RGM v Director-General of Department of Justice and Attorney-General
[2017] QCAT 142
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- RGM v Director-General of Department of Justice and Attorney-General[2017] QCAT 142
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RGM v Director-General of Department of Justice and Attorney-General[2017] QCAT 142
RGM v Director-General of Department of Justice and Attorney-General[2017] QCAT 142
CITATION: | RGM v Director-General Department of Justice and Attorney-General [2017] QCAT 142 | |
PARTIES: | RGM (Applicant) v Director-General Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML220-16 | |
MATTER TYPE: | Children's matters | |
HEARING DATE: | 10 April 2017 | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Gardiner | |
DELIVERED ON: | 8 May 2017 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: |
| |
CATCHWORDS: | CHILDREN'S MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – where a breach of a domestic violence order exists – where applicant denies any responsibility for breaches – whether exceptional case exists – whether not in the best interests of children to issue a positive notice Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 354, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 24, 66 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186 | |
REPRESENTATIVES: |
| |
APPLICANT: | In person | |
RESPONDENT: | The Chief Executive Officer represented by Ms H. Marunda In-house Solicitor | |
REASONS FOR DECISION
- [1]RGM had a positive notice and subsequent blue card issued to him on 3 September 2015. After notification of a change to his police information, the Deputy Chief Executive Officer of the Public Safety Business Agency, asked RGM to provide submissions during a re-assessment of RGM’s eligibility to hold a blue card.
- [2]RGM provided submissions in support of his continued holding of a blue card, but on 1 August 2016, the Deputy Chief Executive Officer decided to cancel the positive notice and issue a negative notice, also cancelling RGM’s existing blue card.
- [3]RGM has applied to QCAT to review this decision. QCAT can review a decision to issue a negative notice.[1] The review is conducted on the basis that the welfare and best interests of a child are paramount[2] and is a fresh hearing of the case with the purpose of producing the correct and preferable decision[3] on the evidence before the tribunal.
- [4]The re-assessment of the blue card status came about because in August 2015, RGM was the respondent in a protection order made in the Magistrates Court.
- [5]The complainant in the matter was the then partner of RGM.
- [6]The final order had two conditions – that RGM be of good behaviour towards the complainant and others and not commit domestic violence against her or expose others to domestic violence. The order was inforce up to August 2016.
- [7]There had been two earlier hearings for a temporary protection order at the Magistrates Court. These earlier hearings were in April 2015 (where more extensive protection orders were made naming individuals) and again in May 2015 (where the orders were extended but the conditions reduced to good behaviour and not commit domestic violence or expose others to domestic violence).
- [8]On 23 September 2015, an incident occurred between the parties. This resulted in a further temporary protection order being made on 30 September 2015.
- [9]The details given to the court concerning the incident on the 23rd were as follows:
“At about 7 pm on the 23rd of September 2015 the defendant was at his residence in company with the aggrieved. They were watching a movie in the lounge room of the address when a cup containing liquid was spilled onto the floor near the couch. The defendant has accused the aggrieved of causing the spill to which the aggrieved has denied. The defendant became angry over this and began shouting at the aggrieved. The defendant has said to the aggrieved you have two minutes to leave or I’m calling triple O.
The aggrieved has begun packing some belongings to preparation to leave the address, as they had planned a holiday together. The aggrieved asked the defendant if he would refund her money for the holiday. The defendant replied this – fuck you. Get out of here. The aggrieved said do you really want me to leave, because you might calm down. The aggrieved has followed the defendant to the kitchen. The defendant called the aggrieved a dog. The aggrieved was crying. And those are all the relevant facts, your Honour.” [4]
- [10]RGM pleaded guilty to the breach of the protection order made in August 2015.
