MWL v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 370
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- MWL v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 370
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MWL v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 370
MWL v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 370
CITATION: | MWL v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 370 |
PARTIES: | MWL (Applicant) |
v | |
Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML012-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 22 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member J Allen |
DELIVERED ON: | 22 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | BLUE CARD – where negative notice issued on basis that exceptional case existed where no serious offences – whether risk factors of extensive criminal history constituted exceptional case – where no offences for 5 years and offending behaviour commenced at time applicant was an abused child who became ward of the State and then homeless. Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 6, 221, 226 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20 and 24 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES:
APPLICANT: | MWL appeared on his own behalf. |
RESPONDENT: | Ms Kylie Heath appeared for the Public Safety Business Agency |
REASONS FOR DECISION
- [1]MWL applied for a blue card, which would enable him to work with children. At the time, he was studying for a Diploma in Counselling and part of the course requirement was that he perform some supervised hours with children, which would require a blue card. The decision of the agency was that he be issued with a negative notice and so he was not entitled to a blue card. He has now sought review by the Tribunal of that decision.
- [2]When determining a review the Tribunal must decide the review in accordance with the Act under review and the Tribunal’s own Act[1] and makes a new decision by way of a fresh hearing on the merits[2]. The purpose of the review is to produce the correct and preferable decision[3]. The Tribunal may relevantly confirm the original decision or set it aside and substitute its own decision[4].
- [3]The decision whether or not to issue a Blue Card is made in accordance with s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Act is be administered under the principal 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[5].
- [4]Where there are no charges or convictions for what are known as serious offences the Tribunal must issue a positive notice unless it is satisfied that there is an exceptional case in which it would not be in the best interests of children to issue a positive notice in which case it must issue a negative notice. In determining whether there is an exceptional case the Tribunal is to look at the risk and protective factors in respect of each individual case[6]
- [5]When considering an application for a blue card one of the primary sources of information is material provided by the Commissioner of Police in relation to the applicant’s criminal history which includes both charges and convictions and which may extends back to matters which occurred while the applicant was a juvenile.
- [6]In determining what is an exceptional case the Tribunal must have regard to the relevant matters set out in s 226 of the Act in relation to the convictions or charges. That is whether it is a conviction or charge; when the offence was committed; the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and in the case of a conviction the penalty and the courts reasons for its decisions where an imprisonment order is not imposed.
- [7]MWL’s criminal history is extensive and dates backs to when he was 12 years old noting that he was born in 1976. He has a background of being abused as a child both sexually and physically and was made a ward of the State at the age of 12. His initial offending coincides with this period in particular while he resided in institutional care at places such as Boystown and then on the streets as a homeless youth.
- [8]Between the period 1989 to 1995, he has numerous charges and convictions in respect of property offences including breaking and entering, stealing and receiving and breaches of the Bail Act. He says the committing of the offences was a matter of survival when he was on the streets. The penalties ranged from admonishments to care and protection orders and sometimes fines. The information provided by the Queensland Police Service indicates that the offences were mostly minor. At one point, he presented at a police station stating that he wanted to clear the slate and admitted to numerous offences. It was always stated in the police briefs that he was cooperative.
- [9]This offending appears to have ended when MWL was able to enter the workforce. If this offending behaviour had not ended early in MWL life the fact that he had approximately 50 charges and many convictions in this area would have indicated that he was an habitual criminal and would dispose the Tribunal to consider that an exceptional case existed in regard to this series of offences.
- [10]MWL came from a background where domestic violence was perpetuated by his father on his mother and he himself suffered violence attempting to intervene between his father and mother. He therefore had very poor role models in terms of dealing with the issues, which arise in everyday life between spouses. He married early and had his first child at the age of 25. By the time that he and wife had had a second child his marriage was in trouble and he was made the respondent in a domestic violence order. He breached that order three times and was convicted and fined each time.
