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Toranto v Director-General, Department of Justice and Attorney-General[2017] QCAT 397

Toranto v Director-General, Department of Justice and Attorney-General[2017] QCAT 397

CITATION:

Toranto v Director-General, Department of Justice and Attorney-General [2017] QCAT 397

PARTIES:

Trevor Luke Toranto

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML185-16

MATTER TYPE:

Childrens matters

HEARING DATE:

18 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

21 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice.

FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of the decision to issue a negative notice – where previous criminal charges and convictions for reckless and dangerous driving, assault and domestic violence – where applicant accepts the seriousness of the incidents and shows remorse and insight – where positive steps have been taken with counselling – where previous victims now support applicant  – whether exceptional case exists – whether not in the best interests of children to issue a positive notice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354, s 360

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

REPRESENTATIVES:

APPLICANT:

In person

RESPONDENT:

Mr I McCowie, Government Legal Officer

REASONS FOR DECISION

  1. [1]
    Trevor Taranto applied for a positive notice and blue card on 2 October 2015.  The Queensland Police Service advised of relevant police information about Mr Taranto.  The Director-General then invited Mr Taranto to make submissions to support his application but on 11 July 2016, a negative notice was issued.
  2. [2]
    Mr Taranto 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.
  3. [3]
    The negative notice was issued because Mr Taranto had been convicted of driving related offences in late 2005, early 2006 and domestic violence.
  4. [4]
    Mr Taranto wishes to study complimentary medicine and it is a requirement to progress these studies to hold a blue card.
  5. [5]
    Under the Working with Children Act, a positive notice must be issued to Mr Taranto 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 charges or convictions recorded on Mr Taranto’s criminal history are defined as serious or disqualifying offences under the Working with Children Act.[4]
  6. [6]
    The Working with Children 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[5] 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.[6]  It said the term is in common use and should be considered without any special meaning or interpretation.[7] 
  7. [7]
    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,[8] where the Court looked at the risk and protective factors as determined by the evidence in that case.
  8. [8]
    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”.[9]
  9. [9]
    If Mr Taranto 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.
  10. [10]
    Section 226(2) requires this tribunal to consider the convictions against Mr Taranto, 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 employment.
  11. [11]
    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?
  12. [12]
    Mr Taranto’s evidence was as follows:
    1. He is employed full-time in the health care industry, concurrently also working as  a remedial massage therapist;
    2. He wishes to undertake further higher studies at university level and to do this he requires a blue card;
    3. He is deeply remorseful of the incidents.  He believes they were in the context of family dynamics at the time and that those dynamics have now changed;
    4. Mr Taranto has now obtained proper counselling and the comfort and advice of friends.  He says his immaturity in expressing his anger and pain led to the earlier incidents.
    5. At the time of the first incident, some personal health issues also substantially affected his state of mind towards his family.  With maturity he has learnt to deal with the outcome of these personal health issues; and  
    6. He now has positive relationships with his family and an understanding and practices to deal with family issues as they arise.
  13. [13]
    Mr Taranto further says:
    1. After the incident he has sought out and attended a number of professionals to assist him.  His recent work using cognitive behavioural therapy has given him the skills to identify feelings of frustration or injustice and positively deal with them;
    2. Mr Taranto expressed an ongoing commitment to regularly continuing these sessions;
    3. He no longer resides with his parents, moving out of their family home by choice.  It is a source of pride to him that he now provides health advice to his mother, sister and grandparents; and
    4. He feels privileged to work in the industry he does and is passionate about his ability to contribute to the well-being of other people. 
  14. [14]
    A clinical psychologist provided a psychological assessment of the Tribunal on Mr Taranto and a report on his treatment.  He had seen Mr Taranto for 9 sessions between 9 March 2017 and 20 September 2017.  The psychologist is aware of Mr Taranto’s personal and criminal history.  Mr Taranto completed 2 assessment sessions and 7 treatment sessions in this time.
  15. [15]
    The psychologist opined that Mr Taranto grew up in an environment where anger was commonplace and a typical response and that he learnt to respond in the same way.  The treatment sessions focused on teaching Mr Taranto to understand the causes and purposes of his emotional reactions with a focus on anger and how to deal with this emotion.
  16. [16]
    In summary, the psychologist reports:
    1. Mr Taranto answered all questions openly, honestly and to the best of his ability;
    2. He did not appear to withhold, minimise or deny his responsibility in the subject events;
    3. He grew up in an immigrant family that expressed emotions and developed a habitual response of anger to perceived injustices;
    4. Mr Taranto does not have a diagnosable personality disorder;
    5. On the two significant occasions he has acted out in his life, both were precipitated by family conflicts and his reactions have been immature and impulsive over-reactions;
    6. Assessment established Mr Taranto had little understanding of the cause or role of emotion in his life.  He was prone to over-thinking, dramatizing and overreacting to life events.  He had dysfunctional beliefs about injustice and how to respond;
    7. A treatment plan was developed and implemented.  Mr Taranto demonstrated over months that he can respond appropriately now to adverse, challenging, stressful and unjust events without becoming angry and by behaving assertively not aggressively.
    8. Mr Taranto had also matured since 2012.  He has successfully completed tertiary studies, lives away from his family and sustains full-time employment; and
    9. Mr Taranto’s current risk of responding to life events aggressively, angrily or self-destructively is “average” compared to his age and gender peers.
  17. [17]
    Three personal witnesses gave evidence for Mr Taranto. 
  18. [18]
    The first was Mr Taranto’s sister – the complainant in the DV conviction in 2013.  Ms Taranto spoke of her very close relationship with Mr Taranto – then and now.  She says the event stemmed from a very personal, sensitive matter Mr Taranto was dealing with at the time and the incident was single, isolated and completely uncharacteristic.
  19. [19]
    Ms Taranto describes the AVO incident as “extremely unfortunate”, the result of an ongoing build-up of frustration and in hindsight, not necessary.  She said it reflected the fact that she and Mr Taranto continued to live together in the family home.  They are now reconciled and she in no way fears her brother after what she characterises as a “brief dispute”.
  20. [20]
    Ms Taranto is now an older primary school teacher and has no hesitation in recommending her brother to work with children or people of any age.  
  21. [21]
    The next witness is a friend of Mr Taranto since 2013 who is aware of both subject incidents. He has tertiary qualifications with a Bachelor degree of Built Environment in interior design.
  22. [22]
    This witness describes Mr Taranto as a “dynamic, engaging individual who is passionate about naturopathy and alternate medicine” and who has “persisted in moving himself forward to improve himself and his career” with an “overarching desire for growth in his professional field”, for which he needs a blue card.  This witness supports Mr Taranto’s gaining of his blue card.
  23. [23]
    Mr Taranto’s final witness is another close friend since 2013 who holds qualifications as a practicing marketing practitioner at a high level, having lectured at a University Masters level and held higher positions on boards and in companies.  He is aware of both subject incidents.
  24. [24]
    This witness also spoke of Mr Taranto’s growing maturity, remorse over the earlier incidents and desire to further his studies.
  25. [25]
    This witness said Mr Taranto’s ethics and commitment to helping others is second to none and that he has passion, determination and commitment to his professional advancement.
  26. [26]
    This witness also wholeheartedly supported Mr Taranto gaining his blue card.

