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Hart v Chief Executive Officer, Public Safety Business Agency QCAT 217
Hart v Chief Executive Officer, Public Safety Business Agency  QCAT 217
Wade Norman Hart
Chief Executive Officer, Public Safety Business Agency
27 June 2016
7 July 2016
CHILDRENS MATTERS - Blue Card – Review– where negative notice issued – where charges for assault - where charges were against a child – where child suffered an injury – where criminal matter was discharged following justice mediation agreement – where particulars of charge outweighed protective factors - where satisfied exceptional circumstances exist.
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492
Queensland Civil and Administrative Tribunal Act 2009;
Working with Children (Risk Management and Screening) Act 2000;
Child Protection Act 1999.
APPEARANCES and/or REPRESENTATIVES:
Wade Norman Hart - Self representation
Paula Hughes, Legal Officer, representing the Chief Executive Officer, Public Safety Business Agency.
REASONS FOR DECISION
- Wade Norman Hart is a 37 year-old self-employed currency fund manager. Mr Hart lives with his partner on the Sunshine Coast. They have no children. Mr Hart has, amongst swimming and surfing, a love of Soccer football.
- In January 2006 Mr Hart was charged with Assault - occasioning bodily harm. The complainant was the 12 year-old son of Mr Hart’s then girlfriend. The matter was referred to Justice Mediation and a Justice Mediation Agreement was entered into and finalised. On 28 September 2007 the Brisbane District Court Order noted a Nolle prosequi was entered and the matter Discharged.
- In 2015 Mr Hart applied for a Blue Card so that he could volunteer as a coach for his local Soccer Club. He was assigned the Under 8 year-old squad. On the 27 January 2016 the Respondent issued Mr Hart a ‘negative notice’. Mr Hart sought review of this decision with the Tribunal.
- The QCAT Act provides that the Tribunal hear review applications afresh and decide the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The Tribunal may either confirm the decision of the Chief Executive Officer, or set it aside, and substitute it with its own decision, or return it to the Chief Executive Officer with appropriate directions.
- When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. Certain offences ‘disqualify’ a person from applying and ‘serious offences’ require the Chief Executive Officer to issue a negative notice unless an exceptional case is made out.
- The law provides that Applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. Mr Hart’s application is captured by this provision.
- The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor, provided some guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case. The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.
Evidence and material considered
- In considering this matter the Tribunal relied upon Mr Hart’s oral testimony and submissions, his application, supporting documents and references to the Agency; his application, supporting documents and references to the Tribunal, and a Psychological Report prepared by Dr Leah Stuckings, Clinical Psychologist. The Tribunal also relied upon the Respondent Reasons for Decision and supporting documents, original application and supporting documents, and oral submissions.
Issue – Is Mr Hart’s an exceptional case whereby he should not be issued a ‘positive notice’?
- Firstly, in relation to the statutory considerations. Mr Hart was charged with the offence of Assault – occasioning bodily harm in January 2006. The complainant in that matter was the 12 year-old elder son of Mr Hart’s then girlfriend. On 28 September 2007 the Brisbane District Court discharged the matter when the DPP entered a Nolle Prosequi. The matter had been referred earlier to Justice Mediation and a Justice Mediation Agreement was agreed upon and the undertakings met.
- The charge, Assault - occasioning bodily harm, is not a serious offence or a disqualifying offence as prescribed by Schedules 2 - 5 of the Working with Children Act. The offence is alleged to have occurred over 10 years ago on 13 January 2006. The offence is directly relevant to the volunteer football coaching of children, as the victim to the alleged Assault offence was a 12 year-old child. At the time of the offence Mr Hart was in a relationship with the subject child’s mother, and was in a quasi position of authority and trust.
- The Tribunal received no information or reports in relation to Mr Hart as described under section 226 (2) (b) (c) or (d) of the Working with Children Act.
