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Howard v Director-General, Department of Justice and Attorney-General[2018] QCAT 74

Howard v Director-General, Department of Justice and Attorney-General[2018] QCAT 74

CITATION:

Howard v Director-General, Department of Justice and Attorney-General [2018] QCAT 74

PARTIES:

Gary Howard

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML226-17

MATTER TYPE:

Childrens matters

HEARING DATE:

15 March 2018

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

21 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 24 August 2017 to refuse to cancel Mr Howard’s negative notice is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 236, s 353, s 354, s 358

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

Re FAA [2006] QCST 15

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES:

 

APPLICANT:

Mr Howard appeared for himself

RESPONDENT:

Mr Iain McCowie represented the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, to refuse to cancel a negative notice issued to Mr Howard.
  2. [2]
    A check undertaken by Blue Card Services disclosed that Mr Howard has the following criminal history:
    1. a)
      On 15 January 1998, Mr Howard was convicted and fined $300 for breach of a domestic violence order. The breach took place on 6 December 1997. The police brief records that Mr Howard was involved in a heated argument with his girlfriend. Mr Howard threw a cup of tea over the kitchen wall, locked himself in the bedroom and damaged a bathroom door. Officers were called when Mr Howard had a further argument with his girlfriend about him taking a bed when he left the home. Mr Howard continued to argue with his girlfriend after the police arrived. A domestic violence order had been issued on 10 March 1997, although Mr Howard denied knowledge of this at the time.
    2. b)
      On 6 August 2015, Mr Howard was fined $500 with no conviction recorded for the following offences:
  1. i)
    Assault occasioning bodily harm which took place on 2 May 2014. The police brief records that Mr Howard attended the home of his father-in-law and mother-in-law to visit his children. After spending about fifteen minutes with his children Mr Howard repeatedly asked to see his former wife, and engaged in a heated discussion with her parents. Mr Howard refused to leave the home and scuffled with his former mother-in-law. Mr Howard then pushed his father-in-law in the chest when he attempted to intervene, pushing him backwards into some furniture. Mr Howard refused to leave the home and pushed his father-in-law twice more in the chest forcing him to fall against the front door, leaving dents in the wall. Mr Howard then struck his father-in-law on the mouth, splitting open his upper lip drawing blood. Police observed that the complainant had noticeable swelling, a deep cut to his lip, and difficulty speaking due to the swelling. Mr Howard's father-in-law needed medical treatment, including two stitches for his injuries.
  2. ii)
    Contravention of a domestic violence order which took place between 9 June 2014 and 15 September 2014. The police brief records that Mr Howard breached the order requiring him not to have contact with his former wife by sending text messages to her on 18 occasions.
  1. c)
    On 2 October 2015, Mr Howard was placed on probation for 9 months with no conviction recorded for the following offences:
  1. i)
    Contravention of a domestic violence order which took place on 3 February 2015. The police brief records that the police received a complaint about a website containing information about Mr Howard's family law proceedings involving his former partner. The website included pictures of their children, statements, letters from lawyers and government agencies addressed to Mr Howard. A protection order made on 22 September 2014 by the Southport Magistrates Court prohibited Mr Howard from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of, or make comments concerning his former wife. The homepage for the website included a statement in which Mr Howard acknowledged that “this website would be considered a breach of the DVO order, I expect it to be taken down and arrested for it.” In an interview with the police, Mr Howard stated that he was aware of the website, agreed that it was a “fair call to say that the website was his” and that while Mr Howard would not state that he was the owner of the website, it was “pretty blatant obvious” and went on to state that the site was a “bit of a release.”
  2. ii)
    Contravention of a domestic violence order which took place on 23 February 2015. The police brief records that Mr Howard sent the school employing his former mother-in-law, a protected person in a Protection Order, three email messages about his former mother-in-law. The emails included a link to a video allegedly showing footage of an incident in which Mr Howard claimed his former mother-in-law, in staff uniform, was acting violently in front of children, and commenting adversely about her actions and how they reflected on the school's image. Mr Howard's former mother-in-law indicated to her employer and the school that she was distressed by these actions and security were stationed outside her classroom. In an interview with police, Mr Howard admitted sending the emails and stated that he felt the footage in the video was unbecoming of the school's employees, and that he wanted to show the school the complainant's true character. Mr Howard admitted to knowing that this would cause discomfort to his former mother-in-law, and stated that he had waited a year before sending it as he had hoped that she would have a change of heart.
  3. iii)
    Failure to appear in accordance with an undertaking on 21 July 2015.
  1. d)
    On 2 October 2015, Mr Howard was fined $250 with no conviction recorded for failing to return his blue card and positive notice by 3 February 2015. The police brief records that Howard was required to return his positive notice and blue card after his positive notice was cancelled. Mr Howard failed to return these documents as he had thrown his blue card out, telling police that he believed that he could do so from emails sent to him by Blue Card Services. Mr Howard was unable to produce any such emails.

