FJM v Director-General, Department of Justice and Attorney-General [2023] QCAT 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FJM v Director-General, Department of Justice and Attorney-General [2023] QCAT 36 PARTIES: FJM (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML186-20 MATTER TYPE: General administrative review DELIVERED ON: 25 January 2023 HEARING DATE: 12 October 2022 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the Director-General, Department of Justice and Attorney-General made on 15 April 2020 is confirmed. Publication of the applicant’s name, as well as those of the complainants and all witnesses, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Publication of the documents filed by the parties as evidence in these proceedings is prohibited, save as was and is necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons, under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 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 -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 360 Human Rights Act 2019 (Qld), s 13 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 [2004] QCA 492 APPEARANCES & REPRESENTATION: Applicant: The applicant was self-represented Respondent: Mr Davis instructed by the respondent REASONS FOR DECISION [1] In early 2020 the applicant applied to Blue Card Services for a blue card to allow him to care for his grandchildren with his wife as kin carers. The application was considered by blue card Services (“the Department”) and after obtaining background information on the applicant decided to issue him with a negative notice. The applicant was advised of the decision on 15 April 2020. A copy of the notice was also sent to the Department of Child Safety, Youth and Women. [2] As a consequence of receiving the negative notice the applicant filed an application to review the Department’s decision on 20 May 2020. On 7 July 2020 the Department filed its s 21(2)1 documents in the tribunal which included a statement of reasons, offending history and other documents. On 20 September 2020, the applicant filed reports from Steve Lawson, psychologist and Delphine Bostock, psychologist, in relation to his mental health. These reports were generated through the Department of Defence. He also filed a statement of evidence referred to as “Life Story by FJM”. These documents give insight into his background and general disposition. [3] Pursuant to the Tribunal directions the applicant filed a further affidavit on 4 March 2022 purportedly to address any of the matters upon which the Department made its decision to issue a negative notice. However, the material he filed is a somewhat incomprehensible dissertation concerning the illegality of the conduct of the Department and a challenge to the jurisdiction of this Tribunal to hear his review application. The content of this dissertation is irrelevant to the matters I have to decide under the Working with Children (Risk Management and Screen) Act 2000 (Qld) (“WCA”). All it does is demonstrate his challenge to authority and the jurisdiction of the tribunal. [4] The applicant is 65 years of age. He joined the Australian Defence Force, Army, after leaving school in 1973. He has served full time in the Army, and then retired as a Warrant Officer Class 1, but remained a member of the Army Reserve until 2021. Records from the Department of Defence indicate that he has completed the Defence Youth Safety: Level 1 Awareness course in February 2019, Youth Safety: Level 2 in February 2019 and Youth Safety Level 3 leader in February 2021. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 2 of 7 -- 3 [5] The applicant and his wife were married in 1978 and they have 3 adult children. A daughter born in 1973, a son born in 1983 and another daughter born in 1986. He remains in good health. Sadly, the applicant’s wife has recently passed. [6] He participates in charitable events, including an event raising money for children with Spina Bifida. He is involved with a local RSL Sub-Branch which is involved with raising money for disadvantaged children. He also volunteers in providing food for the homeless. Apart from the offences that concern the Department, he has not been involved in any other anti-social, or illegal activities during his adult life. On could reasonably assume that against this background a blue card would be issued to him. However, there is a history of offences which are set out below. [7] These offences relate to convictions (x2) for wilful exposure. The extract from the National Police Check Results Reports discloses the following: Court Date Offence Result Brisbane Magistrates Court 18.05.1979 Wilful exposure (2 chgs) (on or about 13.2.79 and on 26.2.79) Convicted and fined $30 and to pay costs of court of $16.25 Liverpool Local Court 09.09.1992 Wilful & obscene exposure Fined $300 Costs $45 Pine Rivers Magistrates Court 12.01.2015 Wilful exposure near a public place on 31.12.2014 No conviction recorded fined $300 [8] The particulars of each charge is set out in the Court Briefs (Qld) and the Crime Information Report (NSW).2 The circumstances are relevant in considering the seriousness of the applicant’s conduct. On the first charge on 13 February 1979 the complainants observed the applicant standing naked on the front verandah of his house as they, two sisters, walked by his house. They observed him holding his penis and masturbating. No words were exchanged but the sisters hurried away and reported what they saw to police. The applicant made no attempt to stop the conduct or move out of sight when he was obviously observed by the complainants. [9] On the second occasion, on 26 February 1979, a cosmetic representative observed the applicant naked in his front yard, near a bush, holding his penis and masturbating. On observing him she moved away and reported to police. Again, he made no attempt to desist or move out of sight. When interviewed by police, the applicant could not provide any explanation for this conduct. He pleaded guilty to the charges. [10] In the New South Wales incident, the complainant was walking past his house and saw him standing naked in front of his garage with his hands on his hips. Once again he did not move away when observed. When