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FG v Director General Department of Justice and Attorney General[2023] QCAT 497

FG v Director General Department of Justice and Attorney General[2023] QCAT 497

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

FG v Director General Department of Justice and Attorney General [2023] QCAT 497

PARTIES:

FG

(applicant)

v

Director General Department of Justice and Attorney General

(respondent)

APPLICATION NO/S:

CML316-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

18 December 2023

HEARING DATE:

4 December 2023

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – application for review – where applicant issued with negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant not convicted of any serious offence – where applicant has assaulted a minor – whether case is exceptional – whether not in best interests of children to issue positive notice – whether an exceptional case – Consideration of s 226(2) factors

Human Rights Act 2019 (Qld), s 8, s 13, s 23, s 25, s 36, s 52, s 58.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

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

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

Grinrod v Chief Executive Officer, Department for Community Development [2008] WASC 289

LM v Director General Department of Justice and Attorney General [2022] QCAT 333

Re TAA [2006] QCAT 11

Vaeau v Director General Department of Justice and Attorney General [2021] QCATA 142

APPEARANCES & REPRESENTATION:

Applicant:

Ms McGee, Gilshenan and Luton.

Respondent:

Ms Cross, Legal Officer Blue Card Services

REASONS FOR DECISION

  1. [1]
    FG held a blue card since 2016[1] and subsequently engaged in a child-related business.[2] Following notification of new police information, the respondent reassessed FG’s eligibility for a blue card in March 2021,[3] and issued a negative notice. FG sought cancellation of that notice. Blue Card Services determined that the applicant’s case was an exceptional case and it would not be in the best interests of children for him to be issued a blue card. FG sought review of this decision in QCAT.[4]
  2. [2]
    The police information related to an assault on a 13-year-old boy, where the applicant had punched the child in the face.[5] FG pled guilty to the offence of assault occasioning bodily harm, and no conviction was recorded.
  3. [3]
    FG informs the Tribunal that he needs a blue card to continue his involvement in his business, which mentors young people,[6] and to pursue his application to study psychology at university.[7]
  4. [4]
    In undertaking the review, the Tribunal must conduct a fresh hearing on its merits.[8] The purpose of the review is to produce the correct and preferable decision.[9]
  5. [5]
    Section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), (‘the WWC Act’) requires the applicant be issued a blue card unless it is an exceptional case in which it would not be in the best interests of children for the decision maker to issue a working with children clearance. The issue for determination is whether an exceptional case exists.
  6. [6]
    The meaning of exceptional case is not stated in the legislation. Factors stated at section 226(2) of the WWC Act must be considered in determining whether an exceptional case exists, where there is a conviction for a non-serious offence as defined within the WWC Act. Other factors may be taken into consideration.[10] Case law has determined that an exceptional case is a question of fact and degree, determined on a case-by-case basis, and risk and protective factors may be taken into consideration.[11]
  7. [7]
    The Tribunal must apply the decision-making principles of the WWC Act. These require the welfare and best interests of children to be the paramount consideration in the determination.[12] The Tribunal must also be guided by the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[13] Any hardship caused or prejudice to the applicant is irrelevant to the determination.[14] Any flair in working with children is not relevant if it is not in the best interests of children for the applicant be issued a blue card.[15]
  8. [8]
    The Tribunal is acting as a public entity in reviewing the decision of Blue Card Services and is required to act in a way that is compatible with human rights.[16] The Tribunal will act in a way compatible with human rights where it makes a decision that does not limit human rights or limits a human right to the extent that it is reasonable and demonstrably justified.[17]
  9. [9]
    The applicant has filed in the Tribunal a personal statement[18] and character references from multiple referees,[19] letters,[20] an updated letter[21] from his treating psychologist Dr M, and an assessment from Professor F.[22] Eleven of these personal witnesses were made available for cross examination. BCS did not seek to cross examine several of these, and ultimately FG and 5 of his witnesses were cross examined. Neither Dr M nor Professor F were made available for cross examination. Written submissions filed 3 November 2023, and oral submissions, were also before the Tribunal. 
  10. [10]
    The respondent relied on documents contained in BCS 1-137, which included FG’s criminal history, police information about the offending, and sentencing remarks of Southport Magistrates Court, as well as documents produced under a Notice to Produce by Queensland Police Service (‘QPS'), including body worn camera footage produced by a QPS interview of the complainant child, and separately the police interview with FG immediately following the offence.[23] Written submissions were filed[24] and oral submissions made in closing at hearing.
  11. [11]
    FG’s criminal history indicates there are two convictions[25] although not recorded for an offence that is not defined as serious within the meaning of the WWC Act. In these circumstances, I must consider factors stated at s 226(2) in this determination as to whether an exceptional case exists.

