HT v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 55
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- Unreported Judgment
- HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 55
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HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 55
HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 55
CITATION: | HT v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 55 |
PARTIES: | HT (Applicant) |
v | |
Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML174-14 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 12 December 2014 |
HEARD AT: | Brisbane |
DECISION OF: | Member Joachim |
DELIVERED ON: | 2 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Blue Card – Exceptional Case – where applicant has breached domestic violence order – where Commissioner for Children and Young People and Child Guardian received complaint from Red Cross regarding applicant’s behaviour toward pregnant teenager client of Red Cross – where applicant’s positive notice was cancelled by Public Safety Business Agency – where review sought so applicant can engage in child related employment – where risk factors outweigh protective factors – whether applicant’s case is exceptional Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Re TAA [2006] QCST 11 |
APPEARANCES:
APPLICANT: | HT |
RESPONDENT: | Public Safety Business Agency |
REPRESENTATIVES:
APPLICANT: | Self |
RESPONDENT: | Ms N Taylor |
REASONS FOR DECISION
- [1]HT is 37 years of age. He lives in Brisbane and is currently not working. He wishes to study to become more involved in childhood learning. He has been a volunteer in various agencies in recent years.
- [2]He first received a positive notice and blue card in 2003. He had been issued with a number of positive notices and blue cards over the years, the most recent being 14 February 2012. Following notification by the Queensland Police Service that HT’s police information had changed his eligibility for a blue card was reassessed.
- [3]On 7 August 2014, following that reassessment the Public Safety Business Agency which now has responsibility for the issuing of positive notices, HT’s positive notice and blue card was cancelled and he was issued with a negative notice.
- [4]HT seeks a review of that decision so he can pursue working with children and young people.
- [5]As none of his offences are serious offences under the legislation, HT is entitled to receive a positive notice and blue card unless it is considered his is an exceptional case such that it would harm the best interests of children for him to have a positive notice.
- [6]The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing. The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). This outlines what I have to consider in deciding if an exceptional case exists.
- [7]The purpose of the review is to produce the correct and preferable decision. The Tribunal may:
- confirm or amend the Agency’s decision;
- set it aside and substitute its own decision; or
- set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.
- [8]Exceptional case is not defined in the Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
- [9]I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
- [10]The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act.
- [11]Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
- [12]Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment.
Decision of the Agency summarised
- [13]The Agency re-examined HT’s eligibility for a blue card following an offence in December 2013 whereby he contravened a domestic violence order. The domestic violence order had been made on 21 July 2013. A condition of this order was that the applicant was to be of good behaviour to the aggrieved person and not commit domestic violence against the aggrieved.
- [14]It is alleged that the contravention of the domestic violence order occurred on 26 December 2013. The applicant is said to have become very aggressive towards the aggrieved person. The applicant was discharged as the prosecution offered no evidence in relation to the charge.
- [15]In March 2007 the then Commissioner for Children and Young People and Child Guardian received a complaint from the manager of the Red Cross Brisbane Night Café about the applicant’s behaviour. This was taken into account in assessing his eligibility for a blue card at this time because the applicant now has police information. It was not able to be considered in the prior assessments of the applicant’s eligibility for a blue card.
- [16]The applicant was involved in voluntary work with children who were very vulnerable. The children who attended the Night Café were said to be vulnerable youngsters who were more often than not homeless.
- [17]The Agency was concerned that contrary to the Red Cross policy HT commenced contact with a young female client of the Night Café. This contact was occurring outside of the working environment.
- [18]The Agency was concerned that the applicant had targeted one particular vulnerable adolescent with total disregard for the relevant child protection policy of the Agency.
- [19]When the Agency reconsidered HT’s eligibility it took into account his domestic violence and his apparent lack of ability to manage aggression and a propensity to react violently to situations when he is unable to control his emotions in particular his anger.
- [20]The Red Cross complaint information according to the Agency is directly relevant to his eligibility to be permitted to engage in areas of child related employment and business regulated by the Act.
- [21]The Agency was concerned that the evidence raised very serious concerns about HT’s ability to respond to situations of conflict in an appropriate manner which does not involve violence, his lack of ability to maintain appropriate boundaries when engaging with children and his lack of ability to understand and adhere to relevant child protection policy.