The “blue card” legislative framework

  1. [3]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act).  The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as “precautionary” in its approach.
  2. [4]
    A child related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [5]
    The Working with Children Act deals with blue card applications in two broad categories:
    1. a)
      Where a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;[4] and.
    2. b)
      Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[5]
  4. [6]
    The first category applies here.

What is meant by “exceptional case”

  1. [7]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[6]
  2. [8]
    Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[7]
    1. a)
      Whether it is a conviction or charge;
    2. b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. c)
      When the offence was committed;
    4. d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [9]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[8]
  4. [10]
    The application of the Working with Children Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[9] 

The applicant’s evidence and submissions

  1. [11]
    Mr Howard provided the Tribunal with his life story.  Relevantly, he stated that after his most recent offending he spent 8 weeks in a drug and alcohol centre called Transformations, where he completed an anger management course.  He also stated that he completed a 24-week domestic violence course, and an 8-week co-parenting course.  No supporting evidence was provided in relation to Mr Howard’s attendances at these courses.
  2. [12]
    Mr Howard has completed certificate courses in community and aged care.  Copies of these certificates were provided.  Mr Howard indicated that he was studying a Diploma in Health Care, and intended to enrol in a Bachelor of Nursing.  He requires a blue card for this course.
  3. [13]
    In his oral evidence, Mr Howard accepted that his children were in the same house at the time of the assault on his former father-in-law.  Mr Howard was unsure as to whether a domestic violence order was still in place in relation to his former father-in-law.
  4. [14]
    The Respondent’s representative put to Mr Howard the following statement he made to Blue Card Services on 22 June 2017:

Please feel free to compare sections J and K with the video below as with every statement to do with this case and the case of the DVO, it is all fabricated as to gain control of the children, that’s its soul (sic) purpose.

  1. [15]
    Mr Howard stated that there were embellishments in affidavits and statements, but it does not change the face that he should not have created the situation.  He should have gone through proper channels.
  2. [16]
    Mr Howard provided a “Psychological Profile” prepared by Dr Clive Jones, a registered psychologist.  The report was prepared on the basis of appointments totalling 5 hours and the completion of 3 psychological assessment items.  The report was completed on 6 November 2017.  Dr Jones concluded:

One vulnerability noted was Mr Howard’s capacity to ‘bite his tongue’ when feeling angry and/or frustrated in a situation.  In this context Mr Howard openly acknowledged his need to ensure a greater level of control in the way he may choose to express himself when faced with anger provoking situations.

…

Concluding Statement

At the time of this profile, in the context of all the evidence derived from the psychological assessments and associated interviews, and in full knowledge of the history of convictions against Mr Howard and the reasons for refusing to cancel the negative notice for the issuing of a Blue Card, Mr Howard’s clinical profile was found to be entirely within normal limits.

In this specific context there is no indication of any clinical or forensic concern and no evidence to suggest any risk to working with children.

  1. [17]
    I asked Dr Jones about the vulnerability he noted in his report, namely Mr Howard’s capacity to “bite his tongue”.  Dr Jones stated that Mr Howard had a clear capacity to control his anger.
  2. [18]
    The Respondent’s representative asked Dr Jones whether that capacity was longstanding or recently developed.  Dr Jones stated that it was longstanding, and that anger is a healthy emotion in the right context.
  3. [19]
    At one point in his oral evidence, Dr Jones described Mr Howard as having made “silly choices within the bounds of normal behaviour”.  I asked Dr Jones whether he was characterising contraventions of domestic violence orders as “normal behaviour”.  Dr Jones stated that the contraventions were to do with Mr Howard having a “punter’s interpretation” of the law.
  4. [20]
    I put to Dr Jones that Mr Howard had made the following comments on his website in the course of one of the contraventions of the domestic violence orders:

This website would be considered a breach of the DVO order, I expect it to be taken down and arrested for it, but from what I have experienced I don’t care ...

