JM v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 462
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- Unreported Judgment
- JM v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 462
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JM v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 462
JM v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 462
CITATION: | JM v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 462 |
PARTIES: | JM (Applicant) |
v | |
Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML219-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 29 July 2016 |
HEARD AT: | Rockhampton |
DECISION OF: | Member Beckinsale |
DELIVERED ON: | 24 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDREN-BLUECARD – exceptional case – where a review sought of decision to issue a negative notice – where person convicted of a number of offences including aggravated assault, assault occasioning bodily harm and breach domestic violence order – where no offences were categorised as serious – where child protection material showed substantiated emotional harm and domestic violence – where evidence of risk factors and protective factors – whether or not case was “exceptional” such that it would not be in the best interests of children for the chief executive officer to issue a positive notice – where decision that case was “exceptional” was confirmed Child Protection Act 1999 (Qld), s 189(1)(a), s 194(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a), s 20(2), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, s 226(2), s 236, s 237(1) and (2), s 354, s 360 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Minister for Immigration v Gungor [1982] 42 ALR 209 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 |
APPEARANCES:
APPLICANT: | JM represented himself |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Ms P. Hughes, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
Background
- [1]JM applied to the Public Safety Business Agency to be issued with a positive notice and blue card under the Working with Children (Risk Management) Act 2000 (Qld) (the Act). The Chief Executive Officer of the Public Safety Business Agency issued a negative notice to JM on 30 June 2015.
- [2]JM required a blue card for his employment as a project officer with the Office of Indigenous Engagement at a university and applied to the Tribunal for a review of the decision.
The Legislation
- [3]Such review is pursuant to section 236 of the Act.
- [4]Under section 354 of the Act, the Tribunal can review a decision to find that an exceptional case exists such that it would not be in the best interests of children to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
- [5]The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
- [6]
- [7]The Act does not define “exceptional case” and phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
- [8]Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters, including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
- [9]In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
- [10]The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist[8] when setting aside the decision.
- [11]Neither party bears the onus of proof as to whether an exceptional case exists.[9]
- [12]
- [13]
The Evidence
Life History
- [14]JM was born in New South Wales in 1962 and is now 53 years old.
- [15]JM has lived most of his adult life in Queensland and has a history of steady employment. He describes his work for the past 19 years as being mostly in the communications industry. This has involved home installation of telephone and pay TV but currently the repair and installation of cabling in the street. He was a team manager prior to a restructure.
- [16]JM lost his work as project manager with the university when he did not receive a blue card and also discontinued the tertiary preparation course he was undertaking. Whilst his studies were not dependent on his position as project officer, JM said he felt disheartened when he lost his job and no longer had the time to study and the convenience of a desk at the university. While he did not rule out returning to study in the future, he was in full time employment and did not plan to study within the next twelve months.
- [17]JM has eight children with three previous partners. His children range in age from around thirty-three to fourteen years old. His contact with his children varies. He does not often see the older boys who live in New South Wales but often sees his son who lives nearby. He has sixteen grandchildren. He said he has a civil relationship with each of the mothers of his children.
Criminal Offences
- [18]JM has a number of convictions for criminal offences dating back to 1982 when he was aged 19 to 2014 when aged 53.[14]
- [19]The police briefs concerning the most serious offences were obtained by Blue Card Services.
- [20]In 1984, aged 21, JM was convicted of the assault occasioning bodily harm of his then de facto. He admitted to police that as the result of an argument he became angry and punched his partner several times in the face and also put his foot across her back after she had fallen to the ground. She suffered bruises and abrasions to her face and body and was taken to hospital although not admitted. He told police he was sober at the time. He had apologised to his partner and they remained in a relationship. The brief stated that although JM had been previously arrested for drunkenness, he was normally of good character and repute.
- [21]In 1989, aged 26, JM, was convicted of the aggravated assault of his partner. On that occasion, JM told police he had drunk one and a half cartons of heavy beer during the day and had become upset when he came home. His partner said she had intervened when he emptied the contents of the fridge onto the floor. She said he had grabbed her by the hair and thrown her to the floor where he punched her and stamped on the side of her head about three times. She broke free and ran off with her two year old daughter. JM followed her and again pulled her to the ground by her hair and stamped on her head once more before she was able to break free and call police. She was taken to hospital for skull x-rays. JM admitted to the assault but said he did not stamp on her head but punched the side of her head three or four times.