Evidence of the applicant and his witness
- [22]HT advised that he grew up in Ipswich and commenced studying architecture as a young man. He suffered a motor vehicle accident 16 years ago in 1998. This, he said, has turned his life on its head.
- [23]He advised the Tribunal that he has short term memory loss and his decision making capacity in relation to complex financial matters is impaired.
- [24]He acknowledges domestic violence occurred and referred to personal clashes with the aggrieved person. He agreed with the majority of the report of the aggrieved person in terms of the aggression that HT showed towards the aggrieved person although he does say he got caught up in the heat of the moment.
- [25]In relation to the breach which occurred in December 2013 he agrees that he was aggressive and he agrees that the aggrieved person would have been fearful. He stated that the aggrieved person did not follow an agreement that they had reached regarding handing back keys and a garage door remote.
- [26]He advised the Tribunal that he has been involved with a variety of doctors and counsellors over the years trying to avoid ‘flying off the handle’. The strategies he uses include breathing, thinking before acting, imagining a set of traffic lights with red light. He has identified his triggers for feeling angry as chest tightening, a lump in his throat, difficulty breathing and feeling trapped and feeling tension in a room. He identified that he needed to go to a quiet place and calm his thought patterns if these triggers are present.
- [27]He is seeking to improve his life through study and increased involvement focused on child specific learning in particular creative arts and creative music.
- [28]In relation to his not abiding by the Red Cross policy he said he was in communication with the young person every day. They swapped telephone numbers and he had contact with her three to four times per week for several weeks. She invited him to participate in drug use at the rear of a church. This he refused. He also advised the Tribunal that he was offered a return to the Red Cross if he retrained.
- [29]He stated that he was aware of the policy which he had broken but that he had approached the second in charge of the Night Café who advised him that it was okay for him to engage with the young person in respect of contact with the Mater Hospital. He did this because he thought he was the only one assisting her.
- [30]He advised the Tribunal that he had no experience with people in the young woman’s position. He stated that were he in such a position to assist in the future he would want to get the approval in writing and said he would not act without it.
- [31]Dr AK, HT’s treating psychiatrist provided a report to the Tribunal with which HT essentially agreed. HT also advised the Tribunal that he was sexually abused from the age of 3 to 4 through to 1992 when he would have been 14 or 15 by his music director. He stated he has not revealed this to Dr AK. He has started some counselling regarding this as a result of a referral from his general practitioner.
- [32]HT advised he is on mood stabilising medications. He felt he could bring an uplifting nature to interactions with children. He indicated his supports were a student counsellor which he hopes to be involved with next year, his family to a small degree and some friends which he occasionally sees.
- [33]CR gave evidence. He is an employee of the Red Cross and has been so for 10 years. He had run the volunteer service at Night Café when HT was a volunteer. CR assisted with recruitment, training, and management and support. He advised the Tribunal that typical clients of the Night Café were teenagers between 16 to 17 who are homeless and at risk although the age range of clients varied between 12 to 25 years. The idea of the Night Café was to provide a safe space, a free hot meal, clothing, first aid and people who care. He stated he had a diploma in Community and Human Services and had known the applicant HT for a few months.
- [34]CR advised that when volunteers received training the professional boundaries were explained to them in order to make it a safe place for the young people.
- [35]CR advised that he was aware that HT was seeing a young woman outside of the Night Café. He was unable to recall whether HT had sought approval for this.
- [36]CR’s manager had told him that he would be issuing HT with a formal warning. He recalled the young person making a complaint while HT was still working there. Soon after, he remembered HT had finished.
- [37]CR was unable to recall any discussion with HT regarding it being okay to take the young woman to the hospital. He stated he was not surprised that HT had been sacked noting also that it was rare for volunteers to be sacked.
- [38]CR advised that HT had told the person who was giving HT the warning that he would continue to see the young person outside of the Night Café and outside of the Red Cross regulations.
- [39]CR referred to the vulnerabilities of the young people at the Night Café as being involved with drugs and alcohol, having little income, having experienced trauma particularly abuse and predatory behaviour. He indicated that they also self harmed and were at risk of suicide.
- [40]He recalled a phone call he had had with HT warning him about developing a relationship and reminding him of the protocols.
- [41]He advised that HT had brought a lot of enthusiasm and caring energy into the Night Café and this was generally appreciated by the young people in difficulties.