Circumstances of the alleged Assault
- The Agency’s reasons for decision summarised the police brief of facts in relation to the subject child’s personal and living circumstances and the charge. The subject child was the eldest of two children of the former marriage between their father and mother, Mr Hart’s girlfriend. The children, both boys, aged 12 and 10 years were subject to a shared custody order of the family court. A 3 year-old half-brother to the boys resided solely with the mother. The subject child described that on the evening of the alleged Assault, his younger brothers were dressing up in their mother’s clothes and high heels and that the youngest jumped on his back in the high heels hurting him. The subject child said when he got up Wade thought he was going to hit the younger boy and so Wade got on him getting angry and said that he thought it time that he felt what it was like to get bashed up instead of bashing up all his brothers. The subject child described Mr Hart as pushing him over onto to his back, hitting him over and over again, once in the ribs, tried to hit him in the head but missing and hitting his shoulder instead, grabbing his wrist and twisting it up, opening a cut he had from falling from his bike. He described Mr Hart as hitting hard enough to cause bruises, stating he was not mucking around and had a serious face and was trying to teach him a lesson. The subject child described his screaming and crying, bringing his other brother running to tell Wade to get off the subject child. The subject child describes when he stated that he was going to ring his Dad his mother unplugged the telephone. The subject child outlined hiding in the cupboard until his mother and Mr Hart could be distracted so that he could call his father. Mr Hart had left the home before the subject child’s father arrived.
- The Police Brief of Facts summary notes the complainant child and his brother provided statements to police on 18 January 2006, and that Mr Hart attended a police station on 16 February 2006 and declined to be formally interviewed.
- The Department of Child Safety document entitled Legacy Notification Summary, received by the Tribunal under Notice dated 1 June 2016, notes that the Department was notified on 14 January 2006 about injuries sustained to subject child by mother’s partner. The Department undertook inquiries and the two elder children were interviewed in conjunction with Police. The Department also met and spoke with their mother, father and maternal grandmother. File notes are outlined in the document. The Department notes a Medical report from Redcliffe Hospital dated 14 January 2006 as recording: Multiple areas of bruising on the child. About 1.5 cm in size. Bruise on the right subcostal region. Three bruise marks on the left shoulder, probably consistent with a handprint. Bruise about 2.5 – 3 cms on subject child’s lower leg. The Department also notes a previous hospital presentation, on 26 June 2004, with alleged assault by mother’s boyfriend.
- The Department records the boys were living with their father because they had been violent at school. The Department also records that their father reported the second son was screaming and crying in the background when he was called after the alleged Assault incident.
- The Department records the mother as describing the evening of the incident as thus: On the night of the incident ‘second son’ was playing dress up in her clothes (‘father’ disapproves of this as he is homophobic). ‘Subject child’ stated to ‘second son’ that he will grow up to be a “homo” when he is a teenager if he continues to dress up. The boys began to scuffle, which eventually became serious. During the scuffle ’the subject child’ hit ‘the youngest child’ in the stomach. Mr Hart then got up and went over to ‘the subject child’ and held him down, then he hit him on the side. Mother did not get a chance to stop Mr Hart from hitting her son, however she does not entirely disagree with what Mr Hart did to her son.
- The mother and grandmother describe the former marriage of as one characterised by domestic violence.
- The Department’s assessment of the notification was that there was substantiated physical and emotional harm to the subject child and substantiated emotional harm to the second son, with Mr Wade and the mother recorded as the persons responsible.
- Mr Wade in his personal submission to the Agency in the initial application states: The details provided by the court brief are in general correct. An important missing fact was the cause of my reaction where the 13 year old boy punched the 3 year old boy ferociously which left the 3 year old winded before he started crying. As was stated in the committal hearing the incident was witnessed by the boy and child’s mother and my reactions had her support; the boy had a history of physical violence towards his brothers; the claimed injuries caused by me were in fact a result of a bicycle accident earlier that week.
- In the application for review, part of Mr Hart’s reasons for seeking the review states the reasons for decision is based solely on an untested statement provided by the accuser. These accusations were never tested nor their factuality established in a court of law.