  1. [21]
    Dr Jones stated that Mr Howard was a person with a normal personality assessment who has made incorrect decisions in frustration.  Those decisions were “within the realms of a normal person”.
  2. [22]
    Mr Howard also provided a letter from Dr Steven Kose, registered psychologist, dated 16 January 2018.  It records that Mr Howard saw him on 5 occasions between 23 July 2016 and 15 December 2016.  Mr Howard was seeking assistance to “better manage his low frustration, anger management/conflict resolution and future direction”.  Dr Kose noted that Mr Howard “obtained sufficient insight and explored effective strategies to better manage his presenting issues”.  Mr Howard also attended additional sessions from 19 December 2017 “to revisit previous interventions to enhance his current circumstances which may help him to obtain his blue card”.
  3. [23]
    In his oral evidence to the Tribunal, Dr Kose was confrontational and made a number of inappropriate responses, such as telling the Respondent’s representative to “cut the crap” and asking whether he was married with children.  Dr Kose also characterised Mr Howard’s behaviour as having been “normal” at the time, however noted that Mr Howard was now thinking differently.
  4. [24]
    Mr Howard also provided references from his partner, Sarah Bruhn; his friends Alisha Rutland, Simon Pirrott, Trevor Harwood and Will Thomas; and his former colleague, Andrew Brennan.  All of the witnesses apart from Mr Brennan gave oral evidence.  They indicated that they had read Mr Howard’s life story, which included details of his criminal history.  They all spoke highly of him.

The respondent’s evidence and submissions

  1. [25]
    In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[10] which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case.
  2. [26]
    In applying that approach, the respondent identified the following protective and risk factors:

Protective Factors

The Respondent submits that the following protective factors are relevant in this matter:

  1. (a)
    the Applicant has undertaken some counselling with a psychologist from July to December 2016 and has since engaged again from December 2017. The Applicant's psychologist reported improvements in the applicant's insight and coping strategies in 2016;
  2. (b)
    the Applicant is currently in a supportive relationship and has provided a supportive reference from his partner;
  3. (c)
    the Applicant has undertaken training in domestic violence and anger management, and reports that he has abstained from alcohol and illicit drug use since 2001; and
  4. (d)
    the Applicant desires to work in nursing, suggesting a concern with the wellbeing of others.

Risk Factors

The Respondent further submits that the following risk factors are present:

  1. (a)
    the Applicant has recent convictions including a conviction for assault occasioning bodily harm and convictions for contravention of a domestic violence order;
  2. (b)
    the Applicant repeatedly breached a domestic violence order against him, indicating that he was unable to restrain his behaviour despite the imposition of an order and suggesting that the Applicant is at risk of repeating that behaviour in times of stress and/or conflict;
  3. (c)
    the assault of the Applicant's father-in-law was a violent incident occurring at the father-in-law's home while the Applicant's young children were in the home and may have heard the incident;
  4. (d)
    the Applicant's most recent breaches of the domestic violence order involved a sustained and deliberate breach of the protection order;
  5. (e)
    further, the Applicant's breaches of the domestic violence order relating to posting online material about his former wife and their family law proceedings demonstrates limited concern for the impact of such actions on his former wife, or indeed, on his children. This raises the concern that the Applicant may lack the appropriate judgment to be able to act protectively towards others, particularly towards children in his care;
  6. (f)
    on the whole, the Applicant has only very recently been able to outline some insights into the effect of his offending behaviour despite the counselling , courses and training that the Applicant has undertaken. This suggests that the Applicant's insight remains limited and that he is therefore at a higher risk of relapsing into offending behaviour in the future;
  7. (g)
    the Applicant's lack of insight into the seriousness of his offending is also demonstrated by his tendency to minimise his offending behaviour;
  8. (h)
    the Applicant undertook treatment for depression and anxiety from two psychologists in late 2013 and early 2014 prior to the breakdown in the Applicant's marriage. In his submissions to the Respondent he disclosed suffering a "nervous breakdown" and suffering from "PTSD". While the Applicant has submitted positive references from Dr Clive Jones and his psychologist, Steven Kase, the Applicant's history suggests that he remains vulnerable, at times of stress and conflict, to relapsing into offending behaviour.

[footnotes omitted]

Is this an exceptional case?

