Schmidt v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 310
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- Schmidt v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 310
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Schmidt v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 310
Schmidt v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 310
CITATION: | Schmidt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 310 |
PARTIES: | Desmond George Schmidt (Applicant/Appellant) |
v | |
Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML216-14 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 2 April 2015 |
HEARD AT: | Toowoomba |
DECISION OF: | Member Wood |
DELIVERED ON: | 6 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Childrens matters - application for Removal of Negative Notice – Applicant has criminal history – none of the offences “serious offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors. Working With Children (Risk Management & Screen Act) 2009 (Qld) ss 5, 6, 221, 226 & 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 TAA [2006] QCST 11 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492 Doney v R [1990] HCA 51 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Self Represented |
RESPONDENT: | Ms Natalie Taylor, Solicitor Public Safety Business Agency |
REASONS FOR DECISION
- [1]This is an Application to review the Respondent’s decision to issue a Negative Notice to the Applicant. The Respondent’s Decision was made and communicated by correspondence to the Applicant on the 2nd October 2014.
- [2]The proceedings were held before me in Toowoomba on the 2nd April 2015 but were not concluded on that day. Directions were made in particular the Hearing adjourned to a date to be fixed in order that evidence could be obtained in relation to the circumstances of the acquittal of the Applicant on a charge before the Bowen District Court in 1987.
- [3]Enquiries were made by the Respondent and little information is available from those Court records. The Respondent in their Submission outlined that the only information available to them was that the Trial resulted in a “directed verdict”. There has been no need to hear further evidence as a result of those enquiries.
- [4]The Applicant was born on the 10th March 1950 and at the time of the Hearing was 65 years of age. At the time of the Hearing he was employed in a “Fly In Fly Out” position involving him working away from home for periods of time being 2 weeks on, 2 weeks off. He has maintained this employment for 5 years. Prior to that and for a period of 30 years he was a long haul truck driver and as a result was absent from home for lengthy periods of times. He acknowledges that his relationship with his family was a bit “at arms length” due to his career.
- [5]The Applicant completed a Painters and Decorators Apprenticeship and then joined the Army and became a Transport Driver thereafter. He continued in that employment until recently. He was married firstly in 1969, that marriage lasted for 7 years until his Wife was tragically killed in a car accident by a drink driver. His eldest daughter was also killed in this accident. He married his second Wife in 1981 and they remain married. He has two children from his second marriage and 3 surviving children from his first marriage.
- [6]In the course of his evidence he acknowledged that his relationship with his Wife has its ups and downs and they have had marriage counselling in the past. This occurred about 20 years ago.
- [7]The Applicant applied for a Blue Card in order that he and his Wife could be approved as Kinship Carers for their 3 grandchildren. In December 2013 the Department of Child Services removed the 3 grandchildren from the care of his son and under a safety plan developed by that Department were put in the care of the Applicant’s Wife. A long term Guardianship Order has been put in place and an Application was made by the Applicant and his Wife to become Kinship Carers.
- [8]The Applicant has a criminal history consisting of the following:-
- Brisbane Magistrates Court 7 August 1972 – Knowingly concerned in forging and uttering cheques – Guilty. Fined $40.00 and $20.00.
- Northam Court of Petty Sessions (WA) 4 November 1985 – Speeding by more than 30 kilometres per hour but less than 40 kilometres per hour – Fined $110.00.
- Bowen District Court 9 September 1987 – Indecent dealing with a girl under the age of 17 years – Not Guilty
- Ceduna Magistrates Court (SA) 11 May 1999 – Fail to possess duly completed Log Book – Fined $50.00.
- Mossvale Local Court (NSW) 23 April 2004:-
- Negligent driving (not occasioning death, grievous bodily harm) – Fined $500.00;
- Common Assault – Fined $800.00
- Not give particulars to other drivers – dismissed.