- [11]The third breach arose on 21 December 2004, on that day his wife informed him that she was separating from him and putting their children into care. He reacted badly punching a wall which he had also done previously and took 5 serapax, a quantity of alcohol and smoked cannabis. He then drove a vehicle causing a car to crash and then crashing into another car. He is said to have shouted he had “lost his wife, his children, his business, just kill me” He then jumped into traffic, which had to swerve to avoid him. He also resisted the police when he was apprehended. This incident resulted in multiple offences including dangerous operation of a vehicle and adversely affected by an intoxicating substance, breach of order-respondent with order, possess utensils or pipes, serious assault-commit crime/resist/prevent arrest.
- [12]The dangerous driving charge was heard before Judge Trafford-Walker in the Ipswich District Court. The transcript of the hearing notes that MWL pleaded guilty which saved cross-examination and the community the expense of a trial. The prosecution considered there were aggravating factors in terms of the maximum penalty being 5 years, that he had collided with two cars and he was significantly affected and caused a significant amount of property damage. MWL’s counsel explained some of his history and noted the circumstances of the day and the extent of MWL’s remorse which was reflected in the fact he had now been receiving help from his church and has involved himself in community groups.
- [13]Judge Trafford-Walker noted MWL had a bad criminal history and queried him in regard to his children. He said that it is important that you fulfil those responsibilities and set an example as far as you can. Judge Trafford-Walker stated that “normally he would impose a term of imprisonment to deter such conduct, however I have considered a number of factors in this case. Fortunately, no one was injured. I impose an intensive correction order for a period of twelve months. During that period you must not commit any further criminal offences, you must report to the offices of the commission here in Ipswich and report and receive visits by them. You must take part in counselling and attend any programs directed by them. You must perform in a satisfactory way such community service directed by them”.
- [14]The other charges resulting from the incident of 21 December 2004 were separately heard and MWL was convicted and fined in respect of each charge.
- [15]There were no further charges involving motor vehicles after the above incidents but there were other charges. There was a charge in relation to a 25 cm hunting knife being carried by MWL in 2006. At the time he said it was carried for protection and he had actually left it at police premises when he was there on another matter and had acknowledged it was his. He was fined $150 with no conviction recorded. He had previous history in regard to the carrying of knives while a minor in 1993. The Tribunal notes that in submission to the Agency MWL claimed that he could only recall carrying a waiter’s friend or Swiss army knife at the time. He has stated that he no longer carries knives as he knows they are unsafe.
- [16]MWL later entered a new relationship which also was subject to domestic violence allegations and police were called out to a residence on 12 September 2007 in respect of a disturbance. There were allegations from both MWL and his then partner in regard to violence. At the time the police found him he was wounded. MWL was in a bad state and resisted police. Ultimately, the prosecution offered no evidence in regard to the domestic violence charge and the assault or obstruct police officer charge was dismissed.
- [17]A child was born as a result of MWL’s next relationship and she currently lives with him in accordance with an order of the Federal Circuit Court. That relationship ended in 2013 and according to Child Safety records there were some concerns raised about police intervention which necessitated domestic violence orders being made. The Tribunal notes that while the initial orders were cross orders for both partners MWL was the aggrieved party in respect of the last domestic violence order. There were no further charges made against MWL in respect of domestic violence following the incident in 2007.
- [18]MWL filed a report prepared by a social worker in regard to the ongoing care of his child. This report notes that he has a good and appropriate relationship with his daughter but that he has limited conflict resolution skills in regard to dealing with his former partner. It also recommended that he have an assessment of his mental health to determine whether he suffered any psychological or psychiatric illness as a result of the affects of his childhood abuse. These issues were of particular concern to the Agency.
- [19]At the hearing MWL stated that if he was in a position of conflict with one of his former partners that he could not resolve he would walk away to avoid any further confrontation. He also stated that he did not take any medication and that he was in good all round health. He had filed a letter from his doctor stating that he had no physical or psychiatric issues which would affect his eligibility for a blue card.
- [20]The Agency was also concerned that MWL has made several attempts on his life. Having regard to his childhood background this is understandable. There is nothing to indicate in his current circumstances that this is an issue.