Mandatory Factors to consider at s 226(2) of the WWC Act

Whether conviction or a charge.

  1. [12]
    FG was convicted of assaults occasioning bodily harm on 22 March 2021.[26] He pled guilty to the offence, and no conviction was recorded. He has an earlier offence for assault occasioning bodily harm in 13 January 2006.

Whether serious of disqualifying offences

  1. [13]
    Schedule 2 and 4 of the WWC Act define serious and disqualifying offences. The offence does not fall within either of those definitions. I accept the Respondent’s submission that Parliament intended all offences in a person’s criminal history to be considered in assessing suitability to work with children.[27]

When the offence was committed.

  1. [14]
    The most concerning offence was committed on 25 February 2021, when FG was 36 years old. The earlier assault was committed on 31 December 2005 when FG was aged 21.

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

  1. [15]
    The earlier offence involved an assault on licenced premises on New Year’s Eve in 2005. The police brief indicates that FG punched a man in the face a number of times causing abrasions swelling and possible broken nose.[28]
  2. [16]
    It is the latter offence that has direct relevance to working with children. The police brief[29] records that FG punched a 13-year-old child in the face, causing bleeding, a sore nose, and a loose tooth. The police brief[30] records that the complainant child reported that he was hit three times, initially in the neck and then subsequently in the face twice, when he threw a juice bottle at FG following an antecedent hostile interaction between FG’s son and the complainant child. Relevant details of the antecedent interaction reflected in the police brief indicate that FG’s son alerted him by phone that his bike had been stolen, and FG left his home and located the complainant child 1.5 kilometres from the site where the initial interaction had occurred between FG’s son and the complainant child. FG’s written statement[31] indicates that he sought input from his son’s friend to identify the whereabouts of the complainant child. This child had told him that the son had been pushed from the bridge and the complainant child had grabbed the bike.
  3. [17]
    FG admitted[32] to police that he told the child before he hit him “you probably need a punch in the head.” FG told the police he believed he had only punched him once in the mouth in response to the juice bottle being thrown at him.[33] This was not consistent with what the complainant child reported to police, which was that he asked “do you think it’s funny to steal kids’ bikes?” and punched the child in the neck. The child, in response, said he threw his juice bottle at the FG and then FG punched him in the face twice more.
  4. [18]
    FG pled guilty to this offence.[34] The record reflects that FG pursued the child, threatened the child, and then carried through with his threat in an act of vigilante justice.
  5. [19]
    The police footage of the interview with the child following the assault showed that the child was wearing a school uniform at the time. In oral evidence FG stated that he was not aware at the time that the child was wearing a school uniform.
  6. [20]
    I accept the Respondent’s submissions that the nature of the offence is directly relevant to considerations of FG’s suitability to work with children. The conduct demonstrates concerns about the potential risk that he poses to the wellbeing of young people and ability to manage his anger without causing harm to a child. The complainant child sustained physical and potentially emotional harm by the conduct. The respondent submits that the offence demonstrates difficulties self-regulating in response to triggers and risk factors. They further submit that his offending provides a poor role model to his own child and other children involved at the time. That FG involved another child to locate the complainant child suggests other children were aware of FG’s actions.
  7. [21]
    FG gave evidence that bullying of his son, which he believed occurred between his son and the complaint as a precursor to the assault, was a trigger to his reaction,[35] and he has since recognised this and sought to improve his emotional regulation.[36] FG has provided evidence to the Tribunal to refute the submission that he not able to self-regulate in response to triggers. He has provided written yet untested evidence of his treating psychologist, and given oral evidence on the development of his current ability to self-regulate his emotions, developed through therapeutic input and courses in non-violent communication. This evidence will be discussed at paragraphs 38-41 as it is relevant to other information the Tribunal should consider.
  8. [22]
    FG gave evidence that he considered at the time the child was older than he looked, based on his physical appearance. Although at FG clarified at hearing that this conduct was unacceptable whatever the age, FG earlier told Blue Card Services in May 2021 that he thought “he was 16 or 17”.[37] In a subsequent statement in November 2023 that he “believed the guy to be at least 18 years of age.”[38]
  9. [23]
    It is noted that the police body camera footage shows the complainant child wearing a school uniform.[39]
  10. [24]
    At hearing he accepted that he had assaulted a child, and that the conduct was inappropriate, stating on several occasions that it “was disgusting” and “the worst thing I have ever done.” He demonstrated insight into the inappropriateness of the conduct and did not seek to minimise the conduct at the hearing, taking responsibility for the action.
  11. [25]
    In summary, the offence is directly relevant to his suitability to work with children, in that he has caused actual harm to a child in response to uncontrolled anger, and role-modelled antisocial behaviour in dealing with conflict.