- [22]In 1994, aged 31, JM was convicted of breaching a domestic violence order. On this occasion JM’s partner called police to their home complaining he was inside being extremely abusive towards her and threatening to destroy property. When police arrived, JM said if he was to be arrested, he should have wrecked the place to make it worth it. He got into the police car of his own accord saying “take me away before I punch the sluts out.”
- [23]In 1997, aged 34, JM was convicted of breaching a domestic violence order and on this occasion was sentenced to six months imprisonment, suspended for two years. JM and his partner were sleeping in the lounge of a residence after both consuming alcohol. The male occupier of the residence came into the lounge and allegedly touched JM’s partner on the leg. JM lashed out at him and punched his partner twice in the head causing her to wake up. He told police he had punched her to wake her up. Although she showed police a lump on her head where she was punched, JM’s partner refused to make a complaint.
- [24]Later in 1997, JM was convicted of behaving in a riotous violent disorderly indecent offensive threatening insulting manner. Police attended a domestic disturbance. They found JM outside a phone box speaking loudly to a woman who was inside the phone box with her two children. He was using obscene language and clearly affected by alcohol. When asked to calm down JM became more agitated shouting abusively and threatening to assault police.
- [25]Most recently, in 2014, JM was convicted of attempting to enter a dwelling with intent, for which he was sentenced to 12 months probation and fined $600. At 11pm on a Friday night, JM entered the driveway of a residence and approached the front door underneath the carport. The dogs of the resident, a 78 year old lady who lived alone, barked and he yelled at them, waking their owner. JM began banging on the window and door aggressively demanding to be let in. He hit the security screen on the window with a stick and turned over pot plants. The lady initially shut herself in her bathroom hoping JM would leave but he continued banging and trying to force his way into the house and she called police.
Child Protection Notification
- [26]Material produced by Child Safety indicated JM was the subject of a notification in January 2007. AS, his former partner and mother of four of his children said she had been injured in an altercation with JM in late December 2006. She said they had both been drinking when at about 1.30am a verbal argument escalated into a physical alteration and he punched her at least five times in the head. The notifier observed a large bruised swelling on the right side of AS’s forehead which she said was a result of being punched.
- [27]Three children aged 14,14 and 4 were present and told the notifier that after being hit, their mother, AS, hid in the toilet while JM hid all the phones in the house. At 4.50am, the eldest child located a phone and managed to get it to his mother who rang police. She was transported to hospital for observation.
- [28]The children and mother stated such incidents involving that level of violence and alcohol consumption occurred on at least a monthly basis. On these occasions JM and AS assaulted each other.
- [29]The notifier described the children as not appearing distressed by the incident but that they expressed feeling sad as they did not like seeing their parents fighting.
- [30]JM told the notifier he did not recall the incident as described by AS and the children. He said when the incident occurred the children were in the bedroom but the eldest came and pushed him away and helped his mother to the toilet when she yelled for help.
- [31]Ultimately, Child Safety found that JM was responsible for substantiated serious emotional harm of the youngest child. However, the child was not in need of protection because AS had ended her relationship with JM and was living alone with her children.
- [32]Child Safety reports this incident resulted in AS obtaining a domestic violence order against JM. The incident does not appear on his criminal history so she did not make a complaint of assault.
JM’s Evidence Regarding Criminal Offences and Child Protection Notification
- [33]JM did not disagree with the accuracy of his criminal history. He said he was a “bad person” through drugs and alcohol but was no longer that person and is now in a “happy place”.
- [34]JM attributed his criminal history to his use of drugs and alcohol agreeing that when he smoked marijuana and drank he became violent. He also considered that when he was offending regularly he was involved in a bad relationship.
- [35]JM said he had first used marijuana aged 14 or 15 although he did not become a regular user until the age of 17 or 18 when he smoked it every day. He said that level of use persisted until around 2007 when his relationship with AS ended. He said he had gone “cold turkey” for around 12 months and did not recommence his use of marijuana until around 2009. He said he had found giving it up easier than giving up smoking cigarettes.