- At hearing Mr Hart gave oral testimony. Mr Hart outlined the personal circumstances of the relationship with the subject child’s mother, stated the 2 older boys were hostile towards him, but stated that he had an excellent relationship with the third and younger child. Mr Hart described a tense day on the day of the alleged assault, starting with him taking the children to Hungry Jacks and having to leave quickly when the subject child fought with another child. Mr Hart described the evening and the 2 younger children playing dress-ups and the younger child standing on the subject child’s back in high-heels. Mr Hart states the subject child called the younger child a ‘homo’ and then punched and winded him. Mr Hart testified his actions were an ‘instinctive moment’ whereby he pushed the subject child onto a mattress, grabbed him by the wrists and put his leg onto the subject child’s leg. Mr Hart testified he said how would you like it if someone screamed and yelled at you. He described the situation as dramatic and intense. He confirmed he left the house before the child’s father arrived.
- Mr Hart testified that there was ‘definitely no punching’ but conceded bruises on the child’s lower legs were ‘most probably caused by me’ when restraining the subject child. However Mr Hart then referred to a medical report in the committal hearing that suggested the bruises were several days old. Mr Hart did not produce any documentation in relation to this report.
- When questioned why the initial application and then review application did not contain any denial that he had struck or punched the subject child, Mr Hart testified he had provided the bare minimum as he did not have any comprehension of the law and had not educated himself about the requirements. Mr Hart opined that he naively thought because he was not convicted he would be okay and was not aware he needed to address the incident directly.
- Mr Hart testified that the Assault charge did not proceed because he reached a Justice Mediation Agreement. Mr Hart stated that he provided with the help of a lawyer, a without admission letter of Apology to the subject child, donated $1500 to a charity and undertook an at least 8 week Men’s Group Course. Mr Hart testified that the course was heavy going, uncomfortable and confrontational with a broad range of attendees who had been involved in such things as the Rwandan massacre and sexual assault. Mr Hart testified he quite enjoyed the first half of the course which covered philosophical aspects, but became a ‘less enthusiastic attendee’ once it drilled down to individuals. Mr Hart described himself feeling like a ‘fraud’ as he didn’t have the sort of issues of others. Mr Hart reflected that the course exposed him to experience the life of others and their problems, and that it showed this is what growing up can entail.
Reflections of Mr Hart, risk and protective factors
- The Tribunal has taken the approach of considering relative risks and protective factors when deciding whether a particular case is an exceptional case. The Court of Appeal in Maher and Anor accepted this approach as one way of deciding whether an exceptional case is made out.
- Mr Hart states the incident took place because the subject child hit the youngest child and winded him, and that he was protecting the younger child. Whilst protection of a young child in such circumstances is very important, and is generally a positive factor in considering whether an exceptional case is made out, Mr Hart’s ‘instinctive’ reaction was not protective. Mr Hart did not comfort the younger child or attempt to remove him from the situation. Mr Hart’s action can reasonably be described as retaliatory and punitive. He exposed the younger children to violence. Mr Hart reflected at hearing that he would now firstly comfort the younger child.
- Whilst Mr Hart’s reflections on the impact of the incident demonstrated some understanding towards the safety and protection of the younger child, Mr Hart demonstrated limited understanding of the impact of the incident on the subject child and second son, who he described as effeminate and sensitive. Mr Hart’s insight was limited for such an intelligent man. He initially responded ‘I couldn’t tell you’ because he had no further contact with the subject child and that he was ‘not a psychologist’. He testified that he did not ‘know them well enough’, but conceded his reaction could have been better, and he opined the incident would have been distressing. Whilst acknowledging the difficulties of marriage breakdown and history of family violence, Mr Hart did not articulate any understanding, compassion or protection towards the older two boys in regards to those circumstances and their behavioural issues.
