Grealy v Director-General, Department of Justice and Attorney-General
[2018] QCAT 2
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- Grealy v Director-General, Department of Justice and Attorney-General[2018] QCAT 2
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Grealy v Director-General, Department of Justice and Attorney-General[2018] QCAT 2
Grealy v Director-General, Department of Justice and Attorney-General[2018] QCAT 2
CITATION: | Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2 |
PARTIES: | Thomas Damien Grealy (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML214-16 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 26 July 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
DELIVERED ON: | 10 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – General administrative review – Blue Card – where negative notice issued – whether an exceptional case – where convicted of offences other than a ‘serious offence’ – weighing protective factors against risk factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 318, s 353, s 354, s 358, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES: |
|
APPLICANT: | Thomas Damien Grealy |
RESPONDENT: | Director-General, Department of Justice and Attorney-General |
REPRESENTATIVES: |
|
APPLICANT: | represented by Mr P.G. Arthur of Counsel |
RESPONDENT: | represented by Mr I McCowie, Legal Officer |
REASONS FOR DECISION
- [1]In December 2015, Mr Grealy applied for a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act) to allow him to work at schools as a groundsman. In April 2016, he was invited to make submissions about his police information. The application was refused and a negative notice issued.
- [2]Mr Grealy seeks review of the decision made 26 July 2016 that an exceptional case exists in which it would not be in the best interests of children for a positive notice to be issued. Such a decision is a chapter 8 reviewable decision under the Act, which the Tribunal may review.[1]
- [3]The Tribunal is to consider the matter afresh and decide the matter on its merits. The purpose of the review is to produce the correct and preferable decision.[2] In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[3]
Is Mr Grealy’s an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?
- [4]I find that Mr Grealy’s case is not ‘exceptional’ and set aside the decision of 26 July 2016.
- [5]The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[4] The Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[5]
- [6]
- [7]A positive notice must issue unless the Chief Executive, or the Tribunal in the Chief Executive’s place, is satisfied that it is an exceptional case, in which it would not be in the best interests of children for the Chief Executive to issue a positive notice.[8]
- [8]The Act does not define what is an ‘exceptional case’. The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[9] The Court of Appeal accepted that identifying and weighing risk factors and protective factors was an appropriate approach and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
- [9]Section 226 of the Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence. I address the considerations below.
- [10]Mr Grealy has not been charged with or convicted of a ‘serious offence’.
- [11]He has been charged with and been convicted of a number of offences over the period 2005 - 2017 with and without convictions being recorded relating to conduct during the period 2004 - 2017. Fines ranging from $200 - $2500 were imposed. On some occasions probation periods were ordered, community service was ordered, he was disqualified from holding a driver’s licence and on one occasion, an imprisonment sentence of two months imposed was suspended for six months.
- [12]In a number of instances, the charges were dismissed, as no evidence was offered. I place little weight upon those charges.
- [13]Mr Grealy, to his credit, voluntarily disclosed that on 26 June 2017 he plead guilty to a charge of unlicensed driving, was fined $400 and his driver’s licence was suspended for six months.
- [14]There is no evidence that any of the offences directly involved children.
- [15]The Chief Executive contends that Mr Grealy has an ongoing and frequent history of drug, property, dishonesty and miscellaneous offending spanning more than 10 years, from 19 years of age to mature adulthood. The Chief Executive points out that the offending has not ceased despite the imposition of fines, probation and a suspended prison term and that his ongoing anti-social behaviour suggests he is not capable of presenting a positive role model for young children i.e. one that models honesty, integrity and respect for the law. Of concern is that the most recent conviction appears to have related to conduct after these review proceedings had commenced.
- [16]Further, the Chief Executive contends that the written evidence suggests that Mr Grealy has an ongoing propensity for unlawful behaviour as it shows little remorse or insight into his offending and does not suggest an understanding of the triggers which lead to the offending nor that he has sufficiently addressed them to avoid a re-occurrence of the behaviour in future.
- [17]The Tribunal received information in relation to Mr Grealy as described under section 226 (2)(b) as to why a charge for the offence of robbery with violence on 1 May 2011 was discontinued.[10] The information disclosed that the Crown determined that there was insufficient evidence to prove that Mr Grealy was involved in the offence as they were not able to prove he had any knowledge of the offence.
