KTD v Director General, Department of Justice and Attorney General
[2018] QCAT 293
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- KTD v Director General, Department of Justice and Attorney General[2018] QCAT 293
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KTD v Director General, Department of Justice and Attorney General[2018] QCAT 293
KTD v Director General, Department of Justice and Attorney General[2018] QCAT 293
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | KTD v Director General, Department of Justice and Attorney General [2018] QCAT 293 |
PARTIES: | KTD (applicant) |
| v |
| DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO: | CML240-17 |
MATTER TYPE: | Children matters |
DELIVERED ON: | 3 September 2018 |
HEARING DATE: | 8 June 2018 |
HEARD AT: | Townsville |
DECISION OF: | Member Pennell |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – review of a decision to refuse to cancel a negative notice – applicant convicted of the serious offence of bestiality – applicant requires a positive notice to complete a university degree – whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – exercise of discretion when making a non-publication order – identity of applicant – whether it is in the interests of justice to identify the applicant Criminal Code Act 1899 (Qld), s 211 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 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 Kent v Wilson [2000] VSC 98 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 Re Perry and Brown's Patents (1930) 48 RPC 200 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | C. Borger, Legal Officer |
Respondent: | Self represented |
REASONS FOR DECISION
- [1]The applicant was born in Europe. In 2003 she met her ex-husband on the internet. They later married, and she immigrated to Australia in 2006.[1]
- [2]On 28 October 2011, police received information from the applicant's ex-husband in relation to video footage depicting the applicant and the family dog. He gave the police a memory card which contained three video files. Each of those video files contained graphic pornographic video footage of explicit sexual acts between the applicant and the family dog over a two-day period in June 2011.
- [3]Subsequently, the police executed a search warrant at the applicant’s residence and seized the home computer and a laptop. Further video evidence was contained on the hard drives of those computers showing explicit sexual activity between the applicant and the family dog between January 2011 and March 2011.
- [4]The evidence seized by the police showed the applicant in various stages of undress and acting with abhorrent behaviour by enticing the family dog to have sex with her. She actively participated with the animal by physically masturbated and assisting the dog’s penis to penetrate her vagina and mouth. She also allowed the dog to perform oral sex on her.
- [5]Overall, the evidence seized by the police revealed eight separate incidents between January 2011 and June 2011 where the applicant engaged in sexual activity with the family dog.
- [6]The applicant declined to be interviewed by the police about her involvement and was arrested and charged with the offence of bestiality.[2] She was later indicted to appear in the District Court where she entered a plea of guilty.[3] In sentencing the applicant, his honour, Chief Judge O'Brien DCJ said: –
"……the sentence I impose should be one which, as a head sentence anyway, would reflect the undoubted abhorrence with which the community would regard this sort of offending. There are concerning features of this case that have been identified by the learned Crown Prosecutor who says that this was sustained offending and you seem apparently to be an enthusiastic participant in what was occurring”.[4]
- [7]At the time of her offending, the applicant was the holder of a positive notice and blue card.[5] Following her conviction, the applicant’s positive notice and blue card were cancelled, and she was issued with a negative notice. The applicant now seeks a decision from the Tribunal to cancel that negative notice.
The legislative pathway
- [8]The objects of Working with Children (Risk Management and Screening) Act 2000 (“the Working with Children Act”) are to promote and protect the rights, interests and wellbeing of children in Queensland.[6] The principles in which the Working with Children Act are to be administered is that the welfare and best interests of the children is paramount. The wellbeing of children should be promoted, and every child is entitled to be cared for in a way that protects that child from harm.[7]
- [9]It is not the intention of the Working with Children Act to impose additional punishment on someone who has acquired police or disciplinary information, but rather its central focus is to put gates around employment so as to protect children from harm. The intent of the Working with Children Act is to protect children from future abuse; not to punish people twice.[8]
- [10]In assessing whether it is appropriate to issue an applicant with a negative or a positive notice, there are a number of considerations that the respondent is obliged to undertake before arriving at a decision whether an exceptional case exists. Those considerations include whether an applicant has been the subject of an investigation or has been prosecuted, and whether the facts, evidence or information of the investigation suggest that it is not in the best interests of children for the issuing of a positive notice.