- [42]He further advised that the demarcation issue had been raised by CR’s manager with HT but that HT wanted to give assistance outside of the protocol. CR said that at first the young woman appreciated HT’s support but subsequently told staff that his attention was ‘freaking her out’.
- [43]I refer now to the written report of Dr AK dated 20 October 2014. Dr AK is a psychiatrist. HT was referred to him in May 2006 and attends his practice on average every six weeks for a combination of supportive psychotherapy, cognitive behavioural therapy, psychoeducation and medication reviews. He noted that he had previously given HT a diagnosis of personality change secondary to an acquired brain injury (mixed type) and cognitive disorder not otherwise specified.
- [44]He indicated that his personality change is consistent with a frontal lobe type injury with evidence of decreased personal and social awareness impulsivity, heightened levels of irritability and at times paranoia. He also displays evidence of high order language dysfunction with difficulty in verbal expression.
- [45]He stated that over time HT has slowly developed increased levels of insight and that he is less quick to anger, less impulsive and generally does not display reckless behaviour.
- [46]He stated he was aware that in recent times there had been some significant stressors in HT’s life which have raised some episodes of behavioural dyscontrol which in turn has raised questions as to his suitability to work with children.
- [47]He considers HT has limited insight into the effects of his behaviour. He is unaware of any complaints made against him in relation to his behaviour around children but knows of some interpersonal difficulties with adults during his recent university studies.
- [48]He is satisfied that HT understands what is appropriate behaviour around children and is generally able to exhibit such behaviour.
- [49]He considers that the issue of HT’s behaviour comes down to impairments in judgment and misinterpretation of relationships.
- [50]He is however concerned about HT’s preoccupation with the Royal Commission into childhood sexual abuse. He states that due to his fixation on this subject he would question his ability to exercise reasonable judgement if exposed to other adults or children who disclose a history of childhood sexual abuse.
- [51]Dr AK believes HT would have difficulties maintaining personal boundaries and may not understand the ramifications of discussing such issues outside the constraints of a professional therapeutic relationship.
- [52]In relation to protective factors he notes HT has maintained treatment over many years, has always been willing to acknowledge his issues and engage in therapy with developing increased levels of insight.
- [53]Dr AK in summary said that he overall, he did not think HT represents a significant or immediate risk of harm to children at the current time. His only concern is with his continuing impaired levels of social judgment and his propensity to misinterpret aspects of interpersonal relationships. Historically he says this has occurred exclusively in the context of adult relationships but he could not say that this may not happen with younger adults or children.
Submissions of the applicant
- [54]HT acknowledges he went outside of the rules of the Red Cross in providing liaison between a pregnant teenager and her hospital.
- [55]He submits he has done nothing wrong when utilising his blue card and did not engage in any inappropriate behaviour with the teenager. He notes his actions may have been blurred by his enthusiasm/caring energy.
- [56]He submits he should have a blue card as he has no convictions. He concludes that Dr AK has commented on his increasing levels of insight over time and being better placed to avoid interpersonal conflict.
Submissions of the Agency
- [57]The Agency refers me to the Maher matter in the Queensland Court of Appeal.
- [58]In Commissioner for Children and Young People and Child Guardian v Maher & Anor,[1] the Court of Appeal endorsed the approach of identifying and balancing the relevant ‘risk’ and ‘protective’ factors arising from the circumstances of a particular case. The Agency submitted that the weight to be applied to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.
- [59]The Agency noted that the material before the Tribunal suggests the following protective factors exist in relation to this case:
- The applicant recognised that domestic violence is ‘something to avoid’.
- The applicant has taken action to address his propensity to respond violently to situations of conflict by seeking regular assistance from doctors and counsellors.
- The applicant identified multiple cognitive strategies he employs to assist him in appropriately responding to situations of conflict.
- The applicant’s psychiatrist, Dr AK made the following positive statements in his report:
Dr AK noted positive changes in the Applicant in the eight years he had been treating him. He noted he has “slowly developed increased levels of insight in his behavioural disturbances”, and noted he is “less quick to anger, less verbally impulsive and generally does not display reckless behaviour”.
Dr AK stated “Overall I am satisfied that HT understands what is appropriate behaviour around children and is generally able to exhibit such behaviour”.
