Bell v Director-General, Department of Justice and Attorney-General [2017] QCAT 433

CITATION: Bell v Director-General, Department of Justice and Attorney-General [2017] QCAT 433 PARTIES: Clifton Arden Bell (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML093-17 MATTER TYPE: Childrens matters HEARING DATE: 22 September 2017 HEARD AT: Toowoomba DECISION OF: Member Wood DELIVERED ON: 06 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. That this is an Exceptional Case in which it would not be in the best interests of children and young people for a Blue Card to be issued to the Applicant. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice. FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Application for Removal of Negative Notice – Applicant has convictions for significant offences including domestic violence and violence offences, alcohol and drug related in addition to property offences – none of the offences “serious offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether the protective factors outweigh the risk factors -- 1 of 9 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working With Children (Risk Management & Screen Act) 2009 (Qld), s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 TAA [2006] QCST11 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms Lilly Marinovic – Aboriginal and Torres Strait Island Legal Service RESPONDENT: Mr Iain McCowie – Government Legal Officer REASONS FOR DECISION [1] The Applicant has endured significant hardship and sadness during his life with his Mother passing away when he was 5 or 6 years of age and his Father passing away when he was 8 or 9 years of age. The Applicant is now 34 years of age having been born on 14 November 1982. He was born and has grown up in Cherbourg. After the passing of his parents he was raised by his Aunties on his Mothers’ side with whom he has a good relationship. During his teenage years he commenced using drugs and alcohol as this is what he saw as normal when he grew up and fell into that pattern. [2] The Applicant attended Cherbourg State School and Murgon High School completing Grade 10 and then completed courses in numeracy and literacy at TAFE. He then undertook work experience through programs including in Carpentry and in a Tannery and ultimately from 2009 until 2013 as an apprentice in Joinery through the Cherbourg Council. He took time off to care for his Grandmother and has also recently cared for his partner’s Grandmother from July 2016 until April 2017 when she passed away. [3] He has had two significant relationships in his life with three children from his first relationship who are aged 15, 12 and 10 and two children from his second relationship. His second relationship commenced in 2008 and they have two children aged 7 and 4. That relationship continues however there have been periods of separation during the course of that relationship. [4] In early 2015 the Applicant took a job as a Transport Driver at the Cherbourg Medical Centre as a result he was involved in many community activities including helping with Barbeques to fundraise for diabetes and otherwise working in the Cherbourg community in assisting elders with their work. He assisted with sports programs but also with his own children where he was -- 2 of 9 -- 3 involved in sports in volunteering and assisting as required. As a result of the employment as a Transport Driver he was required to hold a Blue Card and applied on 1 October 2015. On 14 March 2017 a Negative Notice was issued by the Respondent as a result of which he lost his employment with the Medical Centre. It is this against this Decision that he appeals. The Reasons document issued by the Respondent was in evidence in these proceedings. A significant factor in the Respondent’s decision to issue the Negative Notice was the extensive criminal history which the Applicant has and the circumstances of the offending behaviour. [5] The Applicant’s criminal history spans a period of 15 years from 1997 with the most recent offence being committed on 13 September 2015. This is at about the time that the Applicant applied for the issue of the Blue Card. His history includes drug offences, property offences, assaults and public order offences. [6] The Applicant gave evidence in the proceedings and agreed that he had committed domestic violence offences and that the Applicant’s current partner had taken out a Domestic Violence Order against him in 2010. It is apparent from the circumstances of the making of the Domestic Violence Order, the breach of the Domestic Violence Order in 2011 and the Assault Occasioning Bodily Harm dealt with on 9 September 2004 that these violent offences have been committed when the Respondent has been adversely affected by alcohol. [7] The circumstances of the making of the Domestic Violence Order are that the Applicant had been drinking for at least 24 hours when an argument commenced between the Applicant and his Spouse. The argument continued when they returned home that evening and the Applicant became aggressive towards her, pushing her in the chest and as she felt threatened she grabbed a steak knife. As she felt fearful for her safety