- [9]In relation to the charge of indecent dealing with the girl under the age of 17 years the allegation against the Applicant was that the Complainant was travelling with the Applicant to Bowen in his Truck. The Complainant alleges that she was asleep and woke to feel the Applicant rubbing his hand on her vagina. The Complainant did nothing except pretend to be asleep and then at the next available stop the Complainant Child jumped out of the truck and left. The Complainant was 15 years of age at the time. The allegations are that the Applicant rang the Mother of the Complainant Child who confronted him with allegations when it is alleged that the Applicant admitted assaulting the Complainant Child. The Applicant was charged and proceeded to Trial in the District Court in Bowen. He was found not guilty.
- [10]When cross examined about these allegations in particular the phone call with the Complainant’s Mother he recalls that the Mother had made general comments about touching the daughter but no specific allegations were made. He agrees that he made a comment which could have been considered an admission and also a conversation about the fact that he was taking amphetamines at the time. The amount of amphetamines that he was taking was determined by the level of stimulation required for his truck driving.
- [11]He can recall that the side effects of the amphetamines were that he had a complete lack of sexual function, he was grumpy, stressed and intolerant. His drug use was solely when he was driving. He denies any recreational use. He has not used elicit substances for 5 years.
- [12]In relation to the Trial itself he recalls that the Complainant’s Mother gave evidence and he was not required to give evidence. His recollection was that the Judge directed the jury to return a verdict of not guilty.
- [13]In the course of cross examination he was also asked about the common assault. The allegations included that the Applicant waved a tyre lever above his head in a threatening manner at the complainant. This allegation is denied by the Applicant but he acknowledges his convictions as recorded. The Applicant impressed as a reliable and honest witness who was doing his best to recall incidents which occurred in the past.
- [14]The Applicant called evidence from Ms Elizabeth Addie a Psychologist who was engaged for the purposes of undertaking an assessment of the Applicant’s suitability for child related employment. She is a provisionally registered psychologist who has had specialised training in neuropsychology and has been engaged in the past to prepare Reports for Child Safety. She also has a Masters in Education.
- [15]She prepared a Report which gives detailed results of psychological assessments which she has undertaken. The Report was dated 28th January 2015. She records in her Report the detailed results of the assessments but in summary says as follows:-
“The clinical assessments found no evidence of pathology in any area of mental health or anti-social behaviour. There was no indication of any underlying personality disorder. Mr Schmidt’s ethical decision making assessment showed that he was able to weigh up decision considering possible consequences, and to justify his choices according to ethical principles. Mr Schmidt has not exhibited a pattern of aggressive behaviour or of sexually inappropriate behaviours. Weighing up these factors within the scope of this psychological assessment the Writer considers that Mr Schmidt is suitable for child related employment.”
- [16]In terms of the risk of the Applicant returning to drug use, her evidence was that there was nothing in his profile which would suggest drug seeking behaviour and that in her view it was not likely that he would use drugs again as he had not done so for a period of 5 years. It is significant that Mr Schmidt’s current employment requires him to undergo a breath analysis each day and he is subject to random tests for drugs.
- [17]In relation to sexual risks she gave evidence that if he was a high risk then she would have expected more historical offending but on her assessments his risks were not elevated in any areas.
- [18]The Applicant called evidence from Jennie Mantiet. She provided a written statement to the Respondent but also gave oral evidence that she had known the Applicant for 14 years. Her background was that she was a Special Education Teacher and is a neighbour of the Applicant. They socialise with the Applicant and his Wife and barbeques, birthday parties etc and has had the opportunity to observe the grandchildren interact with the Applicant. From her observations the children love the Applicant and enjoy spending time with him.
- [19]She socialises regularly with the Applicant and the children have sleepovers at his house regularly. She did not know whether or not the Applicant had a criminal history but is of the view that he speaks and acts appropriately to children including her own.