- [11]A transcript of the matter before the Magistrates Court was provided by RGM. At the time of the hearing, there were three breaches before the court and a private application by RGM that was being withdrawn.[5]
- [12]RGM pleaded guilty to one breach but on the other two breaches, no evidence was offered. The two breaches not proceeded with involved the alleged use of a kitchen knife to threaten the aggrieved and alleged purposeful damage to the aggrieved’s motor vehicle.
- [13]The following submissions were made on behalf of RGM by his legal representation at the hearing and then after consideration of the matter, the comments made by the presiding magistrate:
Lawyer: “as the prosecutor has quite property pointed out, my client has no history whatsoever of a criminal nature. He’s a 47 year old man. He’s single. He has twin daughters which who he has shared custody [indistinct] over the last few months, your Honour. He’s employed as a trainer. He trains people [indistinct] disability - the aged care industry. So he trains students and he trains people [indistinct] the industry. A blue card is a prerequisite of his training, your honour. In fact, I’ll be asking your Honour not to record a conviction."
…
Bench: “Dos it get a fine?”
…
Bench: “It’s unusual. Look he’s never been in strife before.”
…
Bench: “And, look – and look, as you’ve said, you know I find all domestic violence abhorrent. It’s words.”
…
Bench: “It didn’t go beyond that. You know, you’ve known me long enough … I don’t often give bonds, but I think this is might be an appropriate one, isn’t it?”
…
Bench: “Look, just - this is an unusual one. Look, there’s a lot going on. I’ve read - the pertinent parts are references. There’s a lot going on there. The words used. Its - he uses words. Some obscene language. Shouting. It evolves out of nothing. A coup gets spilled over with some liquid in it and here we are today. I don’t think we even get to a fine, sir.”
- [14]RGM’s then partner (the aggrieved in this magistrate’s court matter) provided no statement in this hearing. However, RGM provided copies of a number of text messages between himself and the aggrieved and a submission to the police concerning the domestic violence breaches.
- [15]In the submission to the police, the aggrieved says she was not in fear of RGM and did not believe RGM purposefully damaged her vehicle. She did not believe he breached the domestic violence order on that day.[6] It is also clear from the tenor of the text messages that the complainant considered that the relationship between herself and RGM had not irretrievably broken down and that was some possibility of a future between them, despite the domestic violence order.
- [16]Because of the possibility of a future relationship and based on the texts before this tribunal, I am satisfied the complainant was prepared to withdraw and even change her evidence about the alleged incidents concerning the damage to her car or the allegation of a knife being used against her[7].
- [17]RGM alleges that he suffered both physical and verbal abuse from the complainant during the relationship. This alleged abuse is documented in the private application for a protection order ultimately not proceeded with.
- [18]These counter allegations of alleged domestic violence towards RGM are supported by references provided by colleagues and friends to the magistrates court and described observations of physical bruising, damage to property, bullying and unsavoury posts on social media, all allegedly perpetrated by the complainant.
- [19]While I make no findings about this alleged incidents, I am satisfied that this relationship was characterised by dysfunction at time descending into verbal and potentially other forms of abuse between the partners.
- [20]On all of the evidence before me, these actions seem out of character for RGM. He is otherwise described by his referees as a dedicated father to his daughters, and a man of integrity and honesty. His referees were effusive in their support of him and I give weight particularly to the evidence of RGM’s immediate supervisor Ms B who has known him for a number of years professionally as his direct supervisor.
- [21]Ms B gave evidence that she had read the reasons document from the Chief Executive Officer, although she was not aware of any earlier protection orders. She described RGM as “cool, calm and collected” in the work environment. She said his dispute resolution skills were high and he could “talk people down”. She further said RGM had strong ethics and that he maintained good personal boundaries. She had never felt threatened by him or seen him threaten anyone.
- [22]Both referees spoke of the dysfunctional relationship as having a profound effect on RGM, provoking him into defensive responses, and keeping him off balance and confused.[8]
- [23]There had been a previous domestic violence order. The Magistrates Court records show that RGM was the respondent in a matter in 2002 and RGM gave evidence that this was an earlier domestic violence application made by an ex-partner, the mother of his oldest daughter.
