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MRQ v Chief Executive Officer, Public Safety Business Agency QCAT 13
MRQ v Chief Executive Officer, Public Safety Business Agency  QCAT 13
Chief Executive Officer, Public Safety Business Agency
20 November 2015
13 January 2016
CHILDREN'S MATTER – BLUE CARD – where applicant received a negative notice – where applicant has charges and convictions for numerous offences for a period of 27 years – where applicant’s offences include domestic violence and breach of orders – where applicant had abused alcohol – where applicant has sought therapy for past childhood traumas – where applicant sought family court orders to protect daughters from sexual abuse – where applicant no longer drinks and receives ongoing professional assistance – whether case is exceptional
Child Protection Act 1999 (Qld), s 9
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6 s 221, s 226, s 360
Commission for Children and Young People and Child Guardian v Maher & Anor  QCA 492
MRQ represented himself
The Public Safety Business Agency represented by Ms Taylor
REASONS FOR DECISION
- MRQ is 56 years old and lives in South-East Queensland. He is a carer for his two children who live with him. He applied for a Blue Card to work as a volunteer with Surf Lifesaving Queensland. MRQ was issued with a negative notice which means he did not receive his blue card. The agency responsible for issuing Blue Cards is the Public Safety Business Agency (‘PSBA’).
- In considering his application the PSBA took into account MRQ’s criminal history which includes offences from 1983 to 2010, a period of some 27 years. Most of these offences involved assaults and breaches of domestic violence orders. These will be described in more detail later.
- None of his charges or convictions are for a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Because of this he is entitled to a receive a blue card unless his case is an exceptional one, such that it would not be in the best interests of children for him to have a positive notice and blue card. The PSBA found that MRQ’s case was an exceptional one.
- 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 Act, which outlines what I have to consider in deciding if an exceptional case exists.
- 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.
- Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
- 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.
- 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.
- Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
- Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
- In order to issue a positive notice to MRQ I need to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case does not exist.
MRQ’s criminal history
- MRQ’s criminal history commenced on 17 February 1983 just before his 24th birthday. The last entry on his criminal history is 17 November 2010 when he was 51 years of age. MRQ’s offences have occurred principally in New South Wales with some charges and convictions in South Australia.
- The offences include drink driving, assault, malicious injury, resisting police, breaches of bail, and contravention of domestic violence orders. The majority of his offending relates to assault including common assault, assault occasioning actual or bodily harm and malicious injury. MRQ has assaulted his friends and his female partner on multiple occasions including in front of his children. MRQ has been sentenced to twelve months imprisonment on three occasions.
Why MRQ says he should have a blue card
- MRQ provided a life story to the Tribunal which indicated he had an extremely compromised childhood. He was in the care of the state in Western Australia from 13 years of age.
- He reported having little education after primary school, no parental guidance, little parental contact, dislocation from his siblings living in multiple homes and homelessness. He reports little structure and guidance in his life.
- He reported having numerous jobs and suffering post-traumatic stress disorder following a serious workplace injury in 1993.
- He advised of a volatile marriage in which there was domestic violence perpetrated by both him and his wife. He denied his two children were exposed to this.
- MRQ acknowledged that up until about the age of 45 his life was completely dysfunctional. He reported a marriage out of control, but noted that he did not want his children to suffer as he had done. He acknowledged that he is regretful about his criminal history, in particular, those offences where he caused harm to others. He acknowledges that others would have been hurt by his actions and he regrets this. He stated that up until this time he had no personal self-control and no strategies to cope. He reports feeling terrible about the past and wants to be a better person.
- He stated that most of his criminal activity was associated with alcohol and when he decided to stop drinking, he had an occasional drink for one and half years, and has now been totally abstinent for some three and a half years. He advised the Tribunal that after considerable litigation in the Family Court he was successful in obtaining custody for his now nine and ten year old daughters. He stated that he now leads an exemplary life.
- He indicated that he has undergone extensive therapy and counselling, firstly with Chris Symons, whom he met after his serious workplace accident. He advised he also has been seeing a psychologist, David Nowland, for some time. He indicated that he has additional sessions booked for further counselling, and had arranged counselling for his children. He referred to a limited support network, including friends within the Catholic Church, and friends from doing voluntary work for the Police Citizens Youth Club.
- MRQ indicated that he is better now than he has ever been, and that he wants to make his children’s future where he now resides. He stated that he uses meditation and music, and uses the mindfulness training that he has been given in therapy to manage his stress. He acknowledged that alcohol used to be a trigger for his violence. He stated he has a much better life now, although he still has a sense of deep regret about his past. He acknowledged that he had been a perpetrator in domestic violence on three occasions, but said that his children didn’t see this although they were in or around the house. He did acknowledge that domestic violence did have an effect on the children.