In the case of conviction, the penalty imposed and the courts reasons. 

  1. [26]
    The court imposed a fine of $1000 and FG was ordered to pay $500 compensation. The conviction was not recorded. The court had regard to FG’s military service, community service and remorse for the offence.[40]
  2. [27]
    There is no information before the Tribunal relevant to sections 318, 219, 335, 337, or 338 of the WWC Act.
  3. [28]
    Anything else relevant to the commission to the offence is considered with other relevant matters below.
  4. [29]
    The Tribunal is not limited to the factors in section 226(2), and the Court of Appeal has considered that other factors may be relevant to whether an exceptional case exists.[41]

Psychologist’s Report and Assessment

  1. [30]
    FG contends that he has undertaken therapeutic input to improve skills to self-regulate his emotion in response to this event.  He provided evidence from two psychologists to support his case. Dr M, his treating psychologist, wrote an open letter in March 2021 following the assault, advising that he had treated FG since September 2020 as a veteran. He noted that his history of post-traumatic stress disorder had been well managed with minimal functional impairments when he came to see him, and he had been working with him on aspects of self-awareness. Dr M stated FG had six sessions prior to the incident.[42] In June 2021, Dr M wrote another open letter, noting that FG had been working consistently to develop greater capacity to regulate his emotions and manage his behaviour. He noted consistent attendance and engagement and “growing insight”. He identified that FG has been using the therapeutic space to process the “unfortunate incident” and how he could have exercised better interpersonal judgement, consistent with therapeutic goals of building skills around emotional regulation. Dr M further expressed a view that FG posed no harm to youth and was committed to contributing to enhance the welfare of youth. He noted 8 sessions since commencement in 2020 had been completed at the date of the letter.
  2. [31]
    His updated open letter, dated 17 November 2023, restated that he did not consider FG a risk to youth. He noted that the February 2021 incident had been recounted to him in their subsequent sessions.
  3. [32]
    Dr M advised that FG had presented to him initially for treatment of post-traumatic stress disorder which can be associated with emotion regulation difficulties. He advised that FG’s PTSD had been responsive to the cognitive behavioural therapy that was at the centre of his intervention. He advised that based on the symptom experience in April 2023, using a structured interview, FG no longer met the criteria in the     DSM-5 for PTSD, and his score in November 2023 was well below the clinical cut off for PTSD. Tests in November 2023 identified low levels of difficulty in regulating emotions and no clinically significant difficulties with impulse control. His stated that FG’s results reflected significant treatment response to Cognitive Behavioural Therapy. He further noted engagement in treatment and ongoing bookings into 2024. He stated that FG had demonstrated excellent insight into associations between cognitions, emotions and resulting behaviours and had used this to control his response when triggered in a similar subsequent incident. He stated that the symptom reduction and functional evidence of change in daily life offer the best predictive validity for future behaviour.
  4. [33]
    Professor F assessed FG via video-link on 5 August 2021. His report contained the following relevant evidence.[43] His clinical assessment indicated mild symptoms of post-traumatic stress disorder stemming from his defence deployments with no significant functional impairments and no elevated symptoms. A personality Assessment Screener indicated he does not harbour aggressive or violent tendencies and has not had a history marked by violence. His assessment gave no indication of personality disorders.
  5. [34]
    Professor F undertook a number of standardised tests (the Hare Psychology Check List and the Historical Clinical and Risk Management Violence Assessment Scheme), concluding that FG did not meet the criteria for having psychopathic tendencies, or criminal versatility that demonstrated risk of recidivism. FG scored in the low-risk category for future acts of violence based on these assessments.
  6. [35]
    Professor F identified a number of protective factors including:  involvement in youth/adult mentoring services, a stable relationship and accommodation, and willingness to access professional supports; clear and achievable goals, a lack of underlying deviation or personality pathologies, and “sufficient insight”.
  7. [36]
    It is not clear how Professor F determined “sufficient insight”.[44] His report references FG’s statements of remorse, feeling “sorry for him”, and acknowledgement he could have made better choices and should not have confronted the child. He was apologetic for any harm caused to him. He considered he reacted excessively.[45] He further commented in his clinical opinion that he had ‘a sufficient level of insight into his ongoing treatment needs and presents as particularly committed to avoid similar events in the future’.[46] Professor F’s clinical opinion reflects that FG has insight into the inappropriateness of his behaviour, and his treatment needs.  The Tribunal was not afforded the opportunity to question Professor F on these matters to explore FG’s insight into the harm caused by the behaviour to the child and other children linked to the incident.
  8. [37]
    Professor F stated that it was likely that the incident stemmed from the use of reactive (impulsive and uncharacteristic) violence when exposed to an extremely unforeseen event.  In contrast. there was no evidence of underlying cognitions that condone or promote the mistreatment of children. Rather he has consistently demonstrated a “voluminous amount of evidence regarding the support/mentoring/enhancement of younger individuals via his association with multiple services”. 
  9. [38]
    The respondent submits that Professor F’s evidence does not make clear why protective factors that were present prior to the offence such as did not serve to be protective against the offence. The respondent submits that this evidence of Professor F and Dr M was unable to be tested, and should be afforded less weight where there is no information before the Tribunal as to what was reported about the assault to his psychologist, and whether that that accurately reflected by the offence. There is, for example, no evidence that the complainant’s evidence that he was punched three times by FG was considered. The applicant rejects this, submitting that both psychologists were aware of the offending, and concerns raised by the respondent were addressed in the updated report of Dr M.
  10. [39]
    It remains unclear what information about the offence they were specifically provided regarding its nature and gravity, noting that Dr M refers to it as an “unfortunate incident.”[47] Ultimately, while both psychologists assess FG as a low risk of violence into the future, there remain gaps in both Dr M and Dr F’s evidence relating to the nature and extent of FG’s insight into the harm caused to children by the offence, and the extent to which they had accurate information about the offence. 