interviewed by police he denied the conduct but pleaded guilty to the charge. [11] On the third occasion the applicant was sitting on his front verandah, naked, when police drove by in an unmarked car. They could see he was naked, sitting in a chair at a glass table and noted a member of the public walk by with a dog. They approached the 2 Attached to the Reasons dated 15.04.2020. -- 3 of 7 -- 4 applicant, who said he did not think he could be seen. He said he was alone and should anyone be next door, the police noting children’s toys visible in the yard, he would go back inside. No other explanation was provided and he pleaded guilty to the charge. [12] During the review hearing the applicant was questioned about the charges, but did not provide any further explanation or justification for his behaviour. His only reference to the conduct the subject of the charges is in the body of his application: [13] I understand Michelle Millers concerns and can only reiterate that I co no understand what my action in the past have meant to the people who I offended, and I do not intend on offending anyone else with this behaviour. The triggers to my past behaviour will not occur as the impact of re-offending will definitely mean that I cannot look after our Grandchildren, and this will have a detrimental effect for them plus my wife…..It is in the interests of my Grandchildren that I am true to my word and will not reoffend. [14] The applicant was invited to make further submissions at the close of the hearing. He did, but again they are of little assistance because they do not address the relevant issues. He complained about the hearing process and the questioning by Ms Davis for the Department. He challenged the jurisdiction of the tribunal in a similar way to that contained in this first statement. He asserted that the responses to questions by Ms Davis did not assist the Department’s case, no mental health issues were established and therefore there was no reason why he should not be given a blue card. [15] Similarly, the Department filed comprehensive written submissions dated 28 October 2022.3 The submissions address, in detail the approach that should be taken in considering whether the applicant has established that his is an exceptional case under s 221(2) of the WCA. “Exceptional case” is not defined in the WCA and therefore it is necessary to consider the relevant facts of each case and the degree to which those facts impact the suitability of an individual to work with children having regard to: [16] …the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect children.4 [17] Of particular relevance here is s 226(2) which 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: (a) whether it is a conviction or charge; (b) whether the offence is a serious offence, and if it is whether it is a disqualifying offence; (c) when the offence was committed; (d) the nature of the offence and its relevance to employment that may involve ci (e) in the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision. 3 Forwarded to me on 20.12.2022. 4 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. -- 4 of 7 -- 5 [18] Also, it is in this context that any decision must be approached on the basis that the welfare and the best interests of a child are paramount.5 This is also consistent with s 360 of the WCA. [19] In support of his application for a blue card, the applicant underwent two psychological assessments mental health reports were obtained through the Department of Defence and provided by psychologists, Mr Steve Lawson and Ms Delphine Bostock. [20] Mr Lawson undertook an assessment in August 2021 and produced a report dated 21 August 2021. After interview and testing Mr Lawson diagnosed the applicant with Depression (3, Normal), Anxiety (4, mild), Stress (5, Normal). The report also contains his clinical assessment as follows: - Michael’s symptoms presented as reactive rather than endogenous in nature. Symptoms appear to be a normal response to concurrent stressors, both unique and common in nature. I did not feel he had a mental health disorder. - There were no major functional deficits identified or reported. To his credit, he was functioning quite well despite his numerous stressors. - Michael was self-critical when talking about his past civilian offenses. He reported a sense of contrition and accountability that is common of such a senior soldier. - In summary, Michael’s symptoms are sub-clinical and reactive to his challenging personal and occupational stressors. I expect he will respond well to a brief episode of care for supportive counselling and symptom management via an evidence based approach. [21] Mr Lawson’s report does not contain the detail of what he was told by the applicant, but he was clearly aware of the “civilian offences” and the report was to be used for his blue card application. It is reasonable to assume the detail of the civilian offences were given to Mr Lawson. [22] The other report obtained from Delphine Bostock, clinical psychologist is dated 23 August 2021. At that time the applicant was still in the Defence Force in Sydney. The background detail in the report sets out his circumstances in attempting to obtain a blue card to be able to assist his wife with the care of their grandchildren. Particulars of the offences are included in the background information. Also, his expressions of regret. There is some justification provided in that he is a believer in Naturalism, being non- sexual social nudity. However, as the offences were seen as sexual in nature they impacted negatively on his blue card Application. The report also considers other stressors in his life, including grief with the loss of this father and the Covid 19 lockdown and separation from his family. [23] Ms Bostock was aware that the report was to be used in his “appeal to the refusal of the blue card”. I consider it relevant that Ms Bostock was aware of the significance of the opinion she as providing, being that of an expert clinician to assist the tribunal in the review application. [24] Testing results under the Depression Anxiety and Stress Scale were consistent with the results from Mr Lawson. Depression was in the normal range, anxiety in the normal range and