STATUTORY FRAMEWORK
- [20]The Applicant lodged an Application with the Commissioner for Children, Young People and Child Guardian to be issued with a Positive Notice and Blue Card. The Applicant has a criminal history and was invited to make submissions in relation to it. On the 2nd October 2014 the Applicant was issued with a Negative Notice under Working With Children (Risk Management and Screening) Act 2000 (Qld). On the 17th October 2014 the Applicant lodged an Application to review the Respondent’s Decision.
- [21]In considering the information it had received the agency determined that none of the offences were “serious offences” as that term is defined and that therefore a Positive Notice must issue unless it was satisfied that it was an exceptional case in which would not be in the best interest of the children to be issued with Positive Notice.[1] The Commissioner was of the view that it was an exceptional case and issued the Negative Notice.
- [22]The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case[2] however the Tribunal must exercise its discretion in each case within the parameters of the legislation.
- [23]There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine wether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists[3].
- [24]In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.
- [25]The principles for administering the Act are that the welfare and best interest 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.[4]
- [26]
RISK ASSESSMENT
- [27]The protective factors are as follows:-
- The Applicant has a close relationship with his Wife and good social supports in the community. The Applicant has formed positive relationships with fellow workers.
- The Applicant has abstained from drugs for the past 5 years and has no convictions for drug use in his criminal history. He was able to succeed in giving up drugs without external assistance.
- The Applicant does not have any entry on his criminal history for a period of 11 years and the convictions are for relatively minor offences. There are no convictions for drug or sexual offences.
- The Applicant does not have any recognisable cognitive deficits or chronic mental health issues or personality disorders.
- The Applicant has random urine drug screens with his employment and daily breath analysis.
- The allegation of sexual impropriety was made in excess of 29 years ago with no allegations of sexual misconduct or impropriety either before or after this allegation.
- [28]Risk factors are as follows:-
- The Applicant works as a Fly In, Fly Out worker and works long hours. There is a risk of relapse to drug use.
- The Report of Ms Addie acknowledges moderately elevated scores for antisocial behaviour but the scores are below clinical levels and may not reflect current functioning.
APPLICANT’S SUBMISSIONS
- [29]The Applicant has not made any formal submissions.
RESPONDENT’S SUBMISSION
- [30]The Respondent submits that there are risk issues which out weigh the protective factors. The Respondent submits that the Applicant’s ability to make appropriate behavioural choices is such that the Negative Notice should stand.
- [31]The Respondent submits that this is an exceptional case in which it would not be in the best interests of children and young people for him to be issued with a positive notice.
DISCUSSION
- [32]The Applicant was charged many years ago with a charge of indecent dealing with a child. He was found not guilty of that charge and on the evidence before me the finding of not guilty was a verdict directed by the Court. The Law insofar as directed verdicts are concerned is and is as follows[6]:-
“It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the Jury in its deliberation and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty.”
- [33]This authority post dates the directed acquittal, however it reflects the law as it was at the time of the directed verdict. It is clear that the Law is that the directed verdict must only be entered where the evidence is of such a state that it will not support a guilty verdict.
- [34]The Respondent submits in relation to this that it is not clear what evidence was before the Court. Suffice to say that whatever evidence was before the Court the Judge presiding in the matter considered it to be insufficient to allow the matter to be determined by a jury. On the Applicant’s evidence that evidence included the Complainant’s Mother’s evidence.
- [35]Other than this charge the Applicant’s criminal history does not give rise to any concerns about the Applicant’s suitability to work with children. The Report from the Psychologist Ms Addie is detailed and comprehensive. In the course of undertaking her reviews she used a number of screening tools in addition to her own interviews in forming the views expressed in her Report.
- [36]I formed the view that the Applicant was an honest hardworking person who now wished to genuinely take on the care of his grandchildren.
CONCLUSION
- [37]In all of the circumstances I am not satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Positive Notice and accordingly set aside the Decision to issue a Negative Notice to the Applicant and direct that a Positive Notice is to be issued to him.