- [18]The Tribunal did not receive information or reports in relation to Mr Grealy as described under section 226 (2)(c) – (d) of the Act nor reasons for decisions in respect of his convictions. The Chief Executive submits that the penalties imposed reflect the gravity with which the Court viewed the offences.
- [19]I may consider all matters relevant to whether a particular case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue and not only those listed in section 226(2) of the Act.
- [20]The evidence is, and I accept, that Mr Grealy:
- experienced some educational difficulties, which lead to him feeling marginalised and which adversely impacted his self-esteem, resulting in acting out, associating with other marginalised students, being suspended from school and experimenting with drugs.
- was stabbed when 18 years of age at a party resulting in an aversion to big crowds and a degree of social isolation for a couple of years.
- completed a painting apprenticeship some time ago and has been in regular work as a painter since the decision under review meant that he was unable to continue as a groundsman at schools.
- [21]I accept that Mr Grealy has been voluntarily undertaking a formal drug rehabilitation programme, which commenced in or about June or July 2015 to assist with his drug addiction. The evidence is that he had previously unsuccessfully attempted to stop using drugs without assistance but through the formal programme his drug use had stabilised. I accept his evidence that he had not taken drugs for the previous two years and he was working toward completing his rehabilitation programme during 2017.
- [22]During his oral evidence, Mr Grealy:
- admitted that he processed information ‘a bit slower’ than others.
- acknowledged that he had some difficulties in expressing his thoughts and that he had had difficulties, in the past, with reading.
- expressed regret for his criminal behaviour, acknowledged he had made a lot of bad choices, many of which were made whilst intoxicated or on drugs.
- stated that he had attending counselling sessions whilst on probation, which helped him to recognise the triggers for his drug use and intended to undertake further sessions.
- showed insight into the reason he started using drugs i.e. boredom and to escape from self-esteem problems and learning difficulties.
- showed insight into the affect taking drugs had upon him, including that it affected his attention span and motivation, impacted upon his working life and mental health. He also showed insight that it had affected people around him.
- showed insight into the affect his offending had on the victims, the wider community and his family.
- acknowledged that he stopped taking drugs and drinking to excess only once he accepted he had a problem, despite friends and older people he looked up to discussing it with him earlier.
- explained the steps he had taken to turn his life around, including:
- changing his routine;
- going to work every day;
- going to sleep early so that he can get up to go to work (acknowledging that he can’t stay up drinking as he needs to get up the next morning to go to work);
- having fewer drinks;
- going to the pharmacy each day for his programme dosage and going to his doctor every fortnight;
- doing a detailed health/wellness plan and was considering engaging with other health professionals;
- not associating with the people he used to take drugs with;
- keeping occupied to deal with boredom.
- expressed his desire to change, to ‘do the right thing by his family and everyone who supports’ him and be an honest citizen.
- described his life as more stable.
- stated that he felt more fulfilled and a lot happier and had plans for his future.
- acknowledged that there was more hard work to be done and things he needed to work on, such as developing better social skills, but it was now easy to say no when he was offered drugs.
- stated that in the event he found himself in difficulty he would turn to his family and friends and talk to his doctor.
- explained his most recent offending i.e. driving whilst unlicensed occurred because he had incurred a one point penalty but had not properly checked how many points he then had. He erroneously believed his open licence, with 12 points, had recommenced (as distinct from holding a probationary licence with one point). He acknowledged that he was at fault in not properly checking before driving.
- stated that while working as a groundsman he had had limited contact with children, he kept himself neat and tidy and went about his business.
- stated that he believed the penalties imposed for the various offences had been a deterrent to his re-offending as they had made him scared that he would go to jail.
- stated that his ‘SPER’ debt had got as high as about $8,000 but he was paying it off and that it was down to about $2,000.
- [23]The evidence, is and I accept, that he has the support of both his parents and three siblings, has been living with his mother for about 3 or 4 years and it is proposed that those living arrangements will be ongoing.