- On the other hand Mr Hart clearly outlined the impact the incident had on him. He described the whole thing eye-opening and that he has come to the conclusion never to have children and never to intervene in confrontation with children or adults, and that he would leave them to their own devices. Mr Hart testified if two children at soccer were in were engaged in physical altercation he would not intervene but call on a parent to assist. Whilst it is a matter for Mr Hart to reach such a serious personal conclusion in regards to children of his own, his clearly articulated decision not to physically intervene in physical altercations concerning children, when he wishes to coach soccer to children, may not necessarily be in their best interest if an altercation becomes serious or another adult is not readily available. Intervening by way of stopping children fighting in a non-aggressive manner, for example, would be appropriate in certain circumstances, and would be protecting each child from injury and reinforce violence is not tolerated.
- Mr Hart provided a Life Story that indicated he had a stable, secure and non-violent upbringing. He has two sisters with whom he has good relations. He has a close relationship to his mother. He participated in sports, music lessons and debating. He attended a private school and then went onto University where he graduated with honours in Economics and then Commerce. He described his past relationships and starting his own business. He outlined the around six-year relationship with the mother of the subject child. Mr Hart has a secure and stable family life. He maintains friendships and regular contact with his family. Mr Hart testified he has been living with his current partner for around 2 years. Mr Hart has no other charges or convictions. These are all positive factors in relation to the Tribunal’s considerations.
- On 15 June 2016 Mr Hart undertook psychological assessment by Dr Leah Stuckings, Clinical Psychologist, and provided a report to the Tribunal for consideration. In the Report Dr Stuckings outlined the clinical interview and presenting issues. Dr Stuckings noted the history of the incident leading to the charge of Assault occasioning bodily harm and Mr Hart’s denial of having actually hit the subject child. Dr Stuckings also outlined family, personal and medical history. Dr Stuckings provided detailed Psychological Test Results. Overall Dr Stuckings opined she did not believe Mr Hart’s interaction with children would be harmful, that he acknowledged his mistake and that his high intellect is an asset to his anger management. Dr Stuckings reported Mr Hart described ‘rewards’ and ‘time out’ strategies for managing children’s behaviour. Dr Stuckings reported Mr Hart sees violence towards children as abhorrent and admitted he would never ever touch a child physically in order to restrain them. Dr Stuckings opined that it is highly unlikely Mr Hart will behave in any violent manner towards children in the future. She opined his Personality Assessment Inventory (PAI) scores indicated a person with low Aggression and Dominance traits, and high Warmth, which she advised were indicators of a low violence risk in the future. Dr Stuckings found Mr Hart’s responses to the PAI were highly valid, and likely to be clinically interpretable.
- At hearing, Dr Stuckings attended by telephone and confirmed the above results and opinion. Dr Stuckings advised that she assessed Mr Hart over a 3 and a half hour session. Dr Stuckings confirmed that she has had no ongoing contact with Mr Hart.
- Dr Stuckings provided a positive report in regard to Mr Hart and whilst conceding that she may be more cautious if the allegations were proven, Dr Stuckings opined that the final outcome in her report would probably be quite similar given the protective factors of no history of abuse, higher intelligence to manage anger and make change, and a stable job and social supports.
- Dr Stuckings opined that the trigger for the incident was the general background, that the specific day was stressful and the situation of the older child turning on the younger child. Dr Stuckings suggested that this type of scenario could trigger a response common in others. However, Dr Stuckings agreed it is not common to cause bruising, and that pinning a child down was uncommon.
- Russell Johansen a parent of one of the boys Mr Hart coached last season testified that Mr Hart had very positive interactions with the children, that he was calm while the boys were boisterous and that parents were keen to see him back coaching. Mr Johansen confirmed that he knew of the details of the charges from Mr Hart’s version of events, and whilst he understood the subject child had bruising, he testified that did not change his opinion of Mr Hart. Mr Johansen noted the incident was 10 years ago and opined that people make mistakes. Mr Johansen testified that he had seen Mr Hart interact with the kids, that Mr Hart had never raised his voice and that he encouraged fair play. Mr Johansen described Mr Hart’s strategy of offering or withholding soft drink rewards for the children’s good behaviour. Mr Johansen testified that he would leave his two young children with Mr Hart for a couple of days if ever necessary.