The Tribunal’s Role
- [11]If the respondent issues a negative notice, a person affected by that decision can apply to the Tribunal for a review of the decision.[9] Any review must be undertaken by applying the principle that the welfare and best interests of children is paramount[10] and it must be undertaken by way of a fresh hearing on the merits of the application.[11]
- [12]
- [13]In reaching the correct and preferable decision, the Tribunal has the discretion to either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for consideration to the original decision maker with directions the Tribunal considers appropriate.[14]
Exceptional Case Discussion
- [14]Whether the circumstances of a person’s case would render it an exceptional case is the threshold to be applied when the Tribunal is deciding whether an applicant should be issued with a positive notice. In applying that principle, regard must be given to the intent, purpose and design of the legislation[15] and the Tribunal need only weigh up the competing facts and apply the balance of probabilities principle.[16]
- [15]Although the term “exceptional case” is not defined in the Working with Children Act, the phrase has been the subject of many previous discussions in a variety of jurisdictions, including the Tribunal’s own appeal jurisdiction. An exceptional case is a question of fact and degree to be decided in each individual case and is a matter of discretion.[17]
- [16]In exercising that discretion and deciding whether an exceptional case exists, the Tribunal is required to bear in mind the gravity of the consequences involved if a positive notice and blue card were to be issued.[18] Guidance has previously been provided to the Tribunal that it would be most unwise to lay down any general rule about what an exceptional case is because all these matters are matters of discretion[19] and each case should be considered on its own facts.
- [17]Having regard to the relevant discussions on the term exceptional case, if the respondent decides that a case is exceptional because of the criminal history of the person, or because of an event that occurred involving that person, then justification may exist if that determination and refusal to issue a positive notice and blue card was made in the best interests of children.[20]
Applicant’s personal circumstances
- [18]The applicant told the Tribunal that over many years she was the subject of domestic violence inflicted upon her by her ex-husband. After separating from him, she underwent a further three years of emotional abuse because of his persistent domestic violent behaviours. This included threats towards her and breaches of a domestic violence protection order which named him as the respondent and the applicant as the aggrieved. She told the Tribunal that he was sentenced to a term of imprisonment for his behaviour and also subjected to a restraining order preventing him from having any contact with her.
- [19]She said that she finds it hard to identify with the person she was in the past, and in the time since she was convicted there has been a significant change to her life, which she said was for the better. She has now remarried and has commenced studies to educate and improve herself. In October 2015 she undertook the role of director in her family business and in January the following year she enrolled in a Diploma of Business with a local College.
- [20]In May 2016 she enrolled in a Diploma of Community Services (Case Management). In more recent times she has enrolled in a university and is undertaking studies to complete a Bachelor of Social Work. It is not disputed by the respondent, and I accept that the applicant has made significant attempts to improve her life through those studies.
- [21]When asked why she wanted a blue card, the applicant said that she needed the positive notice and blue card so that she could complete her university studies. It was a pre-requisite for the completion of her degree that she be the holder of a blue card. Without the blue card she could not undergo any work placement, which is an essential component of the studies.
- [22]However, the applicant went on to tell the Tribunal that she was not interested in working in the area of young children. This was because of the death of her daughter in 2015 and she feels that she would never be able to work in employment areas relating to children. She made that decision not because she was a risk to children, but rather because she could not cope with the emotional stress of engaging with children. She went onto say that apart from needing the blue card to finalise her studies, her only other need for the blue card was for volunteering work with her church.