  1. [27]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [28]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[11]
  3. [29]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[12]
  4. [30]
    Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

Whether the offence is a conviction or a charge

  1. [31]
    Mr Howard has had findings of guilt made against him in relation to the offences set out in his criminal history above.  Although no convictions were recorded for the offences committed in 2014 and 2015, the findings of guilt are regarded as convictions as defined in Schedule 7 of the Working with Children Act.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [32]
    The offences are not serious or disqualifying offences.

When the offence was committed or is alleged to have been committed

  1. [33]
    The offences were committed in 1997, 2014 and 2015.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children

  1. [34]
    Mr Howard has a history of aggressive and harassing behaviour in a domestic context, repeated in offences committed 18 years apart.  Children are dependent upon adults around them to manage conflicts in an appropriate manner.  Mr Howard’s offending suggests that he lacks the appropriate skills to manage conflict in an appropriate way.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [35]
    Mr Howard was variously fined $300, $500, $250 and placed on probation for 9 months.

Other relevant circumstances

  1. [36]
    I have considered the risk and protective factors in Mr Howard’s life.
  2. [37]
    I acknowledge that the applicant is in a supportive relationship with Mr Bruhn, and has a support network which includes a number of friends.
  3. [38]
    However, I place little weight on the psychological interventions undertaken by Mr Howard for the reasons which follow. 
  4. [39]
    As noted above, there is no evidence to support his claims to have attended an 8-week anger management with Transitions, or a 24-week domestic violence course, or an 8-week co-parenting course.  Even if Mr Howard did attend those courses, there is no evidence as to how he responded to those courses and what progress (if any) he made.
  5. [40]
    Although Dr Jones concluded that Mr Howard was not a risk when working with children, there are a number of aspects of his evidence which are unsatisfactory: 
    1. a)
      Dr Jones gave oral evidence that Mr Howard’s “clear capacity” to control his anger was “longstanding” and not recently developed. This is at odds with Mr Howard’s criminal history, which shows that he lacked that capacity as recently as February 2015.
    2. b)
      Dr Jones also gave evidence that Mr Howard’s contraventions of domestic violence orders were “within the bounds of normal behaviour”. The overwhelming majority of separating parents involved in custody disputes do not contravene domestic violence orders, and I am not prepared to accept that conduct which constitutes a criminal offence is normal behaviour. Dr Jones attempted to explain Mr Howard’s behaviour by stating that he had a “punter’s interpretation” of the law, but I do not accept that explanation in light of the statement on Mr Howard’s website that he had a clear understanding that he was breaching the domestic violence order.
  6. [41]
    Dr Kose did Mr Howard no favours by the confrontational manner in which he gave his evidence.  He also characterised Mr Howard’s behaviour as being “normal” at the time.  For the reasons set out above, I do not accept that characterisation.
  7. [42]
    Mr Howard’s criminal history demonstrates that he has some propensity to act violently or resort to harassing and denigrating behaviour when he feels aggrieved.  The assault occasioning bodily harm took place while Mr Howard’s children were present in the same house.  The contraventions of the domestic violence order involving the publication of material on the internet also raises concerns that Mr Howard has demonstrated little regard for the interests of his children.
  8. [43]
    The most recent offending took place just over 3 years ago.  While Mr Howard has made some progress, I am not satisfied that there has been enough time for him to fully address the underlying triggers and/or circumstances that have contributed to his behaviour of this nature.  In this regard, I note that Mr Howard has previously been convicted of a similar offence in 1997.  He also appeared to have lacked insight as recently as June 2017 in his submission to Blue Card Services, where he referred to the evidence against him as having been “fabricated”.
  9. [44]
    I note that s 236 of the Working with Children Act permits Mr Howard to bring a further application to cancel of his negative notice after a period of 2 years from any previous application.  It may be that after a further period of non-offending, which would enable Mr Howard to consolidate the progress he has made, a different conclusion would be reached.

Conclusion

  1. [45]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [46]
    I therefore confirm the decision under review.

Footnotes

[1] Working with Children Act, s 5.

[2] Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[3] Working with Children Act, s 360.  See also s 6.

[4] Working with Children Act, s 221.

[5] Working with Children Act, s 225.

[6] Re FAA [2006] QCST 15, [22].

[7] Working with Children Act, s 226(2)(a).

[8] Working with Children Act, s 226(2)(e).

[9] Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill p 4391.

[10] [2004] QCA 492.

[11] Ibid, [30].

[12] Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 331, [27].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 74

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    21 Mar 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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