NQ v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 171
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- Unreported Judgment
- NQ v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 171
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NQ v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 171
NQ v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 171
CITATION: | NQ v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 171 |
PARTIES: | NQ Applicant v Chief Executive Officer, Public Safety Business Agency Respondent |
APPLICATION NUMBER: | CML 266-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 3 March 2016 |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston |
DELIVERED ON: | 13 May 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Public Safety Business Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where there is a change in the applicant’s criminal history. NON-PUBLICATION – where interests of justice to withhold names of children from publication. Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 261, 266 Queensland Civil and Administrative Tribunal 2009 (Qld) s 66 |
APPEARANCES:
APPLICANT: | NQ |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency |
REPRESENTATIVES:
APPLICANT: | Jackson Mallory Aboriginal and Torres Strait Legal Service |
RESPONDENT: | Kylie Heath, Legal Officer |
REASONS FOR DECISION
Background
- [1]The Applicant, NQ, has previously held a blue card for approximately five years, having first been issued with a blue card in 2010.
- [2]On 22 February 2015, the Respondent was advised by the Queensland Police Service of a change to the Applicant’s criminal history.
- [3]The Applicant was invited by the Respondent to make submissions to support his eligibility to continue holding a positive notice and blue card.
- [4]On 3 September 2015, the Applicant was issued with a notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Applicant was provided with a written notice outlining the decision, the reasons for the decision and the relevant review information.
- [5]The Applicant lodged an application to review the Respondent’s decision that the Applicant’s case was an ‘exceptional case’ in which would not be in the best interests of children for the Applicant to be issued with a positive notice and blue card.
NQ
- [6]The Applicant currently lives with his wife, FN, and their two sons, aged 13 and 24. Over the past 25 years, they have split up and reconciled on several occasions.
- [7]The Applicant was working as a Grounds Person at a Christian College when the negative notice was issued.
- [8]The Applicant stated that he attended rehabilitation 15 years ago.
- [9]The Applicant was charged with the offence of ‘wilful damage’ in 2005. The Applicant stated that he could hear music two blocks away. He attended the residence of his partner where he applied pressure to a glass window, which broke. He was shocked and the children in the residence would have been alarmed. The Applicant says that the incident was accidental. The Applicant says that he went away and reported the incident to the Police. He was convicted and fined $400 and ordered to pay restitution of $922.30.
- [10]The Applicant in relation to the ‘contravention of the Domestic Violence Order’ in 2015 was vague about receiving the Order. The Applicant remembers a dispute prior to the breach and being taken to the Police Station. In relation to the breach, he had been drinking when an altercation had taken place and his partner had rung the Police. When the Police arrived, he told FN words to the effect “you are fucked” at which time he was arrested and taken away to the Police Station. He was fine $200 for this offence and no conviction recorded.
- [11]The Applicant said that he drinks about 5 to 6 glasses of wine four days a week. The Applicant stated that this was his drinking pattern for about the last 10 years.
- [12]The Applicant also told the Tribunal that he had stopped drinking alcohol in the last couple of months due to liver and kidney problems.
- [13]The Applicant described his strategy to manage drinking as “willpower”. The Applicant also stated that without his job he did not have money to spend on alcohol.
- [14]The Applicant told the Tribunal that he had matured as a person and that his job was important for his life.
- [15]The Applicant stated that his two months sobriety changed his whole family.
- [16]The Applicant stated that his stress management strategies included quiet solitude and timeout; working in the yard; relaxation or ringing a friend.
QE
- [17]QE has known the Applicant since 2011 when they begin working together at the Christian College.
- [18]QE has socialised with Applicant. He stated that one to two days a week they would go to Applicant’s place for a couple of beers. He continues to visit the Applicant at home on a regular basis.
- [19]QE has witnessed the Applicant interacting with children both at work and at home. He told the Tribunal that there were no complaints at school and described the Applicant’s interaction with his children was that of a “great father”.
- [20]QE was aware of the Applicant’s police and domestic violence history. He has seen arguments between the Applicant and his wife. He has seen Applicant and his wife yell at each other. He has also seen the Applicant walk away lots of times.
- [21]QE told the Tribunal that he last saw the Applicant drink alcohol on Monday or Tuesday three days ago. He told the Tribunal that he last saw the Applicant intoxicated two or three weeks ago. He stated that the Applicant regularly drinks when he visits. He said that the Applicant had been drunk once a month over the last 6 to 9 months. He was of the view that the Applicant had been drinking “a little bit more than normal” over the last 6 to 9 months.