- [24]I regard the steps taken, the insights displayed and the support Mr Grealy seeks and receives are substantial protective factors.
- [25]Mr Grealy’s mother, gave corroborating evidence of the changes Mr Grealy has implemented in the last few years, the improvements to his motivation and self-esteem, the regret he has and his reflections about his previous behaviours.
- [26]Mrs Grealy also gave evidence that:
- she has been involved in the education sector for many years and is well versed in child protection issues and through mandatory training is aware of what to look for;
- Mr Grealy’s self-esteem and resilience is now high and in her opinion he is not likely to re-offend and is no danger to children.
- [27]Significantly, the principal of the primary school where Mr Grealy was previously employed as a groundsman gave evidence that:
- she had known Mr Grealy’s family for 25 years (through working with Mr Grealy’s mother) and had particularly got to know Mr Grealy in the last three years, when he worked for her;
- his interactions whilst an employee were very professional and he presented well;
- the school groundsman role did not require much interaction with the children;
- he was a highly valued and a model employee, showed initiative, was hard working and his confidence demonstrably grew whilst employed;
- he made a good impression on the parents such that the P & F wished to extend his employment;
- she had worked in the catholic education system for approximately 32 years, was well versed in child safety issues and didn’t have any concerns about Mr Grealy working in a school environment based upon the respectful interactions with stakeholders she had observed;
- she had observed him both as his supervisor at school and through regular contact during social visits with his mother (approximately once a month). She had seen him turn his life around with the realisation that he has potential and the ability to make a positive contribution. Physically he had lost weight and seemed fitter, he made more eye contact and was able to better articulate his thoughts.
- she is aware of the transferability of a ‘Blue Card’ and it didn’t give her any cause for concern.
- in her opinion he was not a threat to children now.
- [28]A long standing family friend, who has been involved in the education sector for many years at very senior levels, gave evidence that:
- through various roles he has undertaken he had significant experience with child safety policies and procedures and mandatory reporting requirements.
- he had observed Mr Grealy several times a year at various family functions over many years where extended family and in particular younger cousins were present.
- he had discussed with Mr Grealy his desire to get back on track through undertaking the voluntary rehabilitation programme and was of the view he had learnt from his past behaviour and wanted to put it behind him.
- he was of the opinion that Mr Grealy had matured and did not present any danger to children.
- he was aware of the most recent conviction for unlicensed driving and it did not give him any concern that Mr Grealy would be a danger to children.
- he is aware of the transferability of a ‘Blue Card’ and in his opinion Mr Grealy being a danger to children was highly unlikely.
- a structured work environment, such as a school, would be of benefit to Mr Grealy, who has a slight intellectual impairment.
- [29]The Chief Executive submits, and I accept, that any detriment to Mr Grealy of not being granted a ‘Blue Card’ and any benefit of being granted a ‘Blue Card’ are not relevant considerations. The taking into account of the police history is not in the nature of seeking to re-prosecute the offences, it is relevant to protecting children.
- [30]I accept Mr Grealy’s evidence that at the time of the most recent offence he was of a genuine but mistaken belief that he was licensed to drive and that it was not a deliberate or wilful disobedience. The next most recent conviction was in October 2014 in respect of offences committed in late 2013 and January 2014. The evidence is, and I accept, that Mr Grealy has taken significant steps to turn his life around since that offending.
- [31]The Chief Executive submits, and I agree, that Mr Grealy’s grounds for review would be greater if he had taken further steps in his rehabilitation and engaged with additional health professionals such as a counsellor and dietician. However, his and his mother’s evidence is that he planned to use such other services and that it was just a matter of making appointments.
- [32]Weighing the protective factors in this matter against the risk factors, I am not satisfied that this is an exceptional case, where it would not be in the best interests of children to issue a positive notice. The Chief Executive’s decision is set aside.
Footnotes
[1] Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act), s 353, s 354.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (QCAT Act).
[3] Ibid, s 24.
[4] The Act, s 5.
[5] Ibid, s 6.
[6] Ibid, s 358.
[7] Ibid, s 360.
[8] Ibid, s 221.
[9] [2004] QCA 492.
[10] The Act, s 318.