- [23]She told the Tribunal that she has received intensive psychological therapy which helped her to battle depression and Post Traumatic Stress Disorder (“PTSD”). That counselling initially took place between November 2011 and March 2012 where she consulted with a psychologist on nine occasions.
- [24]A report was generated from that counselling which she used to mitigate her sentencing in the District Court.[21] Although the applicant said that she still suffers from PTSD, it seems that after being sentenced she disengaged with any counselling and only reengaged in March 2018. She now consults with a psychiatrist once every four weeks.
- [25]There was no independent report provided to the Tribunal and no other corroborating evidence as to the applicant’s current level of engagement in the counselling, or any assessment reached by the treating psychiatrist. Consequently, it is unclear how the applicant will deal with a similar situation in the future if she were to be in another violent relationship, particularly given that she endured the abusive relationship of her ex-husband for a number of years.
- [26]I am of the view that the question is not whether the applicant should be issued with a positive notice and a blue card which would allow her to complete her studies, but rather whether the applicant’s circumstances allows the Tribunal to reach a conclusion that there is an exceptional case in which her attaining a blue card would not harm the best interests of children.
Conclusion
- [27]The Working with Children Act places a barrier to people with a conviction for a serious offence from working with children. The proper inference that must be drawn is that would it harm the best interests of children for someone with a conviction for a serious offence to work with children, unless it is an exceptional case.
- [28]The criminal offence of bestiality is categorised within the Working with Children Act as a serious offence.[22] That categorisation is an indication from the legislators that if an applicant has been convicted of a serious offence, then careful consideration should be given when undertaking an assessment of their eligibility to work with children and young people.
- [29]The applicant argues that notwithstanding her involvement in, and conviction for the serious offence, she has made significant improvements and changes to her life which includes furthering her education and re-marrying. I accept that. I also accept that during the passage of time she has remained offence free and has no other recorded entries to her criminal history.
- [30]However, those improvements and charges which amount to her now living a life in a law-abiding manner and functioning in the community are at a level expected of a person of her stage and age in life. Changes in a person's circumstances which amounts to them living in a law-abiding manner as society expects is generally considered not to be exceptional because this is how society expects a person to behave after they have been punished by a term of imprisonment.[23]
- [31]Notwithstanding that, I accept that the applicant was involved in a domestically violent relationship with her ex-husband, however I was troubled by the blame shifting exercise undertaken by her when she spoke of her involvement in the serious offence for which she was convicted.[24]
- [32]She attributed her involvement in the serious offence wholly on her ex-husband. She said that he forced her to undergo degrading behaviour, including engaging in sexual intercourse with the family dog. The applicant added that out of shame, she did not disclose this to the police during the many occasions she telephoned for assistance. Documentation provided to the Tribunal by the Queensland Police Service shows that the sexual acts between her and the family dog occurred on eight separate occasions between January 2011 and June 2011, however during that time police only went to her house once and that was to serve a summons, not for a domestic violence complaint.
- [33]Despite what the applicant told the Tribunal, when the offence was discovered by the police, she was provided with an opportunity to fully disclose what had been occurring but failed to do so. All of that suggests that she has not fully accepted responsibility for the repugnant sexual offences she committed against her own pet. It further suggests that she lacks insight into the degree of harm and associated domestic violence her children were exposed to during her relationship with her ex-husband.
- [34]I do not accept the applicant’s contentions that she only engaged in the sexual acts with the family dog because she was under the influence of her domestically violent ex-husband. The only view that I can reach on the evidence is that she was primarily an active participant in the serous offence and that is confirmed by the material produced to the Tribunal by the Queensland Police Service and her own plea of guilty in the District Court.
- [35]It should also be noted that while the applicant’s offending behaviour was not committed against a child, or directed in any way towards any child, the serious offence did occur in the family home where her children lived. Her behaviour at that time raises serious concerns about her ability to recognise and maintain appropriate sexual boundaries, particularly with respect to vulnerable people such as children.