- [60]The Agency noted the following risk factors:
- The applicant has engaged in two recent incidents of domestic violence including a prolonged attack against the aggrieved person. The applicant’s behaviour was highly aggressive, threatening and demonstrated a disproportional response in the context of the argument.
- The applicant appeared to accept that his actions in acting violently toward the aggrieved person were wrong, however he did not exhibit any level of remorse for his actions and did not express insight into the impact of his actions on the aggrieved person. The Agency submitted the applicant had a tendency to justify his actions and attribute blame for the instances of domestic violence to the aggrieved person, pointing to instances of perceived manipulation and inflammatory behaviour on that persons part as the reason for his violent reaction.
- The applicant’s inability to see that nonviolent options were available to him, even in hindsight.
- The Agency submitted that the recency of the incidents of domestic violence is a risk factor as it suggests the applicant has not yet developed sufficient insight into his behaviour and its impact on others. It is significant to note the applicant is still subject to a domestic violence protection order which remains in place until July 2015.
- The applicant’s oral and written evidence in relation to the complaint information regarding his behaviour as a volunteer at the Night Café, reflect a general lack of insight into the inappropriateness of his behaviour and a tendency to justify his actions. While he was able to articulate that in future he would not step outside of the boundaries of organisational rules in place for the protection of children without written approval, he was unable to recognise the negative impact of his behaviour on the complainant child.
- The written evidence provided by Dr AK, psychiatrist, raises significant concerns and the respondent submits that as a whole this report reflects adversely on the applicant’s eligibility to hold a blue card. Notably, when asked to state the extent to which the applicant has insight into the impact of his behaviour on children, Dr AK concluded the applicant has only ‘partial insight into the effects of his behaviour’. Dr AK expressed his belief that the applicant ‘would have difficulty maintaining personal boundaries and may not understand the ramifications of discussing such issues outside the constraints of a professional therapeutic relationship’.
- [61]The Agency submitted that the importance of having appropriately developed insight into harmful behaviour cannot be overstated in an assessment where a history of negative behaviour exists. This was recognised by the former Children Services Tribunal in the published decision of Re TAA.[2] At [97] the Tribunal stated:
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 dependant on the adults around them having insight into their actions and the likely effect on children.
- [62]The Agency pointed out that the Tribunal must consider the transferability and unconditional nature of a blue card. That is, a person with a blue card can work in any area of child related employment.
- [63]In conclusion, the Agency submitted that the risk factors identified raise significant concerns regarding HT’s ability to manage his anger, make sound decisions, maintain appropriate boundaries and ultimately safeguard the best interests of children.
- [64]The Agency submitted that HT’s is an exceptional case such that it would not be in the best interests of children for him to be issued with a positive notice and blue card.
The view of the Tribunal
- [65]I agree with the submissions of the Agency. I am satisfied on the balance of probabilities and bearing in mind the gravity of the consequences involved that an exceptional case exists. This means I will confirm the Agency’s decision to refuse HT a positive notice and blue card.
- [66]I do so for the following reasons:
- I have considered the various matters in s 226 of the Act in determining whether an exceptional case exists. In particular I note the incident of domestic violence and the breach of the domestic violence order. I note that the charge related to the breach was discontinued.
- I have considered the circumstances surrounding HT’s sacking from volunteering at the Red Cross Night Café. I consider his behaviour, in gross breach of a policy of which he was aware and deliberately flouted, to be reprehensible with potential to cause harm to the young person concerned. I do not accept the applicant’s submission that he has done nothing wrong. It seems to me he has no appreciation of the potential harm that could have occurred to the teenager as a result of his unwanted attention, despite his best intentions.
- I note the conclusions of Dr AK and cannot be satisfied HT has the necessary skills to appreciate personal boundaries, not to misinterpret aspects of interpersonal relationships. I am also concerned about Dr AK’s comment about HT’s continuing impaired levels of social judgment. My concerns are heightened in view of the Red Cross experience.
- The risk factors in this case are:
- Two incidents of domestic violence (DV), including one highly aggressive and threatening incident.
- An inability to articulate options other than DV to solve the problem with the aggrieved person.
- Limited insight into his behaviour and its impact on others.
- His disregard for child protection policies when volunteering at the Night Café.
- His difficulties with social judgment and misinterpreting relationships.
- His inability to understand and acknowledge boundaries.
- The protective factors are:
- I consider the risk factors outweigh the protective factors.