- He made submissions that he had acted protectively in relation to his two daughters and was vindicated regarding his allegations about their suffering sexual abuse when the Family Court decided in his favour granting him full custody.
- David Nowland, a psychologist, provided a detailed report opining that MRQ does not have any mental health diagnosis and presents as a decent person and good parent. He concluded that he did not see MRQ as a risk to children due to his presentation and the results on a personality assessment inventory. This indicated that he was symptom free and in complete contrast to the person he was when he committed the criminal offences.
- MRQ had attended four counselling sessions and completed two psychometric tests as part of Mr Nowland’s involvement with him. Mr Nowland reported that during the counselling sessions MRQ presented as depressed and anxious, and displayed stress in relation to not obtaining his blue card. At a following assessment, Mr Nowland reported that MRQ does not meet the diagnostic criteria for any mental disorders and that while he is troubled about his traumatic past to a degree, and has a history of anti-social behaviour, this appears to be behind him.
- Mr Nowland reported that MRQ:
…genuinely and empathically understands the vulnerability of children and understands that violence is not something that is acceptable and it does have a negative impact emotionally and psychologically. As a former ward of the state, he is acutely aware that every child deserves to be treated with kindness and respect and has the right to live and grow in an environment that is safe.
- Mr Nowland considered there were two main risk factors for MRQ, his traumatic past and his abuse of alcohol. His opinion is that following therapy he has resolved most of his trauma issues and is managing this at present. He believes he has his drinking problem under control, having self-reported abstinence for the past three and a half years. Mr Nowland also reported he has a history of seeking help if required.
- Mr Nowland advised that, in his opinion, therapy provided to him in the past by Mr Symons had been successful such that MRQ was able to make changes such that the earlier trauma no longer impacted on his life. He reported MRQ as being focused on the present, determined to do the best for his daughters, and that he has made a choice to be a protective father. Mr Nowland acknowledged that MRQ had been out of control in the past with his drinking, not being involved in therapy and his not being believed regarding allegations over the abuse of his daughters.
- He reported that MRQ may not be able to deal with volatile situations, although did not consider this to be a huge deficit. He considered that MRQ had good insight into the impact of domestic violence on children. He said that MRQ had been very frank regarding his offending, did not make excuses and accepted responsibility.
- Chris Symons is a psychologist who had seen MRQ following his workplace accident. He has known MRQ since 1987. He has not seen MRQ since 2010, although he said he may have seen him in 2012. He is in regular email contact and occasional phone contact. Mr Symons indicated that he had given MRQ therapy in 2010 as a result of a series of family crises, and his attempt to secure the welfare of his children.
- Mr Symons reported that despite MRQ’s constant efforts to present evidence regarding sexual abuse of his children to relevant authorities, his efforts appeared to have been to no avail. During this time Mr Symons spent many therapy hours with MRQ face to face, and via the internet, helping him deal with the situation. He reported that MRQ had responded well to his therapy whilst previously struggling to handle his emotions and to manage his anger. Subsequently he assisted him to adopt meditation and mindfulness training, and helped him address the hurt in his life taking on board concepts to change.
- Mr Symons noted that MRQ had been very calm when the matters were before the Family Court, and during the time when his pleas were being ignored by the authorities. He noted that MRQ had remained calm at critical points, and now life doesn’t have those intense pressures on him. He considers that there is only a remote chance to any relapse to previous behaviours. He described the considerable amount of work done in relation to MRQ’s feelings of abandonment and rejection. He said his relationship now with MRQ is now one of advisor, confidant and mentor.
- Mr Symons is confident that MRQ will stay stable and make contact with him if problems arise. The therapy had centred around how MRQ dealt with authority, how he perceived he was treated, how to judge misperceptions in a more rational way, how to change his reaction to different circumstances, and how he could consider feelings apart from an initial reaction.
- Both psychologists were positive in their reporting about MRQ’s changed behaviours and the protective factors that he now has in place.
- MRQ submitted that material provided by the New South Wales Department of Community Services outlined his pleas regarding the abuse of his children in the care of their mother, and allegations to the child protection agency that his children were not safe with her. He also submitted that he was not the sole perpetrator of domestic violence, in that his wife also assaulted him. He also submitted that he arranged counselling for his children and that he has arranged for further therapy sessions for them.