Risk Assessment

Protective factors

  1. [27]
    The Director-General points to the following protective factors in this matter:
    1. Mr Taranto’s charges and convictions for assault and domestic violence arose out of a family conflict, suggesting that in the absence of that conflict Mr Taranto may be at a lower risk of reoffending;
    2. Mr Taranto is in stable employment;
    3. Mr Taranto has the support of his referees, but it does not appear that he is close to his parents, his older brother, nor is he in a relationship;
    4. Mr Taranto has submitted a reference in support of his application from his sister, who was the victim of his violent offending;
    5. Mr Taranto sought treatment for his mental health in 2005 and 2013 and most recently from Dr Walsh; and
    6. Dr Walsh in his report states that Mr Taranto has:

…demonstrated over the last few months that he is able to deal with adverse life circumstances including perceived and actual injustices without overreacting and to choose to engage in assertive and appropriate behaviours rather than angry and aggressive behaviours … across his work, family, commercial and social environments.[10]

Risk factors

  1. [28]
    The Director-General points to the following risk factors:
  1. (a)
    Mr Taranto’s criminal history begins in 2006 with his conviction for driving recklessly/furiously or speed/manner dangerous when he:
    1. drove his father’s car without the supervision of a licensed driver;
    2. drove at a speed of 180 km/h in a 50 km/h zone;
    3. drove while under the influence of alcohol;
    4. lost control of the car when he belatedly fastened his seat belt;
    5. collided with a parked car, then skidded 100 metres before hitting a second car, damaging both cars; and
    6. told police that he had had an argument with his parents and expressed suicidal ideations,

demonstrating that the Applicant lacks the judgment to deal with conflict, control anger, is liable to act impulsively, and that the Applicant acted without regard to the potential impact that his actions would have on others;