- [24]After the incident in September at RGM’s home, and before a further temporary protection order was made, RGM and his ex-partner were on a holiday together to a coastal resort. Accompanying them were his ex-partner’s children and one of RGM’s daughters.
- [25]RGM’s evidence was that his brother came to visit and the three adults and the children went to the beach. The adults had been drinking prior to the beach outing and this continued. An altercation erupted between the brothers. This resulted in a short “wrestling” event on the footpath outside the resort. RGM says this was unobserved by the children but was observed by other adults. RGM says although he is not proud of it, this is the way he and his bother have always resolved their differences.
- [26]RGM gave evidence that he and his brother are very different and have taken different paths in life. The altercation is recorded in an affidavit of a Police Sergeant.[9] The Sergeant records that the alteration was observed by the resort manager and that one of the males was identified as RGM. The resort manager observed that RGM’s then partner was also very upset and screaming.
- [27]RGM gave evidence that after that he was kicked while on the floor of the unit they had rented by his then partner. He said this was observed by his daughter who was also in the unit. RGM was of the view that he would consider his 14 year old daughter giving evidence about her observations if that were necessary to his defence and that he had not made up his mind if that was an appropriate course of action in his daughter’s best interests.
- [28]Under the Working with Children (Risk Management and Screening) Act 2000, a positive notice must be issued to RGM unless the tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because none of the current orders or charges recorded on RGM’s criminal history are defined as serious or disqualifying offences under the Working with Children Act.[10]
- [29]The Act does not provide a definition for “exceptional case”. However guidance has been provided in past matters on how to decide if the facts give rise to an exceptional case. In Commissioner for Children and Young People and Child Guardian v FGC the appeal tribunal stated that "exceptional case" must be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect.[11] It said the term is in common use and should be considered without any special meaning or interpretation.[12]
- [30]Further guidance to deciding if there is an exceptional case is provided by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor[13] where the Court looked at the risk and protective factors as determined by the evidence in that case.
- [31]Section 226 of the Working with Children Act also provides factors this tribunal must have regard to in deciding if this is an exceptional case bearing in mind the object of the Act is to “promote and protect rights, interests and wellbeing of children and young people in Queensland”.[14]
- [32]If the RGM was to be issued with a blue card then that Blue card is transferrable for all purposes. The Tribunal is unable to place any condition on the issue of the card.
- [33]Section 226(2) of the Working with Children Act requires this tribunal to consider the conviction, 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 that is reasonably relevant to an assessment of the applicant for child related employed.
- [34]When considering the pleas of guilty to the breach of the protection order by RGM, I am unable to make findings of fact inconsistent with such a plea.[15]
- [35]Is this an exceptional case in which it would not be in the best interests of children for a positive notice to be in place?
Risk Assessment
Protective factors
- [36]The Chief Executive Officer points to only one protective factor in this matter – the high and positive view held by two witnesses of RGM’s character. However only one of these witness had read the reasons document and she was unaware of a previous protection order made against RGM.
- [37]I do however give weight to the view of these witnesses, in particular that of Ms B.
- [38]RGM says it is protective that he is a stable person, a good parent who is raising stable happy children. This is supported by the evidence of Ms C who described RGM‘s children and her interaction with them in glowing terms.
- [39]RGM has had extensive contact with his daughters both before and after the events in September 2015 and there have not been any concerns raised about his care of the children.
- [40]Since ending his relationship with the complainant, RGM has no further involvement in the criminal justice system.