Applicant’s evidence

  1. [40]
    FG gave evidence that his therapeutic input over a three-year period with his treating psychologist Dr M has assisted him to manage the triggers as to reactions and enabled him to exercise greater self-control over his impulsive reactions.
  2. [41]
    He gave evidence that he had completed a two-day anger management course on 3 and 5 August 2021, which he indicated gave him an understanding of internal warning signs of anger and how to develop skills to reduce heightened physical responses to his own anger.[48] He has undertaken a further anger management program across five days through  a counselling organisation[49] which has taught him to create space and time when he is triggered. He said he has learnt to walk away when heightened, which allows him to consider his choices before reacting.[50]
  3. [42]
    He completed a two-day non-violent communication training[51] and a further program over several sessions. FG gave oral evidence that this gave him skills to use a four-step process to manage his responses across his relationships. These included a 4-step strategy to avoid reactivity that he recounted as: observe, feel, need, and request. He said the use of this communication tool has reduced arguments in his house. He said he has drawn upon empathetic listening to be able to understand what is occurring for the other person. FG gave clear evidence that indicted he regularly applied these techniques in his personal relationships, and they had improved his self-regulation.
  4. [43]
    FG gave evidence that he has other strategies to manage and prevent a similar incident occurring. Specifically, he utilises breathing techniques, withdrawal strategies, and maintains physical wellbeing through a regular fitness regime, which all contribute positively to his improved self-regulation ability. Contributing through his mentoring organisation, he said, has given him a sense of identity through a positive contribution to the community in the mentoring work he did prior to losing his blue card.
  5. [44]
    Asked about the public perception of his assault on a child, he said that he was disgusted by his actions. He referred to the assault as “my biggest mistake ever”. FG said the action was the opposite of what he teaches to the young people he mentors. He said in retrospect he would have called the police rather than react and take the law into his own hands. He acknowledged that he disregarded the law and lawful processes.
  6. [45]
    FG said he had talked with his son about the offence and told him he let his emotion take over and that was not the proper way to react. He said he is now trying to be an example to his son, and that he told him he needed to ensure that he learned from his mistakes.
  7. [46]
    In recounting the assault FG stated that he had a different memory of the events, agreeing that he had punched the child in the face, but disagreeing with the police brief’s[52] record of the complainant child’s statement that he punched the child three times. It is noted that his offence in 2005 involved multiple punches to the face also.[53]
  8. [47]
    Asked about the impact of the assault on the child, FG said the child would have felt fear, and been physically injured, and would experience some trauma from the experience.
  9. [48]
    The applicant notes that he has a 11-year history of army service with three deployments and has been mentoring youth since 2016 without incident. He has mentored over 2,500 children aged between 12 and 17.[54] He provided excerpts from testimonials in his statement[55] from parents whose children have been mentored at the camps run by FG through his business. These were unnamed excepts with no direct comment relating to FG, so are not relied on in making this decision.
  10. [49]
    The applicant’s written submissions[56] submit that:

[The] circumstances surrounding this incident are quite unique. It’s not every day that a person’s son gets thrown from a bridge, against his will, ultimately putting his life in danger. The applicant’s son was clearly distressed by the victim child’s conduct…The circumstances are relevant because it is not the case that the applicant behaved in this way entirely unprovoked.