- James Watson, Club President, and former police officer, testified that he met Mr Hart 14 months ago when he approached the Club about coaching. Mr Hart was allocated the Under 8 year team to coach. Mr Watson confirmed Mr Hart commenced coaching before he was issued with a Blue card as he was of the understanding this was permissible whilst waiting for a result. Mr Watson testified that coaching stopped as soon as the negative notice was issued.
- Mr Watson testified that he is present at all home games and around 20 parents present. Mr Watson testified that he has never received any adverse comment about Mr Hart from either a child or parent. Mr Watson testified that parents are the first to let you know if there are any problems. Mr Watson testified that the parents had complimented Mr Hart many times. Mr Watson testified that he had never seen any anger or violence from Mr Hart and testified that he found Mr Hart pretty straightforward, with a keen intelligence and a genuine person. Mr Watson confirmed he understood the details of the alleged Assault, and stated the medical record details sounds totally different to the person he has observed. Mr Watson opined that Mr Hart’s coaching is beneficial to children as they enjoy the game and come off the field smiling.
- In summary, the Respondent’s oral submissions rely on the totality of evidence, it’s Statement of Reasons and the legislative requirements that the best interest and welfare of the child is paramount and a child is entitled to be cared for that is protective and promotes well-being. Whilst noting the positive factors of a single incident 10 years ago, no on-going pattern, stable upbringing and support, along with the positive evidence of the two witnesses and Dr Stuckings’ opinion of the high unlikelihood of violence towards children in the future, the Respondent submitted that there are significant risk factors. These risks included a charge of Assault occasioning bodily harm on a child that caused not only injury to the subject child but was also witnessed by two other children and which adversely affected the middle child. The Respondent submitted Mr Hart failed to protect the children. The Respondent also submitted that Mr Hart was in a position of trust and authority as the de facto partner of the children’s mother, and that was an aggravating factor. The Respondent submitted the Redcliffe Hospital Medical Report was consistent with the allegations and greater weight should be placed on the Police version of events. The Respondent submitted that whilst the charge was withdrawn, it was after a Justice Mediation Agreement was met, and that this is not the same as a not guilty verdict.
- The Respondent submitted that this is an exceptional case whereby it is not in the best interest of children to issue a positive notice. The respondent submitted the decision under review should be confirmed.
- Mr Hart made oral submissions. In summary Mr Hart submitted that the evidence on the balance of probabilities is that this is not an exceptional case. Mr Hart submitted that he has denied under oath that he punched the child, that the trial for Assault did not go ahead because he understood it was not in the best interest of the relationship between the mother and child so he entered a Justice Mediation Agreement, that he was not convicted, that he acknowledges the situation and does not wish to minimise it. Mr Hart submitted he acknowledges that it would have been better to comfort the 3 year-old and not restrain the 12 year old. Mr Hart submitted that weight should be given to testimony of the witnesses who attested to his calm demeanour, high respect in the community and that the parents see him giving positive care for the boys. In particular Mr Hart submitted Dr Stuckings’ report should be given appropriate weight as she opined that he was highly unlikely to be violent against children in the future.
- Mr Hart submitted overall this is not an exceptional case and that the original decision should be overturned and replace with a positive notice.
Consideration and conclusion
- The principles of the Working with Children Act are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. Under that law Mr Hart’s circumstances are captured by provisions that provide that given he has been charged with an offence, that is neither a serious or disqualifying offence, he should be issued with a positive notice unless the Tribunal is satisfied an exceptional case is made out, whereby that the issuing a positive notice would not be in the best interest of children. Furthermore, when a positive notice/ Blue Card is issued, it is unconditional and transferable to enter into any field of child related occupation. It is not just issued for the purpose for which it was initially sought.
