Nekabiani v Director-General, Department of Justice and Attorney-General
[2017] QCAT 412
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- Nekabiani v Director-General, Department of Justice and Attorney-General[2017] QCAT 412
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Nekabiani v Director-General, Department of Justice and Attorney-General[2017] QCAT 412
Nekabiani v Director-General, Department of Justice and Attorney-General[2017] QCAT 412
CITATION: | Nekabiani v Director-General, Department of Justice and Attorney-General [2017] QCAT 412 |
PARTIES: | Maximus Nekabiani (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML107-17 |
MATTER TYPE: | Children's matters |
HEARING DATE: | 15 November 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 24 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for review of negative notice to work with children FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – whether exceptional case – whether in best interests of children to issue positive notice – where protective factors included ending of volatile relationship, working for almost two years without incident, references of interacting well with children and support network – where risk factors included involvement with domestic violence and contravention of Domestic Violence Order, whether applicant could respond appropriately to conflict and applicant’s focus on his own privacy and process itself – where applicant sought to justify and minimise involvement in offending behaviour – where applicant showed lack of understanding and insight into offending behaviour – where applicant failed to take sufficient steps to address factors contributing to his offending behaviour – where community expects those working with children to have deep understanding of impact on others of contravening Domestic Violence Order, to reduce likelihood of repeated behaviour – where applicant needs more time to develop insight into the impact of his behaviour on others sufficient to be authorised to work with children Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 167, s 221, s 226, s 360, Schedule 1, Schedule 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 Re TAA [2006] QCST 11 Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 |
APPEARANCES and REPRESENTATION (if any): |
|
APPLICANT: | Mr Maximus Nekabiani appeared in person |
RESPONDENT: | Ms Megan Goodall, Government Legal Officer instructed by Ms Susan Thomas, Government Legal Officer |
REASONS FOR DECISION
What is this Application about?
- [1]On 21 April 2017, the Director-General, Department of Justice and Attorney-General issued Maximus Nekabiani with a ‘negative notice’ to work with children. This means that Mr Nekabiani cannot obtain a ‘Blue Card’ to work in certain types of employment and volunteer work.[1]
- [2]Mr Nekabiani wants the Tribunal to review the Chief Executive’s decision. Because Mr Nekabiani is not convicted of any ‘serious offence’, he is entitled to be issued with a positive notice for a Blue Card unless his case is ‘exceptional’.[2]
- [3]In reviewing the Chief Executive’s decision that Mr Nekabiani’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for him to obtain a Blue Card.[3] To determine this, I must identify and balance protective factors with risk factors.[4]
Is it not in the best interests of children to issue a positive notice to Mr Nekabiani?
- [4]Because a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to Mr Nekabiani.[5]
- [5]Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[6]
What protective factors favour issuing a positive notice to Mr Nekabiani?
- [6]Mr Nekabiani is a 38-year-old making attempts to get on with his life after the end of his relationship with his former partner in 2014. He has been employed as a support worker helping those in need since 2015. He has qualifications in Home and Community Care and is completing studies in Aged Care.
- [7]Mr Nekabiani says his job is his life and certainly, he had been working for almost two years without incident and had never been accused of physical violence or abuse against teenagers or adults in his care. He enjoys a good rapport with his clients and would also appear to be a talented artist.[7]
- [8]Mr Nekabiani provided positive character references.[8] These attest to him interacting well with children, his willingness to help and his passion for his work.
- [9]Only two referred to any issues arising from his former relationship[9] and none referred to his history with police, including recent convictions for contravening police protection orders and domestic violence orders.
- [10]Two referees, Mrs Mary Cross and Ms Olivia de Villiers, gave oral evidence and confirmed their faith in Mr Nekabiani as a person. Mrs Cross said it was not in his nature to be nasty ‘unless pushed to the edge or stressed out’. When Ms de Villiers was asked whether Mr Nekabiani’s history with police and incidents of alleged violence changed her opinion of him, she said it did not as he had never displayed violent behaviour around her.