  1. [50]
    That submission does not reflect the facts contained in the police brief, that refer to a “push” from the bridge, in response to a mutual friend telling him “If my mate does not jump give him a push”.[57] The applicant’s submission in relation to this point overstates the precursory conduct of the complainant child and suggests that he is minimising the gravity of his conduct. I further do not accept that the circumstances in the leadup to the assault between the two children in any way mitigate FG’s excessively violent reaction toward the complainant child. Working with children, by its very nature, will at times involve provocative and emotionally challenging interactions. The gatekeeping mechanisms of the WWC seek to provide a protective regime to ensure adults who work and volunteer with children can manage their emotional responses even in response to provocation, to ensure children are kept safe from harm at all times.
  2. [51]
    Earlier in FG’s statement he refers to “in the lead up to the incident” having an electric scooter stolen from his garage and hearing how “out of control the local teenagers were.”[58] This suggests that he considered there was an indirect link to the events of the day. Again, this appears an attempt to justify and minimise the conduct. Asked about this at hearing FG stated there was a lot of thieving activity in his local area and he was “over it”, and with the bike being stolen subsequently he was “sick of” people’s things being taken. He said it was relevant at the time. 

Witness Evidence 

  1. [52]
    FG’s wife and friends, and co-directors in his business, gave oral evidence.
  2. [53]
    MT’s written statement[59] indicates he has known FG since 2013, and has worked with him since 2016 in volunteer youth mentoring, subsequently starting a company together which provides youth mentoring to help youth who are “struggling to cope with life.’ He described FG as honest, hardworking, reliable, gentle, trustworthy, and respected, one who demonstrated kindness and compassion in working with youth, and who had been observed to be an “excellent role model”. He expressed his opinion that FG has shown compassion and empathy to the students and had “an ability to understand teenagers’ feelings and to communicate empathetically to their parents”. He stated that the organisation regularly receives positive feedback about FG. He said he had never observed to show any aggression to students or parents, and the “incident is widely out of character for him”. He was aware that he had been taking steps to ensure it never happened again through therapy and courses. He re-iterated this at hearing, further noting that FG was an excellent leader who led by example.  
  3. [54]
    SB has known FG on a personal and professional level since 2018. SB has observed him delivering workshops to families including children. She considered FG an excellent role model to her own children and described a positive influence of FG on her own children in learning “to communicate openly from the heart”. She described the offence as being “way out of character”.[60] In her oral evidence she stated she has observed FG calmly discipline his own children with words only, using withdrawal of privileges. Despite the knowledge of the assault, she had no concerns with him working with children.
  4. [55]
    CF, FG’s wife, stated that she wanted to retract from her written statement[61] that FG didn’t know that the complainant child was under 18. She said she was aware that he was surprised when the police told him the child was 13 and that she was trying to say that it was ‘unfair that he fought with an 11-year-old kid’.
  5. [56]
    In her written statement she stated that in his work as a mentor FG works with “abusive and disrespectful kids and has never lost his cool”. CF confirmed that she has observed FG to have developed improved tools to regulate his emotions, and she has seen improvement in the household with these tools applied. She believed that he has learnt the tools to not react in a similar way into the future.
  6. [57]
    She has observed him using breathwork and meditation, these being some of the tools, to add to the courses he has undertaken. She stated that he never uses violence on his own children. She reported that FG told his children that what had occurred was a mistake and was not how to resolve conflict, and that they needed to trust the system and allow the police to respond first. She described FG as “a good person” who reacted in “a split second” that was a “mistake”. She said the lessons learnt have been life-changing and made him a better person, a “more wonderful person”.[62]
  7. [58]
    FM is a business partner in the mentoring company FG is involved with. They were friends from early high school, and both joined the army. He acknowledges the input FG has made to improving himself, better understanding himself and responding in the face of aggression, and notes that this knowledge has helped FG in his personal and professional life. He considered the incident was a “one-off”.[63] He said he has never observed FG act with physical aggression in the mentor company, and youth discipline involves physical activity. He said he has seen FG interact with hundreds of children, where he pushes them to achieve greatness.
  8. [59]
    MB observed FG during camps with children in 2019, observing he showed compassion, respect, and trust to students, making him comfortable leaving his own children with FG. He said he has never seen FG act with violence, having known him since 2016. He was aware that he was remorseful and had taken steps to improve himself. He stated that FG was the “type of person we need more of when it comes to mentoring youth”.[64] He stated that he had “zero concerns” about him working with children, where the action was out of character, and he knew FG to be disappointed with himself.[65]
  9. [60]
    Other witness statements were provided by his mother FL and sister HK, CP and IC and NR. The respondent did not seek to cross-examine these witnesses. These statements are consistent with the evidence provided by the other witnesses, that the conduct was out of character and inconsistent with observations of his work, and in his personal life FG had a calm persona with no history of aggression toward children beyond the incident. Each also confirmed his progress courses and therapy. 
  10. [61]
    I find the witnesses’ evidence supports FG’s evidence that he has developed improved skills of self-regulation in response to the therapeutic treatment and self-education. The witnesses’ evidence further supports that the incident was out of character and inconsistent with the way FG deals with his own and other children through his mentoring organisation. None of FG’s witnesses had concerns about his ability to work safely with children.