she lashed out with the knife, striking the Respondent’s hand and then leaving and reporting the matter to the Police. The Applicant’s recollection of this event is different. His recollection is that after he pushed the Aggrieved he held her down on the floor to take the Knife off her. He accepts however that he was adversely affected by alcohol. I prefer the version of this event as outlined in the Application for the Domestic Violence Order which is the version of the event which was recorded at the time of the incident. This version is consistent with the Aggrieved’s version. Overall given the Applicant’s intoxication at the time of the offence I consider that his memory is unreliable. [8] To his credit however he acknowledges that the behaviour was inappropriate and that “things can happen when affected by alcohol”. He expressed remorse about this incident and the breach of Domestic Violence which involved him forcing entry into a residence in which he and his partner were living at the time. [9] On the occasion of the breach of the Order, the Respondent kicked in the front door of the residence pushing his partner over the couch causing her to fall to floor and then stood over her with clenched fists verbally abusing -- 3 of 9 -- 4 her and threatening to “bash her”. At the time that he was spoken to by the Police in relation to this event he made admissions to consuming one carton of XXXX Gold and kicking in the door. He was aware of the Domestic Violence Order. [10] The other significant violent offending behaviour occurred in 2004. That offending involved an assault on the Mother of his children from his first relationship. The incident commenced by means of a verbal argument between the Applicant and his former partner when the Applicant became aggressive towards his partner and punched her, hitting the partner in the face four or five times and then once he had stopped punching her and she had fallen to the ground kicking her a couple of times. He then went and sat in a chair in the lounge room when his partner left and made a complaint. [11] The Applicant most recently has a number of offences relating to bringing alcohol into the Cherbourg area in breach of the declaration of Cherbourg as a restricted area under the Liquor Act. The Applicant has been convicted of this offence on a number of separate occasions as follows: (a) 28 October 2015; (b) 3 June 2014; (c) 29 April 2014; (d) 30 March 2010; and (e) 18 August 2009. [12] In addition, the Applicant has a conviction for Possession of Dangerous Drugs on 4 November 2014. The circumstances of the Dangerous Drug Possession are that the Applicant was intercepted for a random breath test and a vehicle search for restricted liquor. The breath test was negative and no restricted liquor found. As a result of search however the Police located a small plastic bag in the driver’s door with approximately 100 clip seal bags and green leafy material weighing less than 1gram. The Applicant alleged he did not know that the material was in the vehicle. He did state that the material was cannabis stem and that he was aware that it was an offence to possess it as he had attended a drug diversion program a week earlier. [13] In relation to his alcohol usage, the Applicant says that he has now changed his behaviour as he now has a greater appreciation of the adverse effect that alcohol was having on his life. He agreed that he had an issue with alcohol at times during his life, but that currently he was only drinking a six pack once a week when he would watch football etc. In the past he would drink a carton of spirits on a weekend. He thought this was normal because others in the community did it. He appreciates that the domestic violence was as a result of his alcohol consumption and that for a period in early 2016 he had abstained from alcohol completely for 2 months. He says that he returned in order to socialise. -- 4 of 9 -- 5 [14] In terms of the impact of drinking, he says that he was really bad when he was 12 to 16 years of age drinking, using drugs, sniffing petrol and committing offences. When he drinks he gets into arguments and now recognises that it is “not good for children to see…” people drinking excessive amounts of alcohol. He recognises the impact it has played on his criminal history is “a lot I would say”. In terms of the impact of his violent behaviour, he was not sure of the impact the assault incident in 2004 might has on his former partner but recognised that he felt bad for having done it. He accepts that she would be angry because of that violence. [15] He says that on the occasions on which the domestic violence occurred there were no children nearby or in the house. He does recognise however that domestic violence affects children even if they do not see it. [16] When questioned about the offences of bringing alcohol into Cherbourg in breach of the prohibition, the Applicant says that he was bringing alcohol in for others “…because he thought it would help them”. He recognises that this excessive alcohol consumption and domestic violence is overall not helpful for the community and that he has now “learnt my lesson” and that he now does