- [36]I consider that in the absence of any significant mitigating circumstances, any person who engages in sexual activity with a vulnerable animal in those circumstances is not an appropriate person to hold a blue card. I am also of the view that the respondent correctly arrived at the determination that the applicant's offence was one of sexual deviancy and indecency. This of course remains of significant concern in any assessment of the applicant’s eligibility to hold a positive notice and blue card.
- [37]In conclusion, I am satisfied that the correct and preferable decision in this matter is to confirm the decision made by the respondent.[25]
Non-publication order
- [38]Because of the nature and sensitivity of matters involving children, consideration should always be given by the Tribunal to de-identifying applicants who are seeking a positive notice relating to a blue card.
- [39]The Tribunal has the discretion to prohibit the publication of the contents of any document or thing produced to the Tribunal, or evidence given at the Tribunal hearing, or other information that might enable a person who appeared before the Tribunal to be identified.[26] However, before taking that step, the Tribunal must reach a conclusion that any order relating to non-publication is necessary to protect the identity of those people who appear in the proceedings, or their identity might otherwise be discovered if that order was not made. The Tribunal must also consider whether the making of the order would avoid, amongst other things, the publication of confidential information; or information whose publication would be contrary to the public interest.
- [40]I am satisfied that it is necessary to make a non-publication order in relation to these proceedings. This would avoid the publication of confidential information; or information whose publication would be contrary to the public interest and I am of the view that it would not be in the best interests of the applicant for her to be identified.
Decision
- [41]The Tribunal orders that: –
- The decision by the Director General, Department of Justice and Attorney General dated 31 August 2017 to refuse to cancel the applicant’s negative notice is confirmed.
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the publication of the identity of the applicant is prohibited.
Footnotes
[1] The applicant’s Australian citizenship was not acquired until 10 December 2015.
[2] Criminal Code Act 1899 (Qld), s 211.
[3] Sentenced on 7 September 2012.
[4] Sentencing remarks of Chief Judge of the District Court, Judge O'Brien DCJ at page 2. The Applicant was sentenced to six months imprisonment, wholly suspended for an operational period of 18 months.
[5] Issued on 11 May 2012 and due to expire on 11 May 2015.
[6] Working with Children (Risk Management and Screening) Act 2000, s 5.
[7] Working with Children (Risk Management and Screening) Act 2000, s 6.
[8] Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard, 14 November 2000 at p. 4391.
[9] Working with Children (Risk Management and Screening) Act 2000, ss 353 and 354.
[10] Working with Children (Risk Management and Screening) Act 2000, s 360.
[11] Queensland Civil and Administrative Act 2009, s 20(2).
[12] Queensland Civil and Administrative Act 2009, s 20(1).
[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
[14] Queensland Civil and Administrative Act 2009, s 24(1),
[15] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] citing Kent v Wilson [2000] VSC 98 at [22] per Hartigan J.
[16] The Briginshaw test as provided in Briginshaw v Briginshaw (1938) 60 CLR 336.
[17] FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 at [18].
[18] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] applying the Briginshaw test as provided in Briginshaw v Briginshaw (1938) 60 CLR 336.
[19] Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [34] endorsing the observation made by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 that particular attention should be paid to the warning given in the frequently cited definition of “exceptional case” which arises out of Justice Luxmoore’s comments in Re Perry and Brown's Patents (1930) 48 RPC 200.
[20] Working with Children (Risk Management and Screening) Act 2000, s 221.
[21] Exhibit 4.
[22] Working with Children (Risk Management and Screening) Act 2000, Schedule 2.
[23] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [47].
[24] Exhibit 6. Disclosed documents from the Queensland Police Service reveal that the applicant was nominated as the aggrieved in seven reported domestic violence related incidents between 2006 and 2010.
[25] The decision made by the respondent to refuse to cancel the applicant’s negative notice was made on 31 August 2017.
[26] Queensland Civil and Administrative Tribunal Act 2009, s 66.