- He noted that he has ceased the use of alcohol and tobacco since 2013. He acknowledges how it adversely affected him and that he now chooses not to use it at all. He submitted that he has had no contact with the criminal justice system since 2009, and all the reports available to the Tribunal suggest he has done all he can to lead a normal life with his children over the past five years.
- He argued that having the children in his care is a major protective factor as are the meditation practices.
The view of the Public Safety Business Agency
- When the Agency considered MRQ’s application for a blue card, it was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued.
- The Agency noted MRQ’s extensive criminal history including assaults occasioning bodily harm, contravening an apprehended violence order, common assault, resisting police, failure to leave licensed premises, assaulting police, driving with excess blood alcohol, stalking and destruction of property. The Agency noted the various submissions made by MRQ, both orally and in writing, and letters prepared by Chris Symons a registered psychologist.
- The Agency noted that MRQ had multiple convictions for offences involving personal violence, domestic violence and anti-social behaviour committed between 1984 and 2009. The Agency noted that if the Applicant was issued with a positive notice and blue card, he would be expected to behave in a manner that protects and promotes a child’s safety, physical and psychological wellbeing. The Agency further notes that positive role models are particularly important for children as violence and anti-social behaviour affects a child’s perception of what is appropriate behaviour in the community.
- The Agency argued that the Applicant’s offending as a whole strongly suggests he would not present as an appropriate role model if he has not sufficiently addressed his violent offending triggers. The Agency also considered that the majority of MRQ’s offending occurred in his mature years and that the police material reflected the Applicant’s children may have been exposed either directly, or indirectly, to acts of domestic violence perpetrated by the Applicant between 2005 and 2009.
- The information before the Agency suggested that the Applicant has lacked the ability to manage his aggression and has a propensity to react violently to situations of conflict, even when children are present. This, it argued, is of direct relevance to his eligibility to work with children, because it indicates he may not have conflict resolution skills, anger management skills, or the ability to deal appropriately with challenging situations.
- The Agency also considered that at the time of its decision, the Applicant had not articulated what specific strategies he may now use or how he may now deal with situations of conflict, and that it was unclear as to how long he has abstained from alcohol. The Agency concluded it cannot be satisfied that the Applicant acknowledges and understands the seriousness of his offending behaviours, or that he understands the circumstances or triggers that lead to his offending and has sufficiently addressed them to avoid a reoccurrence of similar offending behaviours. Further, without references it is unable to gain any independent insight into the Applicant’s interaction with children which could be relied on to mitigate the risk factors.
- Prior to the hearing the Agency had requested the Department of Family and Community Services in New South Wales provide certain documents to the Tribunal, the Applicant and the Agency. These documents related to the involvement of MRQ and his family with the Department in New South Wales. These documents were provided to the Tribunal, however the Agency did not receive a copy. The Tribunal provided a copy of the documents to the Agency at the hearing. MRQ had previously been supplied with a copy.
- As a result, the Tribunal decided to ask the parties to provide written submissions on the evidence presented at the hearing, as well as the documents from the New South Wales Department.
- In relation to the material from New South Wales, the Agency notes that it makes numerous references to the Applicant’s children being exposed to domestic violence between the Applicant and his ex-wife, both parties perpetrating the violence. The material includes records of interviews conducted by departmental officers with the Applicant, where MRQ spoke of violence and aggressive behaviour directed towards him by his ex-wife which the children were exposed to. There is also correspondence in the material from MRQ which refers to physical and emotional abuse directed towards him in the presence of children.
- In the material the Department raises the concern that ‘the parents may not comprehend the negative impact exposure to DV may have on children’s psychological wellbeing’. The Agency submits that the material from the Department raises concerns about the veracity of MRQ’s submissions that the children were not exposed to domestic violence, and in turn reflects poorly on his willingness to accept responsibility for his actions and fully comprehend the harm caused to his children as a result of their exposure to domestic violence.
- The Agency noted that there was a range of protective factors that exist for MRQ. These include:
- His functioning as a single parent, and establishing a stable living environment for both himself and his children despite his prejudicial childhood;
- His demonstrating a high level of insight into the impact of his childhood and the protracted instability in his life;
- His commitment to his two daughter’s including providing them with stability, guidance and emotional support that his own upbringing lacked;
- His commitment to removing his children from an environment in which they were being abused and his assisting his children to receive counselling to help them deal with this;
- A positive level of insight into the negative effect that alcohol was having on his life and his reported ceasing consumption three and a half years ago;
- His improved physical health through weight loss, smoking and alcohol cessation, and the use of stress management techniques since 2010;
- A history of seeking professional assistance for himself and his children;
- His maintaining a harmonious relationship with his ex-wife for the benefit of their children; and
- The reports from two psychologists that MRQ is not a risk to children and presents with stable mental health.