- [11]However, Ms de Villiers conceded that she had never observed Mr Nekabiani around children and expressed concern that a Domestic Violence Order made against Mr Nekabiani named a child a protected person.
- [12]Nevertheless, I am satisfied that the evidence shows that Mr Nekabiani has a support network who believes in him and he has shown himself to be a proven and capable person working with those in need and who can interact well with children.
What key risk factors prevent issuing a positive notice to Mr Nekabiani?
- [13]Mr Nekabiani works on his physique and is trained in martial arts.
- [14]Unfortunately, he also has a recent history of involvement with domestic violence. In July 2013, his former partner applied for a Protection Order alleging:
- In January 2013, Mr Nekabiani grabbed her by the back of the neck, squeezed her and whispered a threat to her;
- In February 2013, Mr Nekabiani kicked and bruised her thigh, elbowed her in the chest and threw liquid from a glass at her;
- In May 2013, Mr Nekabiani kicked her down the front stairs of her unit; and
- In June 2013, Mr Nekabiani punched the window of her vehicle and refused to leave the vicinity of her residence.
- [15]During the hearing, Mr Nekabiani denied the first two incidents and said in the second incident his former partner had attacked him and he merely held up his hands to stop the attack. He said he had no comment about the other incidents and instead talked generally about his former partner using Domestic Violence Applications for ‘any kind of kicking or touching’. He denied making any threats and said his former partner had always been threatening him.
- [16]Despite his denials, on 22 October 2014, Mr Nekabiani was convicted of contravening a domestic violence order on 30 March 2014, on 9 April 2014 and on 12 April 2014. On 23 October 2014, he was also convicted of contravening police protection notices on 31 March 2014, 2 April 2014 and 6 April 2014.
- [17]The contraventions entailed allegations of Mr Nekabiani slapping his former partner in the face, threatening to bash her, preventing her from leaving, visiting her home address and contacting her on a number of occasions after orders had been made. Mr Nekabiani’s former partner has a son who was 14 years old at the time who the Order also named as a protected person, although it was not suggested that Mr Nekabiani had acted violently towards him.
- [18]In his submissions to the Department over a period from 7 March 2016 to 31 January 2017, Mr Nekabiani relevantly stated:
- He did not understand why he could not ‘live free’ without having his relationship issues brought up;
- The police should not have shared private messages between him and his former partner;
- He had pushed his former partner but did not slap her;
- He knew he had a Domestic Violence Order against him but had contacted his former partner in an attempt to work out the relationship;
- His former partner continued to contact him despite him taking out a Domestic Violence Order against her;
- His former partner had attacked him on many occasions;
- He did not know what was wrong with his application as he had been working in the industry for eight years;
- It was all the fault of his former partner, who was no longer with him;
- On 30 March 2014, he and his former partner had become drunk and he pushed her in response to her kissing others;
- His former partner’s son had been present for a few of the altercations;
- If confronted with violence in the future, he would ‘walk away, go for a break, [focus on] work or exercise’; and
- He has moved on.
- [19]In his more recent submissions to the Tribunal, Mr Nekabiani reiterated his former partner’s attempts to contact him, providing text messages from her, expressed concern about the delay in processing his application and outlined the negative impacts not having a ‘Blue Card’ was having on him.
- [20]The Tribunal accepts that Mr Nekabiani’s relationship with his former partner was volatile with both parties contributing to its volatility. Both parties had Domestic Violence Orders against each other and his former partner appeared to inappropriately contact him after obtaining her own Domestic Violence Order against him.