- [22]QE finished his evidence stating that he had never seen Applicant use alcohol in a way that might cause a risk of harm to children.
FN
- [23]FN told the Tribunal that before 1998 their relationship was perfect. The Applicant would take children camping and swimming and was a good father.
- [24]FN stated that she started having auditory hallucinations in 1998 and was unwell for six months before she started receiving treatment. She stated that she was unwell for a period of two years. She has been diagnosed with the mental illness schizophrenia.
- [25]FN told the Tribunal that she had done many bad things to the Applicant.
- [26]FN stated in relation to the ‘wilful damage’ that the Applicant had become upset at the party that was taking place at her residence and had slapped glass and asked what we were doing. The glass then broke. FN told the Tribunal that the Real Estate Agent had told her that the glass was not of the required thickness.
- [27]FN acknowledged that she often had arguments with the Applicant. She would get annoyed when the Applicant ignored her. In relation to the Domestic Violence Order, she told the Tribunal that she had an argument with the Applicant and had told him to leave. He would not do so, so she called the Police and the Police transported the Applicant to his mother’s place.
- [28]FN in relation to the incident of 20 February 2015 stated that she and the Applicant had a verbal argument. She called the Police and told them that the Applicant was threatening her and their children. She told the Tribunal that she felt “guilty about the whole situation and tried to withdraw the statement she had made to the Police”. She acknowledged her actions were “being spiteful by calling the Police on 20 February 2015”’.
- [29]FN told the Tribunal that the Applicant would drink 3-6 glasses of wine after work and on Saturday nights have a few more. She said that he would often say that he was sick of drinking alcohol and would have a break for a few days. She stated that the strategy, which he uses to deal with drinking, is a “strong mind”. If he needs a break then he just stops. She said that he does not often get drunk but that he gets “tipsy”.
- [30]FN told the Tribunal that they had gone to counselling last year and this had a major impact on the relationship. They are talking really well this time.
Respondent’s submissions
- [31]The Applicant’s criminal history contains convictions for offences of ‘contravention of domestic violence order’, ‘wilful damage’, ‘supplying a dangerous drug’. The most recent offence is the ‘contravention of domestic violence order’ committed on 20 February 2015. The remaining offences were committed in 2005 and 1989 respectively. On 16 September 2004 the Applicant was resentenced to 2 months imprisonment suspended for 18 months. A conviction was recorded. His Driver’s licence was suspended for a period of 15 months. The Applicant was originally sentenced to a probation order on 20 October 2000 in relation to the charge ‘Drive BAC’. The Applicant breached the suspended sentence when he committed the ‘wilful damage’ offence on 16 February 2005.
- [32]On 27 March 2015, the Applicant pleaded guilty to the ‘contravention of domestic violence order’. He was fined $200. No conviction was recorded.
- [33]The Applicant was subject to a Domestic Violence Protection Order, which was issued on 1 December 2014 and is current until 30 November 2016. At approximately 9:10 on 20 February 2015, Police attended an address in relation to a disturbance. Upon arrival, Police were greeted by the complainant in the front yard of the address. The complainant appeared anxious at the time and informed police that she was scared of the Applicant as he had been consuming alcohol and had become violent and threatening towards her and her children throughout the course of the day and evening. The complainant further stated the Applicant had made threats to kill her and her children during this time. She requested police remove the Applicant from the address due to her fear of him in his state of inebriation and concerns regarding his past history.
- [34]Police subsequently had a conversation with the Applicant in the front yard area of the address. The Applicant, who was moderately intoxicated at this time, displayed anger in his voice and words used while talking to the Police however did not show signs of being physically aggressive. In the presence of police, the Applicant stated to the complainant ‘you are fucked now; I am going to get you for this”. Police then arrested the Applicant and transported him to the watchhouse.
- [35]Accompanying his application for review, the Applicant filed with the Tribunal an email exchange date 15 and 16 March 2015 between his solicitor, Mr Richard Whitla of the Aboriginal and Torres Strait Legal Service and Sgt John Moran, Police Prosecutor. The email exchange sets out the facts as set out in paragraph 21(v) of these submissions which were to be substituted with the following agreed facts at the sentencing hearing:
‘Upon arrival police were greeted by the informant on the front yard area of the said address. The informant appeared anxious at the time and informed police she was scared of the defendant as he had been consuming alcohol. The informant requested police to remove the defendant from the address due to her fear of him in his then current state of inebriation and concerns re past history’.