stress as in the mild range. Overall, the applicant presented as a: 5 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 5 of 7 -- 6 [25] ….resilient man despite current stressors. He described himself as generally coping well and that “the down time don’t last long”. He appears to manage day to day by keeping busy with work and exercise. Michael is supported by his wife of 43 years. [26] She then undertook a “risk assessment” having regard to the applicant’s previous conduct resulting in the convictions. Although some of his statements are at odds with the guilty plea, e.g. denial of masturbation, having regard to other factors such as family relationship and career, Ms Bostock opined that: [27] On the basis of the information provided, my preliminary opinion would be that Michael is low risk of reoffending, however a thorough risk assessment conducted independently of the services provided under BUPA would provide more robust evaluation of risk factors. [28] The Department submits that the negative notice should be confirmed for the following reasons. The offences referred to above are relatively serious insofar as they demonstrate not only a lack of judgment, but blatant disregard of those to whom witnessed his conduct. Also, despite his assurances the conduct will not be repeated, the applicant has not provided any evidence to explain his conduct or what triggered the behaviour. He lacks insight into the seriousness of his conduct. Mr Lawson and Ms Bostock were not called to be available for cross-examination so these issues could be explored and their evidence tested. Therefore, the tribunal should exercise caution when considering what weight should be given to their evidence. Importantly, once the applicant is issued with a blue card, he can work with children in without restriction, even though it is unlikely he will do so as the purpose of his application is care for his grandchildren. These are all valid points of concern. [29] Of greater concern in my view is that fact the offences he committed involved similar conduct as can be seen from the particulars referred to above. One can conclude from this that the penalties imposed, being fines and in two cases convictions recorded, did not seem to have any deterrent effect to stop him from engaging in similar conduct as recent as 2015. [30] This is also puzzling because the applicant has an otherwise unblemished record. He served in the Australian army for many years where discipline is a core requirement. He discharged that requirement through the ranks during his military career to reach the rank of warrant officer before retirement from active service. He continued to serve in the ADF reserve. [31] Also, there is nothing in the psychological reports referred to above which provides any explanation for the repeated conduct, other than perhaps his adoption of a naturalism philosophy. Even so, once convicted of the first offence, which intentionally involved exposure in front of two young females, given his adherence to discipline in the army, it is surprising he would offend again in a similar manner despite this philosophy. Then, after the second incident in 1992, having had to appear in court, admit his guilt and be convicted and fined, he offended again. [32] Although the applicant has repeatedly said he will not engage in similar conduct in the future, there has been no explanation of what triggered the conduct in the past. This lack of explanation and his recidivism creates serious doubt about his assurances that he will not re-offend in a similar manner. More importantly, it seems having regard to the past conduct, he does not discriminate about who observes his exposure, even the police, as occurred in the 2015 incident. This also leaves some lingering doubt as to firstly, whether -- 6 of 7 -- 7 he will reoffend, and secondly, whether innocent individuals including minors, might be witness to the conduct. [33] Although not decisive, I have also had regard to the affidavit filed by the applicant sworn on 15 February 2022 and filed on 4 March 2022. The content of the affidavit is not evidence, is objectionable, and insofar as it does not address any of the factual matters relevant to this review it is essentially inadmissible and carries no weight.6 It is of no assistance other than to provide some insight to the applicant’s approach to this review application. [34] There is no convenient way to summarise the content other than to say it is an incomprehensible jumble of assertions that challenges the jurisdiction not only of the tribunal, but the courts of Queensland and the constitution of the Commonwealth. In short, the applicant contends he is not bound by the laws of this state. This then leads to some doubt as his observance of the legal obligations of an individual who has been issued with a blue card and also his assurances of not re-offending again. One can only wonder as to his insight into his past behaviour, and his application for a blue card, when he seems prepared to adopt and rely on what is clearly a concoction of a prepared random submission by someone, other than himself, as to the validity of Australia’s and Queensland’s legal system, with no direct bearing on the case at hand. [35] Importantly, a blue card can be used for any child-related employment with children of all ages and all degrees of vulnerability. On cannot consider this application purely in the context of the applicant’s circumstances with his grandchildren, which are regretful. Conditions cannot be imposed on a blue card to address particular risks or the children with whom the applicant might be involved. [36] The applicant has made reference to and reliance on his rights under the Human Rights Act 2019 (Qld), however, as the paramount consideration is the rights and interests of children, any infringement on those right is justified.7 I therefore confirm the decision under review. [37] Because the application concerns the applicant’s grandchildren, there will be a non- publication order pursuant to s 66(1)(c) of the QCAT Act [38] Therefore, this is not an exceptional case and the decision of respondent is confirmed 6 Despite s 28(3)(b) of the QCAT Act. 7 Human Rights Act 2019 (Qld), s 13(2)(b). -- 7 of 7 --