- [36]As regards his use of alcohol JM said he would regard himself as a functioning alcoholic because he always got up and went to work. He said alcohol had become a problem by the time he reached his thirties when he was drinking at least four drinks daily and a lot more on weekends. He said drinking alcohol made him jealous. He said he had addressed his drinking in the same way as marijuana use; that when his relationship with AS ended, he stayed off it for around a year and after that, limited his drinking so it would not cause a problem.
- [37]JM explained the criminal offence in 2014 occurred when he had been going through a bad patch having been made redundant again. He said he had drunk too much and he thought he was at his own home when he was banging on the door to be let in. He thought the elderly lady affected would have been “scared out of her wits” and had thought about apologising with a card and flowers.
- [38]JM had served out his period of probation following this offence. He said he had only been required to have a couple of face to face meetings with his probation officer and mostly spoke by phone.
- [39]As regards the impact on his children of his marijuana use when he was a regular user, JM said they were not exposed to the drug as he and his partner only smoked it under the house or when the children were not there. He did not think his use of the drug had impacted his ability to care for the children as the children were “all well-adjusted” today.
- [40]JM likewise “could not say” that his daily use of alcohol impacted his children as they “are all well-adjusted and love a beer as well.”
- [41]JM was asked about the impact of his offending on the complainants. He agreed he had caused them physical harm but thought most impact would be “mental.” He said the behaviour had resulted in his relationship breaking down and that he was very remorseful for the way he had carried on and will “take it to the grave.”
- [42]JM repeated the statement that he made in his written material that none of his criminal history involved children in “any way, shape or form.”
- [43]JM did not recall AS having taken out a domestic violence order against him. He did not agree with what had been reported to Child Safety that domestic violence was a “regular thing.” He did not agree it occurred monthly but thought it may have been every couple of months. He did not agree that he was involved in domestic violence more frequently than what appears on his criminal history.
- [44]JM agreed that it was not good for children to witness violence. He said it had taken him all these years to recognise that. He said “monkey see, monkey do” but then went on to say that none of his children had done that to their partners. When asked whether he thought they had not been impacted on in the long term he said he has a great relationship with all his children, although he had to work for that. He did not think there was an adverse impact on his relationships with his children at any point. He was asked whether there could be any emotional impact and he replied they had never brought it up with him and he was sure if they wanted to they would have.
Current Circumstances
- [45]JM has been with his current partner about nine years. He describes their relationship as “wonderful.” He considers his partner’s twenty-eight year old daughter as his own and describes a particularly doting relationship with her six year old whom he regards as a granddaughter and who lives with him and his partner.
- [46]JM said he now only smokes marijuana occasionally, for example, when he is having beers with mates at the pub. He said the last occasion when this occurred was a couple of weeks ago. He does not smoke alone.
- [47]JM described his current alcohol use as “a few beers on a Friday or Saturday” when he goes to the pub to “support the raffles.” He said it would mostly be once a week, although not every week, and when he has had enough he goes home. He said the last time he drank was the Wednesday night previous to the hearing (which was on a Friday). That was also the last time he had felt drunk. He said he had drunk probably ten stubbies.
- [48]JM described himself as “a work in progress” which involved getting out of bed each day and continuing to apologise to his former partner.
- [49]JM said his relationship with his current partner one of the most positive things in his life. He said she is supportive of him and they do not have conflicts.
Written References
- [50]JM provided two brief references which had been given at the time he sought a blue card but those people did not attend to give evidence on his behalf.
- [51]A letter dated 6 May 2015 was provided from the Pro Vice-Chancellor at the university where JM was employed. Having known JM for ten months, she described him as an exemplary student and staff member. She wrote that she supported JM’s application for a blue card although she said she was not aware of the nature of JM’s offences as they had not been disclosed to her.
- [52]An undated letter was provided from the acting business manager and lecturer of the Office of Indigenous Engagement who had known JM for twelve months as both student and co-worker. She said JM consistently displayed a very high level of integrity in the workplace, had a strong work ethic and a commitment to treating all people with dignity. She described him as a role model by his professional work practices and behaviour. She said JM had shared his past offences with her and showed great remorse. She supported JM’s application for a blue card.
Submissions of Blue Card Services
- [53]The Agency identified a number of protective factors relevant to JM including:
- He has a history of stable long term employment which has included positions of leadership.