- [36]The Tribunal issued a Notice to Produce to the Department of Communities, Child Safety and Disability Services (“the Department”) and a significant amount of material was received in February 2016. On 24 February 2016, the Respondent received a copy of the material. The material covers the period 2005 to 2015. The Respondent acknowledged that much of the material centres on the Applicant’s partner’s mental health issues and alcohol and inadequate supervision, and ability to manage the behaviours of one of the children in particular. However, some of the material raises concerns regarding the Applicant’s ability to moderate his alcohol use and behaviour in the home, to ensure children in his care are not directly or indirectly exposed to domestic violence and to provide appropriate supervision to children in his care. The material also raises concerns as to the Applicant’s potential ability to supervise and protect one of his children from an incident of prior sexual abuse by another child in the neighbourhood.
- [37]The Respondent notes pages 1 and 2 of the Department material contains a notification created on 22 July 2005 which states ‘father had smashed out the front window of the family home… parents intoxicated, inadequate supervision’. The Respondent notes that on page 190, paragraphs 2 and 3, of the Departmental material, created on 26 June 2014, reads ‘However there is no current evidence to indicate that the children have suffered harm as a result of this. It is evident that both FN and NQ have a significant history of chronic alcohol use, which increases in periods of stress’. It is also noted that page 191, paragraph 2, of the material reads ‘It is concerning that [R] appears to have begun to utilise his parents’ stress management alcohol to cope with stress’. The Respondent further notes that on page 197 of material it refers to a concern received by the Department on 11 November 2015. The concern states that the Applicant’s son was ‘bullied at home by his father, NQl. This bullying behaviour can stem from quite mild situations through to fairly significant verbal abuse... An argument erupted and NQ ended up holding [H] up by his neck. NQ is currently not working and consuming large amounts of alcohol’. The Respondent further notes that on page 227 of the material refers to a notification received on 25 November 2015. The notified concern involves “extended family and parent NQ consuming alcohol with [the Applicant’s 12-year-old son] under the influence of marijuana”.
- [38]The Respondent notes that the evidence before the Tribunal suggests following protective factors may exist in relation to this case:
The Applicant was convicted of the offences of ‘supplying a dangerous drug’ and ‘possession of a dangerous drug’ in 1989. It is noted that the Applicant has not been convicted of further drug related offences since this time. The material as a whole does not suggest an ongoing involvement with dangerous drugs since being dealt with for these offences. This suggests the Applicant may have developed some insight into the seriousness of drug offending.
The Applicant provided a written reference dated 6 May 2015 from QE to Blue Card Services around the time of the decision. QE supervised the Applicant at the Christian College from 2011 until the issuing of the negative notice. The reference refers to the Applicant not having had any issues with children during his work duties. QE writes: “I have never seen or heard NQ have an attitude or personal problem with any child including my family, children and grandchildren in work or social gathering in the four and a half years that I’ve known him.” The reference suggests that there are no known incidents of concern involving the Applicant and children during the course of his employment at the Christian College. This was supported by the oral evidence given by QE.
- [39]While the Respondent notes the above protective factors, the Respondent submits that the following risk factors arise from the material presently before the Tribunal, and that these risk factors outweigh the protective factors:
The material as a whole suggests Applicant has ongoing issues with alcohol misuse, from 2000 through 2016. This is reflected in the criminal history and the Departmental material, and in the oral evidence of both the Applicant and his two witnesses.
In particular, in his oral evidence, the Applicant stated that he had been sober for two months. Nonetheless, he also said he currently drinks about 5 to 6 glasses of wine four days a week. He told the Tribunal that he was last drunk around Christmas 2015. This was inconsistent with his oral evidence that he had been “off it [alcohol] for the last couple of months due to liver and kidney problems”. When asked what strategies he uses to manage his alcohol misuse the Applicant said “willpower”. He referred to undertaking rehabilitation around 2005. However, it his oral evidence, he referred to returning to alcohol use following on from the rehabilitation programme.
The Respondent notes however that QE told the Tribunal he last saw the Applicant “drunk” about 2 to 3 weeks ago. He also said the Applicant regularly drinks when he visits, and about “once a month [he has been] drunk over the last 6 to 9 months”. QE also gave evidence that it seemed to him the Applicant had increased his alcohol intake the last 6 to 9 months. He said he isn’t aware whether or not the Applicant intends to give up alcohol. QE said the Applicant was charged with drink driving as recently as 18 months ago.