- There are however a number of risk factors submitted by the Agency. These include:
- MRQ’s protracted period of offending over 26 years, with most of the offending and alleged offending involving the use of violence, both verbal and physical, often within a domestic situation;
- MRQ’s assertion that his children were not present when the domestic violence occurred contrary to relevant reports;
- Physical assaults on his ex-wife;
- MRQ’s minimising his culpability in the domestic violence incidents and deferring blame to his ex-wife;
- MRQ’s lack of insight into the impact of domestic violence on the children;
- The presence of apprehended violence orders not detering the Applicant from committing further offences; and
- The Applicant’s past abuse of alcohol.
- The Agency submitted that I should consider Mr Nowland’s evidence in the context of his having no previous experience in preparing reports addressing a person’s suitability to deal with children. The Agency also outlined a number of inconsistencies and discrepancies in the report of Mr Nowland which it says raises significant questions about the observations and conclusions. In this regard the Agency refers to Mr Nowland’s statements regarding whether MRQ was depressed, was experiencing distress, his motivation for seeking treatment, his resolution or otherwise of trauma and his support networks. The Agency submits that I should put limited weight on the conclusions provided by Mr Nowland.
- In relation to the evidence of Mr Symons, the Agency submitted that his evidence lacks objectivity as he has been MRQ’s treating psychologist over a period of time, and the relationship suggests that their affiliation has extended beyond the boundaries of a normal client / psychologist relationship.
- The Agency submitted that the risk factors identified in the written and oral material before the Tribunal raised concerns regarding the Applicant’s ability to demonstrate stable and appropriate role modelling to children, particularly when faced with conflict.
- The Agency seeks the Tribunal make an order confirming the decision of the Agency on the basis that MRQ’s case is an exceptional case such that it would not be in the best interests of children and young people for him to be issued with a positive notice and blue card at this time.
- The Agency also requested the Tribunal to consider making an order under s 66 of the QCAT Act to prohibit publication of information that may enable a person affected by the proceedings to be identified. The Agency submitted that it would be appropriate for the Tribunal to make an order prohibiting the publication of the names of all children identified in the written material and all other identifying particulars that could reasonably lead to the identification of children.
The Tribunal’s view
- What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the objects and intention of the Act.
- That is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing.
- There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
- Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events, unusual, special or uncommon.
- This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary.
- In other words there needs to be a real difference from the usual type of cases. It cannot be one which is regularly encountered. Above all, however, the term exceptional case must be considered in the context of the legislation.
- I have to consider the exceptionality of this case in relation to harming the best interests of children. What does harming the best interests of children mean?
- The Child Protection Act 1999 (Qld) can provide some guidance in this matter. The definition of harm in s 9 is as follows:
9 What is harm
- (1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
- (2)It is immaterial how the harm is caused.
- (3)Harm can be caused by—
- (a)physical, psychological or emotional abuse or neglect; or
- (b)sexual abuse or exploitation.
- (4)Harm can be caused by—
- (a)a single act, omission or circumstance; or
- (b)a series or combination of acts, omissions or circumstances.
- What does best interest mean? It is obvious that childrens’ best interests are met if they are not subject to any harm including physical, psychological or emotional harm. Their best interests are also served by them being in a safe environment and having appropriate role models.
- Best interests of children are also served by them having access to age appropriate education, proper health care, not being subject to or witness to illegal activities including violence and the use of drugs. It also includes encouragement to develop positive relationships with others, assistance in developing a positive self-esteem and establishing positive attachment between a child and suitable adults.
- In deciding whether this is an exceptional case I need to take into account s 226 of the Working with Children Act. I have noted MRQ’s criminal history which includes both charges and convictions. The criminal history does him no credit. The offences were committed at a time when he says he was under the influence of alcohol.
- I accept that his behaviour was inappropriate and that it is of relevance to child related employment. I do not accept his assertions that the children were not present when the domestic violence occurred. The information supplied by the Department of Community Services and from the police briefs indicate that the children were either in the immediate vicinity of the domestic violence, or in close proximity to it.
- Even though the children may not have been present on every occasion, the children would have seen the injuries suffered by the parties as a result of the assaults and would have seen the distress of the parents, both victim and perpetrator. I am satisfied that both parents were perpetrators and both parents were victims. I am of the view that this would have had an extremely negative impact on the children. This and his other criminality does not constitute the behaviour of a person who would be regarded as an appropriate role model for children.
- Whilst MRQ indicated that the children were not present during incidents of domestic violence, he nevertheless gave evidence that the domestic violence would have had an effect on the children.