Risk factors
- [41]The Chief Executive Officer points to a number of risk factors being present:
- RGM’s criminal history and surrounding circumstances that indicate an inability to manage aggression and a propensity to react violently in situations of conflict;
- How RGM deals with conflict, for example, the wrestling with his brother that could have been seen by children – but wasn’t;
- The role modelling this dysfunctional relationship provides to RGM’s children and others;
- RGM’s failure to protect children from seeing him being kicked by his ex-partner;
- That he would contemplate his daughter giving evidence on his behalf;
- That RGM appears to have colluded with the complainant to minimise the allegations he faced in court, suggesting an unwillingness to accept responsibility for his actions. The Chief Executive Officer relies on the emails from the complainant as evidence of this;
- RGM’s history involves incidents of domestic violence in the presence of his children, suggesting a lack of self control;
- That RGM’s submissions do not demonstrate insight into his offending or indicate any remorse. RGM denies many of the allegations made by his ex-partner. He says the incidents did not occur and that she had made it all up. For example, in his oral submissions to the Department,[16] RGM says “None of it is accurate. It is not true. The person who alleged the charges is “psychotic”. She should not have a blue card”;
- RGM has no strategies around dealing with conflict because he does not believe the problem lies with him.
- [42]This denial of responsibility was also the tenor of RGM’s evidence at the hearing of this application. He said he took all steps to avoid coming into contract with the complainant - often walking round the block – but that she persisted in contacting him. He says his ex-partner’s story changed many times and was inconsistent with her actions, for example, taking 5 days after the alleged knife incident to report it, coming on holidays with him if she was in fear of him, bringing her own children with her.
- [43]RGM blames his ex-partner for all of his current problems and the lack of a blue card. He says he is a calm, law abiding, stable man and all of his problems arose because he believed the lies his ex-partner was telling him because he thought he was in love.
- [44]RGM is not remorseful. He does not accept he has done anything wrong or there is anything about which to be remorseful. He says he asked his ex-partner to leave the night of the incident many times and she did not. He says she barricaded herself in his room and based on her previous actions, he was entitled to be concerned she would destroy his possessions.
- [45]RGM believes he is entitled to protect his possessions in his own home and that on being asked to leave, his ex-partner should have done so. He believes it was her actions in not leaving that escalated the incident.
- [46]He says he swore, but not at her. He admits in the heat of the moment calling her “a dog”. He flatly denies any incident with a knife and say that was made up by his ex-partner.
- [47]RGM says he had no control over the actions of his ex-partner. He does say he discussed the complaint with his ex-partner after the event but before a further temporary protection order was imposed stopping all contact.
- [48]These discussions are evidenced by a joint statement signed by RGM and the aggrieved and filed in the Magistrates Court prior to the last hearing of the breach notice.[17]
- [49]RGM says had he of known his ex-partner had complained to police, he would not have allowed her to accompany him on the holiday, a week later.
- [50]Although he does not require a blue card for his current training position with adults, RGM says not having a blue card is a disadvantage and will restrict his prospects for employment into the future.
- [51]However, personal hardship is not a relevant factor when determining if the case is exceptional.[18]
- [52]The Chief Executive Officer submits that RGM’s history indicates that he has difficulty managing his anger, maintaining self-control and responding to conflict.
- [53]This may be so in this relationship but there is no evidence before me that this is the case in other parts of RGM’s life. These referees gave no evidence of this and spoke of him in glowing terms.
- [54]RGM trains adults in conflict resolution and anger management skills in the disability sector. He does not currently work with children.
- [55]RGM gave evidence that his strategies for dealing with conflict – walking away or waiting till the person calms down and respecting boundaries. He says he has attended professional assistance on two occasions but neglected to get any report from that professional.
Discussion
- [56]In every respect except his most recent relationship, RGM presents as a calm quiet man who is respected in his workplace and by friends as a mentor, mediator and trainer. He is described as understanding boundaries, showing patience and respecting others. He is a successful father of girls. He describes himself as a stable quiet man.
- [57]He was previously the subject of a domestic violence order but that was 14 years ago. That order was a long time ago and I have no record that RGM ever breached the terms of the earlier order. I place low weight on this previous order other than to acknowledge that this current protection order is not RGM’s first order against him.