- [21]However, this does not abrogate from the seriousness of Mr Nekabiani’s own actions and the need for him to accept responsibility for those actions. These included threats of physical harm to someone of considerably less strength than him, followed by at least actual pushing. At the time the Court issued the Domestic Violence Order, the police reported that Mr Nekabiani’s former partner ‘needs urgent protection from (him)’.[10]
- [22]This was not the first suggestion of violence by Mr Nekabiani, who had previously been convicted of possessing a martial arts weapon, nunchaku, during an alleged altercation while drinking at a licensed venue in 2010. Police had reported Mr Nekabiani’s behaviour as ‘aggressive’. During the hearing, Mr Nekabiani said this was because he had been upset and conceded that showing a weapon in public could cause fear in people nearby.
- [23]Threats of violence followed by actual violence to resolve conflict are unacceptable. Unfortunately, Mr Nekabiani’s evidence and submissions since his actions show a lack of understanding of this and why it is relevant to determining his suitability to work with children. He instead focused on minimising his involvement by seeking to transfer responsibility to his former partner and questioned the need for police involvement.
- [24]
- [25]However, the offending behaviour is still relatively recent and shows a pattern of Mr Nekabiani placing his own feelings above court orders and the feelings of others. Mr Nekabiani was aware that contacting his partner could risk exposing her 14-year-old son to further upheaval but still persisted.
- [26]Both before and during the hearing, Mr Nekabiani expressed concerns about how the hearing would impact on his privacy. This appears to have distracted him from the serious nature of the issue of domestic violence and in itself presents as a risk factor.
- [27]Moreover, by seeking to justify and minimise his involvement in the offending behaviour, Mr Nekabiani still lacks sufficient insight into the impact of his behaviour on others and the importance of abiding by the law, regardless of his own emotions. This is relevant to child-related employment.[13] Adult behaviours can harm children even when not directed towards them:
It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[14]
- [28]Regardless of his motives for contravening the Domestic Violence Order and attempts by his former partner to contact him, Mr Nekabiani cannot transfer responsibility for his contraventions of that Order once in place. He had an opportunity to oppose the Domestic Violence Order prior to its issue. The Court made the Order based on the evidence before it.
- [29]During the hearing, Mr Nekabiani explained that his contact with his partner after the Order to have no contact, was to apologise. He still did not appear to understand psychological impact of continuing unwelcome contact, the need to respect boundaries and the need to respect the law. Mr Nekabiani must abide by the Order once made. Instead of accepting responsibility for this, his evidence and submissions focused on his former partner’s actions.
- [30]The Tribunal cannot go beyond the convictions and must accept them as they are.[15] Moreover, Mr Nekabiani’s focus on minimising the physical aspects of his behaviour ignores the psychological and emotional impact of his contact on his former partner and her child. The community must be confident that Mr Nekabiani is aware of the psychological and emotional impact of his behaviour on others sufficient to work with children, even when he himself is feeling emotional. He must show restraint and exercise self-control, particularly when children are present.
- [31]Mr Nekabiani did identify walking away, taking time to calm down and talking to people he trusts as non-violent coping strategies and said he had moderated his alcohol consumption. He also said he was aware of the need to protect children from violence.
- [32]However, although it is just over three years since the most recent violence, he provided no other evidence of steps he has taken to address factors that might have contributed to his behaviour such as anger issues and alcohol. He did not provide evidence of participation in alcohol and anger management programs or other counselling, psychometric testing or formal assessment of his current suitability to work with children.
- [33]When asked what he had learnt from his workplace conflict course, Mr Nekabiani only talked about lessons for his friends and clients – he did not say what he had learnt to apply to his own relationships. Perhaps this is because Mr Nekabiani said that he was the victim in the relationship and that he had been the victim of domestic violence.
- [34]The first step in personal growth is to admit the need for change. This requires examining one’s own behaviour and a level of self-reflection that can be painful and confronting – but necessary:
A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[16]
- [35]Mr Nekabiani was unable to identify any triggers for his offending behaviour or strategies to prevent it, nor any underlying issues relating to anger management or alcohol use. He regretted his former relationship but expressed no remorse for any of his actions other than what he described as ‘pushing’ (which he said he did because he was in an unhealthy relationship). Instead, he focused on his former partner’s behaviour and his own hardship that he attributed to her and this process.