- He is in a stable long term supportive relationship.
- He expressed remorse and appeared to accept responsibility.
- He has no recent issues of domestic violence consistent with an absence of recent criminal history.
- [54]The Agency submitted that whilst there were protective factors there were a number of risk factors arising from the evidence:
- His criminal history reflects a pattern of violence during the eighties and nineties suggesting an inability to manage feelings of anger and to resolve conflict appropriately. His violent offending reflects adversely on his ability to engage in child related employment where he is charged with providing a safe environment.
- Whilst there has been no personal violence for a number of years, the offences remain relevant: the passage of time not detracting from the seriousness of the offending.[15]
- Of particular concern is that some offending has occurred in front of young children. The impact of children being exposed to violence is significant both in the short and long term.
- The offence in 2014 is of concern, causing an elderly woman distress and illustrating that alcohol continued to contribute to JM’s displaying anti-social behaviour. A great number of offences were committed under the influence of alcohol, but notwithstanding that he continues to drink to excess.
- JM’s evidence is that he used cannabis on a daily basis between the ages of 18 to 44 and raises the concern that children were exposed to illicit drug use by JM.
- JM denied any impact on children as a result of his cannabis use, raising a concern about his level of insight.
- That JM continues to use marijuana and alcohol given he has identified their use as a trigger is of concern. He has not shown he has addressed the triggers to his behaviours or put in place strategies to avoid offending, the 2014 offence being a relatively recent incident.
- Although there are significant gaps in JM’s criminal history, the Child Safety material raises concerns about an ongoing pattern of domestic violence in a home with young children.
- JM appeared to lack insight in saying his children are well-adjusted and did not suffer emotional harm.
- [55]The Agency submitted that limited weight can be given to the references provided given the authors were not available for cross-examination. One referee acknowledges no knowledge of JM’s offending and the other does not indicate what her awareness of that history was. Both referees had only known JM a short time and neither was able to provide any observations of him with children.
- [56]The Agency submitted that the transferability of a blue card is a factor to be considered.
- [57]The Agency submitted the risk factors outweigh the protective factors such that such that this is an exceptional case in which it would not be in the interests of children for JM to be issued with a blue card at this time.
JM’s Submissions
- [58]JM made the following oral submissions.
- That whilst he might not be the best person in the world he would not harm a child and has sixteen beautiful grandchildren he loves dearly.
- The system of blue card review is not fair to Aboriginal and Torres Strait Islander people and he felt unjustly treated in the way his criminal history was taken into account. He said while he was not saying his history should not be taken into account, he is not that person today.
- The unfairness of the system was shown by two cases he had knowledge of. He said in the first case, a friend of his, whom he named, had been to jail for assault and being drunk and disorderly and had received a blue card. The second case, which was on the news, involved a young person with no criminal history found raping a child.
- [59]JM’s letter to blue card services also stated that he was committed to helping Aboriginal and Torres Strait Islander communities.
- [60]JM’s Application to review a decision filed in the Tribunal states the decision not to grant him a blue card was wrong or not properly made because:
- I am an indigenous man and feel that this office has been treating all indigenous men in this same manner and not taking account of the facts.
- Even though I have a criminal history I am very sorry and remorseful.
- None of my past history has anything to do with children.
- The decision to issue me with a negative notice is highly disrespectful and paints me as a bad person even though I have no criminal history connected directly to dealing with children.
- I have now lost my employment because of this unjust decision.
- [61]JM’s application added that the letters from his former employer and from himself were overlooked and not even taken into account as the writers were not contacted.
Discussion
- [62]JM presented as very personable with a self-deprecating sense of humour and gave thoughtful and very honest responses.
- [63]I agree with blue card services that little weight can be attached to the two references provided. I am unclear as to how a referee can state she supports a blue card application without knowledge of that person’s criminal history. The other referee writes she is aware of the history but does not say what she understands that to be.
- [64]JM has complained in his application that these references were not taken into account as the writers were not contacted. This Tribunal conducts a fresh hearing on the merits and JM has had ample opportunity to provide detailed statements from these witnesses or others on his behalf and have them available for cross-examination but he has not done so.