- Whilst the Tribunal acknowledges Mr Hart’s stable family and employment background, the positive support given by the witnesses, including Dr Stuckings, and her clear opinion that Mr Hart is highly unlikely to be violent towards a child in the future based on the psychological assessment, the Tribunal is satisfied that given the objectives of the law, the particulars of the Assault charge, outweigh this positive profile and support in deciding whether an exceptional case is made out. In his own testimony Mr Hart confirms he instinctively reacted to the subject child’s behaviour towards the younger child. He describes variously restraining or pinning the subject child down by holding his wrists and putting his leg onto the child’s leg. Mr Hart concedes in part, that he probably caused the bruises identified in the medical report. He testified that he said words to the child. The words were of a retaliatory nature. Whilst Mr Hart denies he punched the subject child, the subject child made the allegation he was punched in the side and the mother reflects in the Child Safety documents that she did not get a chance to stop Mr Hart from hitting her son. The Redcliffe Hospital medical notes refer to a 1.5 cm bruise on the right subcostal region. Whilst the Tribunal makes no direct finding of fact on an allegation of punching, the Tribunal is satisfied that Mr Hart injured the subject child in a retaliatory act in the presence of his mother and two younger siblings, one of whom, as noted in the Child Safety documents, suffered emotional harm. One of whom Mr Hart described as sensitive, and the other a 3 year-old to whom Mr Hart felt protective. The Tribunal considers these circumstances most serious and has accorded them significant weight in making the decision.
- Furthermore, whilst Mr Hart regrets his actions and Dr Stuckings reported Mr Hart takes responsibility for his actions and opines that his higher intelligence can manage anger and make changes, the Tribunal was not convinced Mr Hart had sufficient insight into the impact his actions had on the subject child and middle child. Whilst he stated that all children deserved to be protected from harm, he did not articulate any understanding that children who are involved in family court and child custody battles and who are displaying difficult behaviours may need particular care and protection. Mr Hart was clear about the impact the alleged Assault has had on his life, testifying he would not have children nor intervene in any altercation in the future. The decision to never intervene in an altercation in the future, suggests Mr Hart is more concerned about his own reputation than the proper well-being and protection of children. Intervening in a non-aggressive or retaliatory manner may be entirely appropriate if for example two children are fighting with the potential to harm each other. Such an intervention would also demonstrate that violence is not tolerated. Parents entrust their children to sporting coaches to ensure that they not only enjoy the game and play fairly, but also wherever possible they are able to prevent any harm and will protect them. Whilst the Tribunal acknowledges Dr Stuckings opinion that the likelihood of Mr Hart harming children directly is low, the Tribunal is satisfied that the particulars of the alleged Assault are of such a serious nature, and the limited insight Mr Hart demonstrated into the impact of the incident on the subject children, along with his current approach to non-intervention, that this an exceptional case whereby Mr Hart should not be issued with a ‘positive notice’. The Tribunal orders accordingly.
- The decision of the Chief Executive Officer, Public Safety Business Agency dated 27 January 2016, to issue a negative notice to Wade Norman Hart, is confirmed.
- The Tribunal received documents from the Department of Child Safety under a Notice to Produce. The document provided contains personal and confidential material that is ordinarily protected material under sections 189 and 194 of the Child Protection Act. The Tribunal is satisfied that a non-publication order, in accordance with that law, and pursuant to section 66 (2) (d) of the QCAT Act a non-publication order is appropriate. The parties did not oppose such an Order. The Tribunal orders accordingly.
- The Tribunal prohibits the publication of the contents of the document entitled Legacy Notification Summary provided under a Notice to Produce Order dated 1 July 2016 by the Department of Communities, Child Safety and Disability Services, except so far as the contents are described in these reasons for decision.
 Queensland Civil and Administrative Act 2009 (Qld) ss 17 – 24.
 Working with Children (Risk Assessment and Screening) Act 2000 (Qld) s 6.
 Ibid, s 221
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
 Op.cit, s 226 (2)
 Mr Johansen is a parent of one of the children Mr Hart had coached for one season.
 Mr Watson is President of the Soccer Club, and a former Police Officer.
 Dr Stuckings undertook a single assessment of Mr Hart in June 2016 and prepared a Psychological Report.
- Published Case Name:
Hart v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
Hart v Chief Executive Officer, Public Safety Business Agency
 QCAT 217
07 Jul 2016