not drink spirits because it makes him “do stupid stuff”. [17] Since working at the health centre in Cherbourg he has developed relationships with workers there who he is able to speak to about any personal problems that he has and has learnt conflict resolution skills in that he now walks away from arguments and upon calming down would return to it. He has not offended since 2015 and holds a current drivers licence. He is confident that if his Blue Card were returned to him that he would be able to obtain employment. [18] Overall I found the Applicant to be an honest witness whose gaps in recollection would appear to be largely related to the alcohol consumption at the time of the offending behaviour, rather than an attempt to conceal the facts. He was responsive to questions and willing to make appropriate concession as required. He impressed me as someone who was genuinely attempting to make changes in his life for the better for the benefit of himself and his family. [19] The Applicant’s Partner gave evidence in the proceedings. She confirmed that there had been some periods of separation between the Applicant and her during the period of their relationship however they were relatively short. She confirmed that there has been no actual violence towards her since the breach of domestic violence in 2011 and confirmed that the Applicant’s conflict resolution skills had improved and that when the Applicant gets angry now he goes away, on one occasion for a couple of days in order to calm down. She says that the Applicant’s drinking is now 2-3 drinks every month. This would appear to be inconsistent with the Applicant’s own evidence. [20] In terms of the Domestic Violence Order in 2010, she confirmed in her evidence that there had been some incidents before October 2010 but they involved alcohol, the details of which she couldn’t “really remember”. Whilst -- 5 of 9 -- 6 there continues to be some arguments over little things now, the resolution skills that the Applicant has developed means that they are able to be discussed and resolved without resorting to violence. The current alcohol consumption, which on her evidence was 2-3 drinks per month, has been the same since the middle of last year one of the reasons for the reduction was to “cut down so he can try and get a Blue Card as well”. There have been less arguments since then. [21] In the material available to me there were references from friends and family which attest to his genuine desire to support his family including his extended family. They attest to the relationship with his children and cousin and describe him as a well-mannered and a humble man. They attest also to his assistance in the community including assisting with junior sporting teams and mentoring young boys playing basketball. STATUTORY FRAMEWORK [22] The Applicant applied for a Blue Card by Application dated 1 October 2015. That was refused with a Negative Notice issued on 14 March 2017. [23] None of the offences with which the Applicant has been convicted are “serious offences” as that term is defined. In the circumstances a Positive Notice must issue unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the Applicant to be issued with a Positive Notice.1 The Respondent was of the view that it was an exceptional case and issued the negative notice. [24] The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case2 however the Tribunal must exercise its discretion in each case within the parameters of the legislation.3 [25] There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists.4 [26] In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card. [27] The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.5 1 Section 221 (2). 2 WWCRMSA, s 226. 3 Commissioner for Young People and Child Guardian v FGC [2011] QCATA 291. 4 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28. 5 WWCRMSA, s 6. -- 6 of 9 -- 7 [28] In making my Decision I need to take into account the protective and risk factors.6 [29] In making my Decision I need to make the correct and preferable decision7 and proceed by way of a fresh hearing on the merits. RISK ASSESSMENT [30] There are a number of protective factors in this case: a) The Applicant has not had any convictions for any criminal behaviour since his appearance in the Cherbourg Magistrates Court on 28 October 2015. This was for an offence committed on 13 September 2015. b) That notwithstanding a lengthy history of in particular alcohol abuse from his teenage years, he has reduced his alcohol intake down to 6 lights beers each week when socialising with others. He restricts his intake by only purchasing a small amount of alcohol. c) The Applicant has developed insight into the effect of alcohol on his own behaviour and into the behaviour on others and its effect on the community as a whole, in that consumption of alcohol is often the precursor to violent behaviour. d) The Applicant has supportive friends, family and community with whom he is now able to discuss any concerns that he may have in his life and is able to identify former work mates at the health centre as supports in the community if required. e) That he has recently developed insight into the effect of his domestic violence behaviour on his former partners and the children who become aware of domestic violence whether or not they witness it. f) He is able to identify his children as being a motivating factor for him to remain a contributing member of the community, including by continuing to maintain a low alcohol intake and avoid offending behaviour. [31] There are risk factors: a) The Applicant has lengthy criminal history which commenced in the Murgon Children’s Court on 25 October 1997 for offences involving possession of drugs, property offences including robbery with actual violence, wilful destruction, entering premises and committing indictable offences, breaches of domestic violence and assault. 