Likewise, the Applicant’s wife FN, told the Tribunal that the Applicant currently drinks six to seven drinks in the afternoon. When asked about strategies he uses to manage his drinking, she referred to his “strong mind”.
The Respondent submits the Applicant’s evidence that he had been sober for the last two months, should be tempered. His evidence of this point is inconsistent with that of QE, who told the tribunal he last saw the Applicant “drunk” about 2 to 3 weeks ago. There is no evidence before the Tribunal that the Applicant has developed sufficient insight into the triggers to his alcohol misuse, or that he has strategies in place to manage the misuse.
The Respondent notes that according to the facts accepted by the Applicant at the time of his plea hearing for the ‘contravention of domestic violence order’ offence, his wife “was scared of [him] as he had been consuming alcohol” and that she “requested police to remove [him] from the address due to her fear of him in his then current state of inebriation re past history”.
It is noted the Applicant participated in the residential rehabilitation program in Townsville approximately 15 years ago. However, once removed from the largely structured, monitored environment, he again returned to heavy alcohol misuse. The Applicant is yet to demonstrate he can maintain sobriety over the longer term in the community outside of the structured environment of the rehabilitation programme. This is a significant risk factor as the Applicant’s use of alcohol has, in the past been linked to his inappropriate behaviour.
The Respondent further submits that not withstanding the Applicant’s evidence that he has no real knowledge of the making of the Domestic Violence Order, he nonetheless pleaded guilty to having contravened such an Order. The Court Brief indicates the Order was served on the Applicant and the conditions were explained to him on 3 December 2014. The Respondent further notes that the Applicant’s written submissions to the Tribunal, and those of his partner, provide a version of facts differed to the agreed facts accepted by the Applicant at the time of the sentencing hearing.
The Respondent submits that as the Applicant has been convicted of the offence of ‘contravention of Domestic Violence Order’ (and the offence of ‘wilful damage’ on 14 April 2005) cannot now, for the purposes of the review hearing, go behind the conviction. The law is well established on this issue.
The Respondent submits that an event would have occurred resulted in the making of the Domestic Violence Order against the Applicant in the first instance. This, coupled with the agreed facts for the ‘contravention of Domestic Violence Order’ offence, and the circumstances of the ‘wilful damage’ offence, raise concerns as to the Applicant’s ability to ensure the children in his care are not exposed to domestic violence either directly or indirectly.
The Applicant, in his evidence, referred to less arguments, and yelling and screaming with his wife being attributable to “no alcohol”. The Respondent submits that if the Applicant considers alcohol misuse by both himself and his wife to be main trigger to their arguing, then he has not proven to the Tribunal that that trigger is being managed such that moving forward children in his care will not be exposed to domestic violence, be it verbal or physical, and be it direct or indirect.
It is well documented that witnessing or being exposed to domestic violence has a detrimental effect on the wellbeing of children. Research shows even when children are not direct targets of violence in the home, they can be harmed by witnessing its occurrence and may suffer emotional and developmental difficulties which may be similar to those children who are direct victims of abuse. The effects on children can also extend to the children’s awareness of the aftermath of violence, such as physical injuries to family members, damaged property and involvement of police.
Applicant’s submissions
- [40]It is submitted that the Respondent has failed to identify any distinctive issue with the Applicant’s use of alcohol and whether such creates an exceptional case, such that it would be unsuitable for the Applicant to be issued with a blue card.
- [41]The Respondent states that the Applicant’s “misuse” of alcohol is reflected in his criminal history. The Applicant submits that “going behind” the Applicant’s prior convictions reveals there is no evidence that alcohol is contributed to the Applicant’s criminal history in any way.
- [42]The Applicant has explained, in evidence, the amount of alcohol he has historically consumed. The Respondent has not explained how the Applicant’s consumption of alcohol creates any risk to children. The Respondent’s submissions are void of any such explanation.
- [43]In particular, the Respondent’s submissions state at paragraph 24 (v):
There is no evidence before the Tribunal that the Applicant has developed significant insight into the triggers to his alcohol misuse…
- [44]The above submission by the Respondent cannot be accepted by the Tribunal because the Respondent has not adequately detailed past acts by the Applicant which identify actions of “misuse” nor has the Respondent suggested our any alleged “alcohol misuse” has caused risk to children.