- [21]MWL is currently in a positive relationship with a woman who has had prior experience with domestic violence. She was very supportive of MWL both in writing and at the hearing. She particularly said that he had a good relationship with her three children and that his strength was his raising of his daughter. She had read the reasons for decision which set out MWL’s criminal history so knew of his past domestic violence. She had not seen him being angry with anyone. Importantly, MWL had assisted her to deal with her former partner who was stalking her. When queried as to how this was done she said that he helped her develop a file of information which was taken to the police and which resulted in charges being laid.
- [22]She said that while she knew his drug history she would not tolerate any use of drugs by him as she had children. This is important because MWL has a long history of drug charges some of which resulted in convictions for possession of drugs and utensils. He has confirmed that he began to use illicit substances while on the streets at the age of thirteen. His last drug conviction was in 2009. He stated that he no longer uses drugs and is not associated with the people who he was involved in drugs with. He provided the results of a urine test which showed that he had no drugs in his system as at December 2014. This compares to the tests results from the 2004 charges involving the motor vehicle incident which indicated chronic use of drugs.
- [23]The Agency was concerned that MWL was not sufficiently aware of the triggers which may result in him using drugs again and techniques for dealing with these issue. MWL undertook Drug Arm training during the course of the application as a way of satisfying the concerns of the Agency. He indicated that he had successfully completed the course and that he understood that stress could lead him towards drugs. He stated that he gardened and had an occasional alcoholic drink to deal with stress and would if necessary have access to counsellors to deal with stress issues and any issues in a relationship. This is very important as again if the Tribunal thought that MWL may be a continuing user of illegal drugs or prone to their use it would raise issues of his suitability to be working with children in terms of him not being able to provide a positive role model.
- [24]MWL’s mother considers that MWL has turned his life around since he met his current partner and stated that he no longer used illegal drugs. She acknowledged that he used to get angry but that he doesn’t now and that he was good with children. MWL advised that he has a relationship with his father though it is strained. He stated that his father has re-partnered but he has not sought to inform his father’s partner of his father’s history. He said that he would only allow contact between his children and his father on a supervised basis. In the social work report it was also noted that MWL acts appropriately by not undermining his children’s relationships with their mothers.
- [25]MWL has several risk factors in particular his previous domestic violence and his use of illegal drugs. The Agency is concerned that there has not been sufficient time since his last offending to show that there has been a permanent change in his risk factors and he has previously had long periods between charges. The sheer number of charges which MWL has been subject to and the length of his domestic violence history over many relationship and into his thirties and the twenty year history of drug use may tend to show that this is an exceptional case where it is not in the best interest of children for MWL to be granted a positive notice.
- [26]There are though protective factors which ameliorate this. He is now 39 years old and in a stable relationship. He has insight into his past and knows that the use of violence is not an appropriate way to deal with confrontation. He has good relationships with children which can be seen in respect of his daughter and the children of his partner. The independent report from the social worker confirms this in respect of his daughter and his partner also confirmed it. He has acknowledged insight into his juvenile offending and has taken steps through anger management courses and drug arm to enable him to deal appropriately with the triggers which arise in everyday life. While conflict resolution skills may be limited in terms of avoiding confrontation he is successfully using these with his former partner to deal with their joint child. He also had a poor relationship with the police when he was younger and he now enlists the police appropriately as a way of dealing with situations such as abuse from his former partner and the stalking by his current partners ex-partner to deal with them. He has stopped using illegal substances and has not been charged with any offence for 6 years.
- [27]His motivation is to ensure that he does the best he can because his daughter gives him a good reason to live. As someone who has lived through abuse as a child and taken a very hard road to deal with the inappropriate role modelling he now wishes to give back something to the community and to show that with resilience change is possible. For him to be able to do this he requires a blue card.
- [28]The Tribunal is satisfied that the protective factors in this case outweigh the risk factors and that this is not an exceptional case where a negative notice should issue. In which case the chief executive must issue a positive notice.
- [29]The material that has been filed with this application identifies the children of MWL and it is appropriate that the Tribunal make an order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to ensure that their identity is protected. A non-publication order to ensure that is made accordingly.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19.
[2] Ibid s 20.
[3] Ibid s 20.
[4] Ibid s 24.
[5] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6.
[6] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.