- [65]JM referred to two examples of cases which he says demonstrate unfairness of the system. He was unable to give sufficient detail for either matter to be identified as a precedent. I think what he may have been trying to illustrate with the first example, is that people who have been in jail have received a blue card, whereas he has not served jail time but has been denied a blue card. The second example illustrates that serious crimes against children can be committed by people without a criminal history. Both of those things are true but are not of great assistance to JM. I am bound to consider the circumstances of his matter and apply the legislation as interpreted in previous cases.
- [66]JM also expressed the view that the system of blue card review is not fair to Aboriginal and Torres Strait Islander people and he felt unjustly treated in the way his criminal history was taken into account. Section 226(2) of the Act specifically provides that a person’s criminal history is taken into account. That is a requirement of legislation and not dependent on a person’s racial or cultural background.
- [67]I accept the submissions of blue card services as to the protective factors identified as relevant to JM. In addition to those factors, I consider that JM having been described as a role model by his former manager and lecturer, and the fact that JM identified his commitment to helping Aboriginal and Torres Strait Islander communities are protective. I consider additional protective factors are JM strongly identifying as a father and grandfather and his acknowledgement of his great love for his children and grandchildren.
- [68]I accept the submissions of blue card services as to the risk factors relevant to JM.
- [69]JM has submitted that he is no longer that person who was involved in criminal offending. My concern is that as recently as 2014, when JM was a mature 51 years old, he committed an offence whilst seriously affected by alcohol. He explained the behaviour as occurring because he thought the residence he was trying to force his way into was his own home. Behaviour of that nature would be unacceptable at his own residence and possibly constitute domestic violence.
- [70]JM identified his use of alcohol as a trigger to his offending behaviour. He said he was able to give it up entirely after a relationship breakdown in 2007 and depicted his current use as moderate and controlled. Yet he admitted having around ten stubbies only two days prior to the tribunal hearing and feeling drunk as a result.
- [71]JM also identified his use of marijuana as a trigger to offending behaviour, particularly when combined with alcohol, yet he continues to use that drug. The deleterious effects of marijuana use are known, and it remains an illegal substance. In that regard, JM continues to break the law.
- [72]JM displayed a lack of insight into the impact on children of his behaviours over the years. Even at the tribunal hearing he continued to insist that none of his criminal history involved children in “any way, shape or form.” That was despite the police brief outlining that a two year old was present when the 1989 offence was committed and two children were present when the later 1997 offence occurred.
- [73]JM minimised the occurrence of domestic violence, disagreeing that it was a “regular” occurrence but conceding it may have occurred as frequently as every couple of months. Whilst acknowledging it was not good for children to witness domestic violence he ruled out that his own children had been affected.
- [74]JM said children were not affected by his daily marijuana use when that was occurring because it was not used in their presence. That overlooks that an adult responsible for the care of children is not going to be able to provide the same level of care when under the influence of a drug than if not affected.
- [75]There is an absence of evidence that JM has sufficiently addressed his alcohol and drug use which he concedes have resulted in offending behaviour. JM clearly has a lot to offer as a role model not only to his large family but to the wider community. I encourage JM to continue down the path of self-improvement and to reapply for a blue card after he has better addressed the matters identified as risk factors. At present I find that there are risk factors which outweigh the positive factors and I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the decision of the chief executive officer of the Public Safety Business Agency that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is confirmed.
Non-Publication of Identifying Information
- [76]The Agency submitted it would be appropriate for the Tribunal to make an order prohibiting the publication of any information that would identify, or may lead to the identification of a child, or a person who was a child at the time of the offending pursuant to section 66 of the Queensland Civil and Administrative Act 2009 and section 194(1)(a) of the Child Protection Act 1999 and I agree.
Orders
- The decision of the chief executive officer of the Public Safety Business Agency made on 30 June 2015 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is confirmed.
- Publication of this matter will occur in a de-identified manner.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19(a), 20(2).
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.
[4] Ibid, s 221.
[5] Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 at [31].
[6] Ibid at [33].
[7] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].
[8] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[9] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
[10] Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.
[11] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
[12] Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 at [65].
[13] Grindrod v Chief Executive Officer, Department for Community Development op cit.
[14] Criminal History Information detailed in Statement of Reasons at page 2.
[15] Grinrod v Chief Executive Officer, Department for Community Development [2008] op. cit.