6 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492. 7 QCAT Act, s 20. -- 7 of 9 -- 8 b) Whilst the Applicant is able to identify that alcohol is a precursor for him to committing violent offences in particular in domestic situations, he has not undertaken any formal alcohol rehabilitation or counselling and continues to consume alcohol although at a much more moderate level than in the past. c) In examining the Applicant’s criminal history, there has been periods in that history where he has not committed any offences, for example there were no offences in the period from 5 July 2011 until 29 April 2014 being a period of 33 months. The Applicant then committed 3 offences within a period of 4 months involving possessing dangerous drugs and bringing alcohol into his community in breach of a prohibition under the Liquor Act the period of not offending is short relative to his history. d) The Applicant has in evidence attempted to minimise his involvement in his offending behaviour and whilst he has developed some insight into the effect of his offending behaviour on others, that is limited insight. APPLICANT’S SUBMISSIONS [32] The Applicant submits that this is not an exceptional case and that a Positive Notice should be issued to him. The Applicant’s legal representative points to the many positives in his life currently including his reduction in alcohol intake, the period since 2015 without any further offending and the support that he has in the community. They submit that given the changes that he has made in his life that without offending means that this is not an exceptional case. RESPONDENT’S SUBMISSION [33] The Respondent filed written submissions prior to the Hearing and supplemented them with oral submissions. They concede that the Applicant has expressed some insight into his offending and effect that violence and alcohol on others. He is able to identify the harm to children and some of his support network including the interaction with former co-workers. The Respondent submits however that it is an exceptional case having regard to the very lengthy criminal history, most of which is alcohol related and that the development of insight is recent and that it is too soon for the Tribunal to be satisfied that it is complete insight. CONCLUSION [34] The Applicant in 2015 was employed as a Delivery Driver with the local health centre at Cherbourg. He required a Blue Card as he was transporting children. The Applicant is entitled to have a Blue Card issued unless this is an exceptional case. I have summarised earlier in this decision what this phrase means. -- 8 of 9 -- 9 [35] I am concerned that Applicant’s criminal history extends over a period of 18 years and whilst it is true that there has not been any offending behaviour since September 2015, it is significant that the offending behaviour most recently committed was the bringing of alcohol and in particular spirits into the Cherbourg community. The Applicant is now able to identify the effect of the consumption of spirits on people’s behaviour including that it leads to violence in the community. [36] The Applicant identifies that this domestic violence is detrimental to the welfare of children, whether or not they witness the domestic violence. The Applicant has reduced his alcohol intake and developed a support network. He is to be commended for taking these rehabilitative steps. [37] I am concerned that the Defendant’s criminal history shows that he is able to live a lifestyle which does not draw him to the attention of the Police for a period of time before then committing further offences. As I have outlined previously, I have identified a period from 2011 to 2014 of 33 months when no offences were committed and then offending behaviour commenced again. [38] I am concerned that the development of insight and the changes in behaviour, including the reduction in alcohol which at least in part are an attempt to obtain a Blue Card, are of an insufficient duration. [39] I am also concerned that the Applicant, whilst he is able to identify that alcohol has been a “problem” for him in the past he has not sought any counselling or formal assistance for alcohol abuse and continue to consume alcohol. [40] Having regard to all of the facts in this case I find that the risk factors outweigh the protective factors and I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a Positive Notice to be issued to the Applicant. -- 9 of 9 --