- I note that all of MRQ’s offences are not characterised as serious of disqualifying offences. They were, however, committed over a very lengthy period of time. In some instances the penalties imposed were minor, and in other instances terms of imprisonment were imposed.
- I will also take into account the protective and risk factors following the example in the Commissioner for Children and Young People and Child Guardian v Maher & Anor. I accept the protective factors which are outlined in the Agency’s submissions noted above. I also accept the risk factors that the Agency has submitted.
- In addition to the protective factors noted by the Agency, I also note the following as protective factors:
- MRQ was granted full custody of his children by the Family Court;
- He has not offended for the past five years.
- I do not fully accept the Agency’s view that MRQ doesn’t accept responsibility for his actions. He has indicated remorse for what he has done in his offending. I do not accept that he does not fully comprehend the harm to children because of domestic violence. MRQ indicated in his oral evidence that the children have suffered harm, and that he is fully protective of them.
- Indeed, he acted protectively towards them to the extent that he could, in a volatile relationship. He was especially protective towards them in relation to concerns regarding sexual abuse.
- Whilst the passage of time is not a determinant in this matter, I am however able to take it into account. I note that there has been no reoffending for five years. I accept that MRQ may not have full insight into the impact of his behaviour on his children. I am satisfied, however, that he has developed sufficient insight into his behaviours and the impact on others, and that he has adequate strategies to respond to stress, as well as to deal with his past traumas. I am satisfied that he will seek assistance if he considers he requires it.
- I will now deal with the submissions made by the Agency in relation to the psychologists’ reports. In relation to the issue regarding depression, Mr Nowland in his oral evidence advised that MRQ did not have clinical depression. It would appear from Mr Nowland’s comments on page 2 of his report that whilst not clinically depressed he was saddened about not being able to obtain a blue card.
- In relation to the issue of distress, Mr Nowland stated that during counselling sessions at times he displayed signs of distress. This, in my view, is not inconsistent necessarily with the test results indicating a normal level of stress, and being symptom free. Being symptom free in this context, is not in my view, inconsistent with a person not experiencing marked distress but occasionally displaying signs of stress.
- In relation to the comments regarding motivation for treatment, I accept that there does appear to be a difference between the oral evidence and the test result. However, I accept the oral evidence that MRQ will seek help and support when he considers it necessary. I see no inconsistency in the statement that currently MRQ is troubled about his traumatic past to a degree, with ‘I think he has resolved most of his traumatic issues’. Whilst it is possible to remain troubled about his past to a degree, it is also possible to have resolved most of the trauma issues.
- I accept that there is an inconsistency in relation to the comments by Mr Nowland about the social support system. It is clear from the evidence that MRQ’s social support system is still being developed and that he has a relatively small circle of friends and support where he now resides.
- In relation to Mr Symons evidence, he was MRQ’s treating psychologist certainly for some time. It appears to me, however, that this professional relationship ended in 2010 and that Mr Symons has been providing social supports and other advice to MRQ since that time. I am entitled to consider the reports he wrote in 2010. I am also entitled to consider his oral evidence, although I will not consider this as expert evidence in relation to his knowledge of MRQ since 2010.
- I have formed the view that MRQ has brought about a remarkable change in his life. He had an extremely compromised childhood, which subsequently in adulthood was reflected in anti-social behaviour and a long history of criminality.
- He has sought assistance for his past trauma and his anti-social behaviours. The majority of his offending involved the use of alcohol. He has decided to totally abstain from alcohol for the past three and a half years, and has taken a very responsible approach to parenting of, and role modelling for his two young daughters. He has turned away from anti-social behaviour and uses a variety of strategies taught to him by his psychologist to deal with stress and past trauma. I do not consider MRQ to be a risk to children. To the contrary, given his past trauma as a child, the struggles that he has had in protecting his own children, the therapy he has engaged in and his abstinence from alcohol, strongly suggest to me that he would be a great protector of children.
- In all the circumstances, I find that MRQ’s case is not an exceptional one, such that it would harm the best interests of children for him to have a positive notice and blue card. I will therefore set aside the Agency’s decision and order that MRQ be issued with a positive notice and blue card.
- I accept the Agency’s submissions that this is a matter which warrants an order prohibiting publication of information that could identify the Applicant’s children. There would be no public interest served by the identification of these persons, nor is it in the interests of justice that the children be identified. I order that the publication of information that may identify the Applicant and his children is prohibited.
- Published Case Name:
MRQ v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
MRQ v Chief Executive Officer, Public Safety Business Agency
 QCAT 13
13 Jan 2016