- [58]He recently pleaded guilty to the breach of a recent protection order arising from a recent personal relationship. The Tribunal cannot now, in relation to the breach, accept a different version of events that goes to the facts concerning the commission of an offence.[19]
- [59]This recent breach seems at odds with all the other parts of RGM’s life. It is this disconnect between RGM’s private life and his professional life that raises my concerns.
- [60]I am satisfied from the material before me that the relationship that gave rise to this current protection order was dysfunctional and tempestuous. I do not accept that it was all as one sided as RGM believes. It takes two to have a fight, no matter what the provocation and RGM does not appear to have used his training or insight as a mature man to find another way to settle disputes with his ex-partner – or to finish the relationship.
- [61]This review is conducted on the basis that the welfare and best interests of children are paramount. It is finely balanced when the risk and protective factors are weighted up, particularly around RGM’s non-acceptance of any responsibility for the dysfunctional relationship other than that he believed his ex-partner and he was in love.
- [62]There is also a conflict on the evidence between what his ex-partner did and what she said. If she was as fearful of him as she indicated, I cannot see how she was prepared to go on a holiday with him with her children within one week of the alleged offences.
- [63]I place weight on the views of the presiding Magistrate in deciding the outcome of the breach notice.
- [64]What finally tips the balance against re-instating RGM’s positive notice is the disconnect between RGM’s conflict resolution methods in his private life and how he resolves conflict in his work. In the professional sphere, his colleagues take a completely different view of his conflict resolution skills.
- [65]In his personal life with his ex-partner and his brother, conflict has recently been solved by physical altercations and verbal abuse. As I have commented, it takes two to make a fight.
- [66]I cannot reconcile these different processes of problem solving. Even as a mature man, RGM does not accept any responsibility for these physical and verbal altercations. In all his evidence, he says he is blameless or that with his brother, it is just how things are. He shows no insight or remorse into the causes of the physical or verbal altercations or his role in them.
- [67]I hope RGM has learned some insight into his personal relationships and that this pattern in his private life will not be repeated.
- [68]I am satisfied that apart from the kicking, the incidents occurred in the absence of children. One of RGM’s children did observe this incident but on that occasion, RGM was not, on his evidence, the perpetrator. However the fact that he allowed this incident to occur in the presence of children concerns me.
- [69]
“The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependant on the adults around them having insight into their actions and the likely effect on children.”
- [70]I am not satisfied RGM has shown any insight or remorse into the causes or effects on children of the recent incidents with his ex-partner or his brother. He completely blames his ex-partner for all their problems and says that wrestling with his brother is how he has always problem solved with him.
- [71]I place weight on this lack of insight and remorse.
- [72]RGM’s risk factors in issuing him with an unrestricted positive notice outweigh the protective factors and the correct and preferable decision is that an exceptional case does exist, such that a positive notice should not be issued.
- [73]The decision of Director-General that the applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354.
[2] Ibid ss 6 and 360.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.
[4] Transcript of Proceedings 22 March 2016 page 5 point 5.
[5] Transcript of Proceedings 22 March 2016 page 2 point 25.
[6] Text dated10/11/15; Annexure to submissions filed by RGM on 13 January 2017 (exhibit 3).
[7] Text dated10/04/15; Annexure to submissions filed by RGM on 13 January 2017 (exhibit 3).
[8] Statements of Ms B dated 21 March 2016 and Ms C dated17 March 2016; Annexure to submissions filed by RGM on 13 January 2017.
[9] Part of Exhibit 8 – the produced Magistrates Court file.
[10] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.
[11] [2011] QCATA 291 at para 31.
[12] Ibid at para 33.
[13] [2004] QCA 492.
[14] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[15] Queensland College v Illingworth [2016] QCAT 309.
[16] Exhibit 6, page BCS-022.
[17] Part of Exhibit 8 – the produced Magistrates Court file.
[18] Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171 at para 109.
[19] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186.
[20] [2006] QCST 11 at para 97.