Consideration

  1. [62]
    The evidence suggests several factors in FG’s favour. Psychological assessments indicate FG has no personality pathology or violent tendencies, and that he has minor symptoms of PTSD which are well controlled, and more recently, he has been non-symptomatic. He was assessed as a low risk of violence using standardised measurements to assess risk. 
  2. [63]
    The evidence indicates that FG has undertaken significant therapeutic input to develop skills in managing his anger and reactivity and communicating effectively. He demonstrated tools he has drawn upon to manage his reactivity and reports positive progress which is supported by his treating psychologist and friends and family. An ongoing commitment to and progress with self-regulation was demonstrated by the evidence. These aforementioned factors reflect well on FG.
  3. [64]
    FG’s witnesses consistently gave evidence that he is of good character and has never been observed to cause harm to children that they have seen. They were all aware of the assault, but all witnesses spoke to it being ‘out of character ‘for FG to engage in this conduct. They gave consistent evidence that FG was known to them as a calm caring person, with no history of aggression toward children.
  4. [65]
    FG submits that he has demonstrated insight into his behaviours of concern, the triggers to his offending and his responsibility for the harm he has caused. I accept this submission in part, where there is a gap in the evidence as to his insight into the significance of his conduct modelled to children and some minimisation of his conduct is noted.
  5. [66]
    The authority of Re TAA[66] is often referred to concerning the importance of insight in these matters where:

A person aware of the consequences of his actions or other harm is less likely to re-offend than a person who has no insight into the effect of his actions on others.[67]

The Tribunal accepts that his admissions to police, and the plea of guilty, are indications that he would do things differently, and evidence of his understanding of his impact on the child[68] does suggest a degree of insight. In his oral evidence, FG has demonstrated remorse into the likely impact of his behaviour on the child, further being aware that he acted a poor role model to his son in modelling violence and a lawless approach to problem-solving. FG was less cognisant of the impact on the children who were with the two boys who would have undoubtedly become aware of the assault. He demonstrated understanding in his oral evidence that he had disregarded the law, and wrongfully taken action into his own hands. He has taken steps to address that with his son. This reflects insight into the inappropriateness of his conduct and need for strategies to manage his anger.

The evidence of his psychological experts focuses on FG’s insight into his triggers and treatment needs[69]  and does not provide clinical opinions about the impact of his conduct on the complaint child and other children directly and indirectly involved. The Tribunal was not provided the opportunity to question these report writers on matters of insight. This leads the Tribunal to conclude that FG demonstrates partial insight into the harm he has caused.