  1. (b)
    Mr Taranto further offended in 2012 when he:
    1. sent abusive and threatening text messages to his sister;
    2. on returning home, entered his sister’s room verbally threatening her;
    3. blocking his sister’s escape when she attempted to leave;
    4. choked his sister requiring the intervention of the Applicant’s mother; and
    5. threatened his sister by holding a lamp above her,

leading to his conviction for assault and the issuing of a domestic violence order. Mr Taranto’s offending conduct on this occasion again demonstrated his lack of judgment to deal with conflict and to control anger;

  1. Mr Taranto’s 2012 offending occurred even though he had attended counselling after his offending in 2005, demonstrating that he was unable to restrain his anger and suggesting that he may be liable to again relapse into offending;
  2. On 4 February 2013 Mr Taranto had a further argument with his sister leading to him threatening her and allegedly spitting in his sister’s face, again demonstrating his propensity to respond violently to disagreements;
  3. Mr Taranto “grew up in an environment where anger was common place and a typical response when people in his environment felt aggrieved or that they had been treated unfairly or unjustly” and the Applicant “learnt to respond under those circumstances in the same way”,[11] suggesting that the Applicant may be likely to respond violently to conflict, or perceived conflict, in the future;
  4. While it appears that Mr Taranto has made some positive developments in his treatment by the psychologist, this is a relatively recent development that has to be weighed against his history of offending, his previous relapse into offending behaviour and his predisposition to react angrily to conflict and perceived conflict; and
  5. Mr Taranto’s offending continued into his mature adulthood when he was 25 years of age.

Discussion

  1. [29]
    Mr Taranto was an honest witness.  He displayed insight into the causes of the earlier events resulting in the criminal convictions.   
  2. [30]
    I am satisfied he displayed genuine remorse and anguish at the pain and potential danger in which he placed his family and potentially members of the public.
  3. [31]
    In a very comprehensive report, the psychologist supports this insight and records the treatment steps Mr Taranto has undertaken to modify his responses.  This has resulted in the psychologist opining that Mr Taranto’s current risk of responding to life events aggressively, angrily or self-destructively is “average” compared to his age and gender peers.
  4. [32]
    I also place weight of the views of the witnesses called on behalf of Mr Taranto.  I found them to be honest and forthright in their assessment of his character while having full knowledge of the past events.
  5. [33]
    Mr Taranto says without a positive notice, his professional advancement and further study will not be achieved.  However, personal hardship is not a relevant factor when determining if the case is exceptional.[12]  
  6. [34]
    I am satisfied that Mr Taranto’s offending took place within the family environment and was an immature, uneducated response to the dynamics of his family life.  I am satisfied that Mr Taranto is not a risk to the public at large. Mr Taranto gained sufficient insight into his aggressive behaviour as he matured, deciding to remove himself from the triggers by moving out of his parent’s home.  
  7. [35]
    I am satisfied that Mr Taranto has further matured and with professional help, come to understand how to change his responses when faced with perceived injustices.  Mr Taranto’s family (his sister), his friends and his psychologist support this finding.  Mr Taranto’s evidence is that he now has a close warm relationship with his parents and this is supported by the evidence of his sister.  
  8. [36]
    I place no weight on the submission that he is not in a current personal relationship.
  9. [37]
    This review is conducted on the basis that the welfare and best interests of children are paramount.  When the risk and protective factors are weighted up, I am satisfied Mr Taranto’s protective factors in issuing him with an unrestricted positive notice outweigh the risk factors and the correct and preferable decision is that an exceptional case does not exist, such that a positive notice should be issued
  10. [38]
    The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children Act is set aside and replaced with the tribunal’s decision that there is no exceptional case

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act), s 354.

[2]Ibid, s 6, s 360.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 24.

[4]Working with Children Act, s 221.

[5][2011] QCATA 291.

[6]Ibid, [31].

[7]Ibid, [33].

[8][2004] QCA 492.

[9]Working with Children Act, s 5.

[10]   Report of Dr Walsh, [9.7.3].

[11]  Report of the psychologist, [9.6.5].

[12]Chief Executive Officer, Department of Child Protection v. Scott [No 2] [2008] WASCA 171, [109].

Close

Editorial Notes

  • Published Case Name:

    Toranto v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Toranto v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2017] QCAT 397

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    21 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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