56, 72.

[65]  Rockhampton Magistrates Court material, NTP-143.

[66]  Application to review a decision, filed 3 July 2019, Attachment 1, 3.

[67]  Department of Child Safety, Youth and Women material, NTP-117-118.

[68]  J H Grych et al, ‘Patterns of Adjustment Among Children of Battered Women’ (2000) 68(1) Journal of Consulting and Clinical Psychology 84.

[69]  Affidavit of the Applicant, sworn 26 November 2019, [57]-[59].

[70]  Rockhampton Magistrates Court material, NTP-143.

[71]  Dr Alan Keen, 23 January 2020.

[72]  Affidavit of the Applicant, sworn 26 November 2019, [41]. In his affidavit, the Applicant went further to explain why he did consent to the making of the order by using these words: ‘But due to the cost of defending that matter, and the contemporaneous criminal charges, I needed to focus my energy and financial resources on that matter’.

[73]  [2006] QCST 11.

[74]  lbid, [97].

[75]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289, [33].

[76]Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171, [109] (Buss J).

[77]  Applicant’s material, Annexure 2.

[78]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 (1).

[79]  Ibid, s 66(2).

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Editorial Notes

  • Published Case Name:

    RS v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    RS v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 105

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    15 Apr 2020

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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