  1. [67]
    Further, FG has previously minimised his offence by providing inconsistent evidence as to his beliefs about the child’s age, based on the complainant child’s physical presentation. Although he clarified at hearing that this conduct was “unacceptable whatever the age”, his earlier reports to Blue Card Services in May 2021 that he thought “he was 16 or 17”[70] contrasts with his subsequent statement filed on 3 November 2023 that he “believed the guy to be at least 18 years of age”.[71] Such inconsistency in evidence to the Tribunal can be seen as an attempt to minimise his conduct and does not suggest that full responsibility has been taken for the assault upon the child and its impact of that conduct on that child.
  2. [68]
    FG has a range of protective factors across domains of his life relating to stability in his family life, friendships, and physical activity, as well as ongoing therapeutic intervention. I accept the submissions of the respondent that most of these protective factors existed at the date of the offence and were not protective to avoid harm to a child, and on that basis afford this little weight. However, FG’s development of new skills in self-regulation and awareness of responsiveness to triggers to dysregulation is clear on the evidence. Such skills are nonetheless newly acquired. The Tribunal is required to give consideration to when the offence occurred in determining whether an exceptional case exists. The passage of two years and nine months is an insufficient period to demonstrate FG’s consistent ability to self-regulate his emotions around children and that he no longer poses a risk to children. Since this is a mandatory consideration as to whether an exceptional case exists, it is a prominent factor suggesting the case is exceptional.
  3. [69]
    There are significant risk factors in this matter. The gravity of the offence is of itself a risk factor. FG engaged in a significantly violent act toward a child, which caused physical and likely emotional harm to a child, and modelled inappropriate means to deal with anger and conflict to the complainant child, his own son, and those children’s friends. There was a significant power imbalance affected by age, and potentially strength, which was ignored by the decision to punch the child in the face.  FG admitted that he told the police that he articulated that the child “needed a punch in the head” at the time and carried through that threat. Both actions were inappropriate conduct between an adult and a child.[72] That the child was wearing a school uniform at the time[73] should have given reason to FG to have been aware that the complainant child was not an adult, irrespective of his size. That the thought occurred to FG even for a moment that it was acceptable to punch a child in the face is of itself a risk factor.
  4. [70]
    FG’s action modelled extremely antisocial conduct and disregard for the law and lawful management of his grievances to several children directly and indirectly involved. At the time of the offence FG was working in a different context with “extremely difficult teenagers”[74] in a mentor capacity. FG held a position of trust and authority in his mentor work. That role as mentor suggests that he had an obligation to act in all ways as a role model to those teenagers he sought to mentor. It is reasonable to consider that a person who works with vulnerable children would show restraint and not engage in direct violence toward a child while contemporaneously holding a position of respect and authority in his working life. In this regard FG acted as a poor role model to those teenagers he mentored irrespective of whether they had knowledge of the offence. No significant insight into this issue was noted in FG’s evidence nor his witnesses’ evidence. This is an important risk factor.
  5. [71]
    The nature of the offence and its relevance to working with children is a mandatory consideration pursuant to section 226(2)(a)(iv) of the WWC Act. The offence has a direct relationship to how FG has dealt with conflict and anger around children, and whether he can protect all children from harm. Although his witness evidence indicates it is not typical of his way of interacting with children, in this instance, he was unable to control his anger and harmed a child.
  6. [72]
    The community expect that those who are entrusted to work with children will ensure a safe environment for children at all times. FG demonstrated that on this occasion, he caused direct physical and potentially emotional harm to a child. Although Professor F has assessed him as a “low risk of violence” the evidence indicates he posed a proven risk of violence to a child less than six months prior to that assessment.
  7. [73]
    I must prioritise the welfare and best interest of children in this determination. I must not take into consideration any hardship caused to FG, or any flair in working with children. There is strong evidence that FG is respected for his work with young people; however, I cannot attribute weight to that if it is not in the best interests of children that he work with them. While there is much evidence to indicate that he has made significant progress in self-regulation and anger management, these skills are newly learned, with application over a limited period. I find that the time period is insufficient to be confident that the risk of harm no longer arises. Having regard to the significant risk factors, noting that many of the purported protective factors were in place at the time of the assault, and applying the paramount principle, I find that the totality of the evidence indicates that FG has been a proven risk to the welfare and best interests of children. Only a short period of time has passed since the offence for FG to demonstrate consistent self-regulation and appropriate conduct in response to his triggers.
  8. [74]
    With the paramount principle of the welfare and best interests of children guiding this decision, having considered all the evidence, the mandatory considerations under section 226(2) of the WWC Act, and the findings of fact, on the balance of probabilities, I am satisfied that this is an exceptional case in which it would not be in the best interest of children for FG to be issued a working with children clearance. The decision of the respondent is confirmed.
  9. [75]
    The Tribunal is acting as a public entity when reviewing this decision and is obligated to make a decision that is compatible with human rights.[75] I must give proper consideration to any human right that may be limited by this decision.[76] It is possible that this decision may limit rights to privacy and reputation,[77] the right to take part in public life[78], and the right to further educational and vocational training.[79] Human Rights may only be subject to limits that are reasonable and demonstrably justifiable.[80] I have had regard to the purpose of the decision, which is to apply the principles of the WWC Act to ensure that the welfare and best interests of children are paramount when determining child-related employment screening decisions. Since the WWC Act is protective legislation, and my obligation to apply the paramount principle as the principle to which all others yield,[81] I find that it is reasonable and justifiable to limit these rights to ensure the protection of children in accordance with the purpose of the Act.
  10. [76]
    While it is desirable that matters are reported publicly, it is clear this may have adverse impact on FG or the children of the applicant. In these circumstances it is not in the interests of justice for FG’s identity or his witnesses to be public, and I make orders pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) accordingly. Protecting this privacy is a decision compatible with human rights.[82]  As a result, these reasons are de-identified.

Footnotes

[1]BCS 34-37.

[2]Statement of FG filed 10 July 2023.

[3]BCS 41.

[4]Application filed 11 October 2022.

[5]BCS 41.

[6]Applicant’s submissions filed 10 July 2023, [72].

[7]Ibid, [40].

[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[9]Ibid, s 20(2).