- [36]The process of applying for a Blue Card is about assessing Mr Nekabiani’s suitability to work with children. The process serves the best interests of children. Any inconvenience from that process is a price the community is willing to pay to protect its children.
- [37]Unfortunately for Mr Nekabiani, his current limited insight into the seriousness of his past behaviour, contraventions of the domestic violence order and the impact of his behaviour on others, together with his failure to undertake sufficient steps such as formal counselling or other programs to address contributing factors and to help him control his emotions are risk factors that presently outweigh the protective factors.
- [38]The Tribunal is of the view that Mr Nekabiani needs some more time to reflect on his actions and its effects, continue his coping strategies and gain the community’s trust sufficient for him to be authorised to work with children.
Is this an ‘exceptional case’ to not issue a positive notice to Mr Nekabiani?
- [39]The law requires that in considering whether to issue a person a positive notice for a ‘Blue Card’, the interests of children must take priority over an applicant’s interests.
- [40]Domestic violence is a scourge that takes many forms, extending beyond actual physical violence into the realms of psychological and emotional abuse. Being aware of this and how contravening a Domestic Violence Order impacts others and the importance of abiding by the order means a person is less likely to repeat the behaviour, when subjected to similar stressors.[17]
- [41]The community rightly expects those working with children to have the deepest understanding of this, as children depend on adults to have insight into their actions and their likely effect.[18] Because Mr Nekabiani needs more time to develop this understanding, her case is ‘exceptional’ and prevents issuing him with a positive notice for a ‘Blue Card’.
Conclusion
- [42]Issuing Mr Nekabiani with a positive notice at this time is not in the best interests of children.
- [43]The correct and preferable decision is therefore to confirm the decision of the Director-General, Department of Justice and Attorney-General on 21 April 2017 to issue Maximus Nekabiani a negative notice.
- [44]Mr Nekabiani has the potential to offer much to the community. His pursuits of art and gardening and work in the community care industry show positive expressions of his passion and energy, and from which he appears to derive therapeutic benefits.
- [45]With self-reflection and more time to develop insight into his previous behaviour and how he might redress it, and then taking positive steps to redress it, Mr Nekabiani might demonstrate that he should be eligible for a positive notice for a ‘Blue Card’ in the future.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156 and Schedule 1.
[2] Ibid, s 226.
[3] Ibid, s 221.
[4] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[5] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360.
[6] Ibid, s 6(b).
[7] Bundle of photographs attached to Applicant’s Submissions.
[8] Letter of Teresa Doan dated 18 May 2017, Reference of Kate Murphy dated 9 August 2017, References of Mary Cross dated 3 March 2016 and 6 August 2017, Reference of Michelle Ammala dated 3 March 2016, Reference of Christina Tavita dated 4 March 2016, Reference of Natasha Ross dated 5 March 2016, Reference of Nicole Kennedy dated 5 March 2016, Reference of Adib Jaben dated 6 March 2016, Reference of Judy Jones dated 7 march 2016, Reference of Luis Rivera dated 10 May 2017, Reference of Irene and Frank Burkin dated 9 May 2017, Reference of William Crawford dated 12 May 2017, Reference of Olivia de Villiers dated 12 May 2017.
[9] Reference of Kate Murphy dated 9 August 2017, Reference of Mary Cross dated 6 August 2017.
[10] Queensland Police Service Court Brief dated 14 January 2016.
[11] Working with Children (Risk Management and Screening) Act 2000, s 167, S 226(2)(a)(ii), Schedule 2.
[12] Ibid, s 226(2)(iv).
[13] HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [65].
[14] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [61], [67].
[15] Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257, [37].
[16] Re TAA [2006] QCST 11.
[17] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.
[18] Ibid.