- [45]The Respondent incorrectly refers to the following as being related to the Applicant:
The material also raises concerns as to the Applicant’s potential ability to supervise and protect one of his children from an incident of prior sexual abuse by another child in the neighbourhood.
- [46]The Applicant submits that it is unfortunate that the Respondent has raised this in submissions because such was never directly put to the Applicant during the hearing this matter. It is procedurally unfair for the Respondent to rely on such information without seeking an explanation of such from the Applicant during the hearing. Had the Respondent put such to the Applicant then the Applicant would have had an opportunity to explain to the Tribunal the circumstances of the matter. The instructions by the Applicant to his legal representative are that the subject child was not in the Applicant’s care at the time the above incident occurred and is therefore not culpable for the outcome.
- [47]The documentary information from the Department was presented without the opportunity to cross-examine any of the contributors to the said documents. The documents themselves are largely vague in nature, regularly inconsistent with outcomes and conclusions, and were almost wholly directed toward the Applicant’s partner, not the Applicant himself.
- [48]It is submitted that, based on the evidence of the Applicant and witness FN, the Tribunal should draw the following conclusions:
- it was not the Applicant’s intention to break the glass door;
- the Applicant would never have assumed his actions would have resulted in the breaking of the glass door;
- the Applicant immediately expressed remorse breaking the door - this is evident from his willingness to report his own conduct to the Queensland Police Service;
- the Applicant have the interests of children in mind, when attempting to protest the neglectful actions of FN towards the care of the children;
- the Applicant was not affected by alcohol.
- [49]It is submitted that, based on the evidence of the Applicant and witness FN, the Tribunal should draw the following conclusions in relation to the breach of a Domestic Violence Order 2015:
- there was no real offending by the Applicant in this matter;
- FN sought assistance from the Queensland Police Service for no purposeful reason;
- The Applicant was being harassed by FN in his own home and he engaged in strategies to de-escalate this. Notably, the Applicant physically relocated himself from FN’s proximity so as to avoid conflict;
- The trigger for FN unnecessarily seeking Queensland Police Service was the Applicant’s ongoing attempts to de-escalate the situation;
- At no stage did the Applicant threaten any person within the household;
- FN was never afraid of the Applicant nor his actions;
- FN was pressured into making a statement against the Applicant;
- FN attempted to retract her false statement against the Applicant but was refused assistance from the Queensland Police Service to do so;
- After the Queensland Police Service accepted case conferencing submissions by the Applicant’s solicitor, the facts of the charge of the matter was substantially altered;
- The Applicant plead guilty to the charge as a matter of convenience due to the likelihood of a favourable minor punishment from the presiding Magistrate.
- [50]The Applicant notes the following risk factors:
- The Applicant was convicted of possession and supply a dangerous drug in 1989 for which he received a term of imprisonment;
- The Applicant plead guilty to wilful damage for an offence in 2005 for which a conviction was recorded and a fine of $400 was issued;
- The Applicant plead guilty to a breach of Domestic Violence Order in 2015. No conviction recorded on this occasion and a fine of $200 was issued.
- [51]The Applicant notes the following protective factors:
- It is submitted that the Applicant reconciling with his long-term partner, of which they have four children together, is a protective factor;
- Despite the Applicant and his partner having some difficulties in the past, they are currently committed to, and supportive of, each other;
- The Applicant’s drug convictions are historical to the extent they are no longer reflective of his character;
- The lack of further drug convictions shows that the Applicant has become rehabilitated this area is therefore shown insight into past offending;
- The Applicant’s offending in 2005 was also non-reflective of his character. The Applicant stated in oral evidence that he was immediately remorseful of his actions and contacted the police. Had it not been for the Applicant’s own actions he may never have been charged with this offence;
- The Applicant has identified strategies to deal with stressful situations. The Applicant gave oral evidence of his strategy to disengage from conflict, particular with his partner, and to physically remove himself such situations;
- The Applicant’s above strategies are corroborated by the oral evidence of both FN and QE who both attested to the Applicant’s ability to relieve conflict by physical disengagement;
- The Applicant’s abilities to deal with stressful situations were exhibited throughout the incident leading to his breach of Domestic Violence Order. It was evident that the Applicant made considerable efforts to de-escalate a stressful conflict between him and his partner.