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

[11]  Ibid. 

[12]WWC Act, ss 6, 360.

[13]Ibid, s 6.

[14]Vaeau v Director General Department of Justice and Attorney General [2021] QCATA 142 [52].

[15]Grinrod v Chief Executive Officer, Department for Community Development [2008] WASC289, [33]; LM v Director General Department of Justice and Attorney General [2022] QVCAT 333, [322].

[16]Human Rights Act 2019 (Qld), s 58.

[17]Ibid, s 13.

[18]Statement of FG dated 7 July 2023, filed 10 July 2023.

[19]Letters filed 10 July 2023 attached to Applicant’s Personal Statement; of RN, (undated) IC, undated, PC, 20February 2023; MT 12 April 2023; FL, 20 May 2023; HK, field 29 May 2023; CF 29 May 2023; FM, 30 May 2023; SB, 31 May 2023; MB, 14 June 2023. TAE, 5 March 2023.

[20]BCS 96, BCS 112.

[21]Dated 17 November, filed 27 November 2023.

[22]Professor F, 13 August 2021, BCS 81-89.

[23]Filed 10 August 2023, Subject to “View only” directions.

[24]Filed 20 October 2023.

[25]BCS 40.

[26]Ibid.

[27]Explanatory Notes to Commission for Children and Young People Bill 2000, p 11.

[28]BCS 124-126.

[29]Ibid, 43-44.

[30]Ibid, 43.

[31]Statement of FG dated 7 July 2023, filed 10 July 2023.

[32]BCS 43-44.

[33]Ibid.

[34]Ibid, 40.

[35]FG oral evidence.

[36]Applicant Submission filed 10 July 2023.

[37]BCS 91.

[38]Statement of GF filed 10 July 2023.

[39]QPS Body Camera footage, filed 10 August 2023.

[40]BCS 119-120.

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

[42]BCS 112; Letter of Dr M 12, March 2021.

[43]BCS 81-89; Report dated 19 August 2021.

[44]Ibid, [12.2].

[45]Professor F, BCS 25 [ 4.1].

[46]Ibid, [12.1].

[47]22 June 2021, BCS 96. 

[48]FG’s oral evidence at hearing,

[49]Statement of FG filed 10 July 2023, [65].

[50]FG’s oral evidence at hearing.

[51]Ibid, [64].

[52]BCS 43.

[53]Ibid, 124-126.

[54]Ibid, [26].

[55]Ibid, [32].

[56]Applicant’s written submission filed 3 November 2023, [24], [25].

[57]BCS 43-44.

[58]Statement od FG field 10 July 2023.[49].

[59]MT, 12 April 2023, filed 10 July 2023.

[60]31 May 2023, filed 10 July 2023.

[61]CF, 29 May 2023, filed 10 July 2023.

[62]CF oral evidence.

[63]Statement of FM 30 May 2023, filed 10 July 2023.

[64]MB, 14 June 2023.

[65]FM oral evidence.

[66][2006] QCAT 11.

[67]Ibid.

[68]Applicant submissions, filed 3 November [31].

[69]BCS 87 [12.2].

[70]BCS 91.

[71]Statement of FG filed 10 August 2023, [52].

[72]FG’s oral evidence.

[73]QPS body camera footage of interview with the complainant child, filed 10 August 2023.

[74]Statement of FG, filed 10 August 2023, [70].

[75]Human Rights Act 2019 (Qld), s 58.

[76]Ibid, s 52.

[77]Ibid, s 25.

[78]Ibid, s 23.

[79]Ibid, s 36.

[80]Ibid, s 13.

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

[82]Human Rights Act 2019 (Qld), s 25.

Close

Editorial Notes

  • Published Case Name:

    FG v Director General Department of Justice and Attorney General

  • Shortened Case Name:

    FG v Director General Department of Justice and Attorney General

  • MNC:

    [2023] QCAT 497

  • Court:

    QCAT

  • Judge(s):

    Member McDonald

  • Date:

    18 Dec 2023

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
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Grinrod v Chief Executive Officer, Department for Community Development [2008] WASC 289
2 citations
Jump To
Cite 1 - [2008] WASC 289
Cite 2 - [2008] WASC 289
LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333
1 citation
Jump To
Cite 1 - [2022] QCAT 333
Re TAA [2006] QCAT 11
2 citations
Jump To
Cite 1 - [2006] QCAT 11
Cite 2 - [2006] QCAT 11
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
2 citations
Jump To
Cite 1 - [2021] QCATA 142
Cite 2 - [2021] QCATA 142

Cases Citing

Case NameFull CitationFrequency
DCR v Director-General Department of Justice and Attorney-General [2025] QCAT 2281 citation
1

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