Discussion of the evidence
- [52]The Respondent received material from the Department. The Respondent acknowledged that much of the material centred on the Applicant’s partner’s mental health issues, alcohol, inadequate supervision, and ability to manage behaviours of the children in particular. The Tribunal would like to make it clear that this evidence is not relevant to the Applicant’s case.
- [53]The second point that the Tribunal would like to make is that the Applicant was not cross-examined about the material from the Department. An example of this was in relation to paragraph 21 (vii) of the Respondent’s submissions where the Respondent alleged that the “The material also raises concerns as to the Applicant’s potential ability to supervise and protect one of the children from an incident of prior sexual abuse by another child in the neighbourhood”. The Tribunal accepts the submission of the Applicant that this was not raised in cross-examination. The Applicant’s submission explained that the Applicant was not living with the family when this abuse took place so was not in a position to supervise child in question at the relevant time.
- [54]The Tribunal notes that the material shows “no current evidence to indicate that the children suffered harm as a result of the [of the applicant smashing the window]”.
- [55]The material evidences that both FN and NQ have a significant history of chronic alcohol abuse. This is consistent with the other evidence presented in the hearing.
- [56]The Tribunal notes the Applicant’s submissions on the material and the Tribunal’s view of the material and in the circumstances the Tribunal puts little weight on this material except where the Tribunal otherwise puts weight on the material.
- [57]The Tribunal in relation to the Applicant’s history of alcohol abuse notes that when the Applicant was working there was no suggestion that he was influenced by alcohol while at work. There were no issues of alcohol affecting his work or his relationship with children at the school.
- [58]The Respondent says that the Applicant’s ability to moderate his alcohol use and behaviour in the house to ensure children in his care are provided with appropriate supervision. The Tribunal notes in this regard QE’s evidence that the Applicant was a “great father” of the children.
- [59]FN also gave evidence that NQ was an excellent father. The Tribunal accepts the evidence of QE and FN about the Applicant’s ability to supervise and look after his children. The Departmental material shows that problems have occurred and there has been notifications. There was no suggestion however of the children being removed from the Applicant and his partner.
- [60]The Tribunal did not however accept Applicant’s evidence about stopping his alcohol use. The Tribunal notes that the Applicant gave conflicting evidence about his alcohol use. The Tribunal prefers QE’s evidence to that the Applicant was continuing to use alcohol. The Tribunal had several issues with the Applicant’s evidence.
- [61]The Tribunal in relation to convictions follows the decision of Jackson v Commission for Children and Young People[1] which was noted:
The Tribunal in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009 cannot go behind the conviction.
As previously determined by the former Queensland Children’s Services Tribunal (‘QCST’) in Re FAA the Tribunal must accept the conviction as ‘conclusive’. In Re FAA, the former QCST considered an earlier Federal Court decision of Minister for Immigration and Ethnic Affairs v Gungor.[2] The Federal Court determined that an administrative tribunal with ‘wide investigational powers’ that was not bound by the rules of evidence should review the conviction on its ‘essential factual basis’. The Federal Court at page 212 per Fox J] determined:
While it stands, the conviction must be conclusive, so far at least has concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as a starting point. While I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed.
- [62]The Tribunal is required by the legislation to look at the nature of the offence surrounding the conviction and punishment. This means that the Tribunal accepts the conviction and penalty and can look at the surrounding circumstances.
- [63]The Tribunal does not accept the Applicant’s submissions that the Tribunal can “go behind” the convictions.
What is an “exceptional case”?
- [64]The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
- [65]The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
- [66]The paramount consideration in an employment screening decision is a child entitlement to be cared for in a way that protects the child from harm and promotes child well-being.
- [67]The decision under review was whether the case is an exceptional case such that the presumption prescribed by s 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should be issued to Applicant.
- [68]In order to issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of, that an ‘exceptional case’ does not exist.
- [69]The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Agency must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Agency reasonably considers relevant to the assessment of the person.
- [70]The Tribunal must, in exercising its review function under the QCAT Act, in determining whether an ‘exceptional case’ exists, ensure that the welfare and best interests of children is its “paramount consideration”.[3]
- [71]It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to “any general rule”.[4] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher [5] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[6]
- [72]The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be.
- [73]The most recent offence is the ‘contravention of domestic violence order’ committed on 20 February 2015. The remaining offences were committed in 2005 and 1989 respectively.
- [74]The Tribunal in relation to the ‘wilful damage’ offence accepts the Applicant’s evidence that he was remorseful for his actions and had reported himself to the Police. The Tribunal accepts the evidence in the Department’s material says that the children were not hurt by his actions in relation to this event.
- [75]The Applicant was convicted and a fine of $400 required and to pay restitution of $922.30. The penalty was at the lower end of the scale for these offences.
- [76]The Tribunal in relation to the Domestic Violence Order and the ‘contravention of Domestic Violence Order’ notes that no conviction was recorded and a fine of $200 imposed. The penalty clearly at the lower end of the scale for these offences.
- [77]The Tribunal in relation to the charge of ‘supply a dangerous drug’ and ‘possession of a dangerous drug’ note the penalty was a conviction and a sentence of 2 months prison suspended for 18 months. The Tribunal considers that this was a serious offence but notes that this occurred in 1989 and that there has been no repeat of such behaviour. The Tribunal accepts the Respondent’s submission that this is a protective factor.
- [78]The Tribunal notes that there were relatively few protective factors put forward on behalf of the Applicant.
- [79]The Tribunal agrees with the Respondent that there is no evidence before the Tribunal that the Applicant has developed sufficient insight into the triggers to his alcohol misuse, or that he has strategies in place to manage the misuse.
- [80]The Tribunal agrees with the Respondent that the importance of having appropriately developed insight into harmful behaviour cannot be overstated in assessment where such a history of negative behaviour exists. This was recognised by the former Children's Services Tribunal in the published decision of Re TAA.[7] At paragraph 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 dependent upon the adults around them having insight into their actions and the likely effect on children
- [81]The Tribunal finds that the Applicant had little insight on the effect of alcohol on his relationship with his partner and his children.
- [82]The Tribunal does not accept the Applicant’s submission that alcohol had no connection with his criminal history. The consumption of alcohol is seen in has driving history and connected to his domestic violence offences. It is also connected to ongoing conflict within the relationship.
- [83]The Tribunal is of the view that there is a range of risk factors. The risk factors include:
- Consumption of alcohol;
- Conflict with in his relationship with FN as evidenced by the Domestic Violence Order;
- His own low self-confidence and subsequent vulnerability to those pressures.
- [84]The Tribunal is of the view that given the Department’s material; and the Tribunal’s view in relation to the offences of ‘wilful damage’ and ‘Domestic Violence Order’ and “contravention of the Domestic Violence Order’; that there were some risk factors. The Applicant has however have a short criminal history with his recent offences (2005 and 2015) and these were at the low range of such conduct. The Tribunal was also impressed with the evidence of QE. He gave evidence with FN that the Applicant was a “great father” for his children.
- [85]The Tribunal is of the view that consumption of alcohol should in some circumstances constitutes an ‘exceptional case’. The Tribunal is not of the view that this is the case in this matter.
- [86]There are some protective factors and there is evidence that the Applicant has been a good father.
- [87]The Tribunal was of the view that while there were some risks that they were not such in the circumstances that this was an ‘exceptional case’ in that it would not be in the best interests of children for the Applicant to be issued with a positive noticeably card.
- [88]The Applicant should however take care of his alcohol consumption because it is the Applicant’s own evidence that it is seriously affecting his health and well-being.
- [89]The Applicant and his partner allegedly received great benefit from one counselling meeting that took place. The Applicant and partner should use a number of counselling meetings is that would only help in relation to the relationship of conflicts that have taken place.
- [90]The Tribunal would obviously be concerned if the was an occurrence of any further acts of domestic violence.
- [91]The Tribunal also recommends that the Applicant should have a number of strategies to deal with alcohol consumption, as “willpower” itself was not shown to be enough.
- [92]The Tribunal for the following reasons orders that the negative notice should be set aside and a positive notice and blue card issued to the Applicant.
- [93]The Tribunal was also of the view that a non-publication order was appropriate so that identifying details of the Applicant’s children are withheld from the public. The Tribunal was satisfied that it was in the interests of justice that a non-publication order should be made so that Applicant’s children are not unnecessarily harmed by any publication of the details of this proceeding. Such an order also has the consequential effect of the Applicants’ identity being withheld from public scrutiny.
Footnotes
[1] [2014] QCAT 186.
[2] [1982] 42 ALR 209.
[3] Working with Children Risk Management and Screening Act 2000 s 8.
[4] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[5] [2004] QCA 492 at [28].
[6] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].
[7] [2006] QCST 11.