CAT v Director General, Department of Justice and Attorney-General [2017] QCAT 69

CITATION: CAT v Director General, Department of Justice and Attorney-General [2017] QCAT 69 PARTIES: CAT (Applicant) v Director General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML081-16 MATTER TYPE: Childrens matters HEARING DATE: 16 December 2016 HEARD AT: Hervey Bay DECISION OF: Member Milburn DELIVERED ON: 9 March 2017 DELIVERED AT: Hervey Bay ORDERS MADE: 1. The decision of the Chief Executive Officer of the Public Safety Business Agency that the applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case. 2. The tribunal prohibits the publication of any information in these proceedings that could identify the children in any way. CATCHWORDS: BLUE CARD – EXCEPTIONAL CASE – where applicant has a criminal history – where none of offences were serious or disqualifying – criminal history including crimes of violence – where review sought so applicant can engage in child related employment – where protective factors do outweigh risk factors – where the applicant’s case is not exceptional NON-PUBLICATION ORDER – where contrary to the public interest to identify names of the applicant’s children -- 1 of 18 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 167, s 220, s 221, s 226, s 318, s 319, s 335, s 337, s 338, s 357, s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 24, s 40(2), s 66 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCAT 828 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 TAA, Re [2006] QCST 11 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 Commission for Young People v V (2002) 56 NSWLR 476 REPRESENTATIVES: APPLICANT: CAT RESPONDENT: Director General, Department of Justice and Attorney-General represented by Ian McCowie, Government Legal Officer REASONS FOR DECISION A preliminary matter [1] Correctly, the applicant nominated Public Safety Business Agency (PSBA) as the respondent in these merits review proceedings. PSBA was the original decision maker with respect to his ‘blue card application'. [2] Prior to the hearing date, the respondent restructured. As a preliminary issue, I was invited to give leave to change the name of the respondent to the Director General, Department of Justice and Attorney-General (DG,JAG). I did so and accordingly, any reference to PSBA is a reference to DG,JAG. -- 2 of 18 -- 3 [3] In a proceeding in the tribunal's review jurisdiction, so far as is practicable, the official description of the decision-maker must be used as the party's name instead of the decision-maker's name.1 [4] I refer to the decision-maker as the respondent. What is this application about? [5] The Working with Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act) is the central piece of legislation in this case. [6] The applicant lodged an application with the respondent under the WWC Act to be issued a positive notice and a blue card. The process for deciding the assessment is governed by the WWC Act. [7] The Queensland Police Service (QPS) informed the respondent that it had relevant police information about the applicant. The respondent considered the information provided by QPS. [8] Regarding the applicant, the QPS information did not contain evidence of a ‘serious offence’, as defined under the WWC Act. The default position in those circumstances is that unless the application before it is exceptional, the respondent must provide the applicant with a blue card.2 [9] The respondent concluded that the application was exceptional and, contrary to the default position, by notice dated 9 March 2016 (the rejection notice), the respondent gave notice declaring the application is refused (a negative notice).3 The respondent attached its detailed reasons (the respondent’s reasons), also dated 9 March 2016, to the rejection notice. [10] The respondent rejected the application due to concerns about the applicant’s criminal history, the applicant’s disclosed conduct with alcohol abuse between 2003 to 2012, and incidents of domestic violence between 2006 and 2012. The respondent rejected the application in part because it appeared that certain acts of domestic violence occurred in the presence of children. The respondent stated that issues about alcohol abuse and family violence suggest the applicant had difficulty in decision-making, maintaining self-control and responding to conflict. Basic principle – the best interests of children [11] The tribunal must consider that the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.4 The tribunal has regard to this principle in the context of reviewing child related employment decisions.5 1 Queensland Civil and Administrative Tribunal Act 2009 s 40 (2). 2 Working with Children (Risk Management and Screening) Act 2000 s 221(1). 3 Working with Children (Risk Management and Screening) Act 2000 s 220. 4 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6. 5 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360. -- 3 of 18 -- 4 [12] A blue card authorises a person to work with children in any environment, whether supervised or not. [13] The screening of persons in certain employment or carrying on particular businesses is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland.6 The determinative framework contained within the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) [14] If the respondent refuses to issue a blue card to a person, that person may apply to the tribunal for a review of the decision. [15] The tribunal ‘steps into the shoes’ of the respondent and makes a decision7 based on questions of law and questions of fact. That is, a merits review. The tribunal does not review the decision-making process of the respondent but rather makes a fresh decision. In doing so, the tribunal hears matters in a relaxed and informal manner. The rules of evidence do not bind the tribunal. [16] The tribunal applies the same law as the respondent in considering an application for the issue of blue card to a person. [17] In a proceeding for a review of a reviewable decision, the tribunal may8— a) confirm or amend the decision; or b) set aside the decision and substitute its own decision; or c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. [18] The tribunal does not issue blue card notices, but it can direct the respondent to: a) issue a positive notice to an applicant (in which case an applicant will receive a blue card); or b) issue a negative notice to an applicant (in which case the applicant will not receive a blue card); or c) confirm the decision of the respondent; or d) declare that the decision of the respondent that the applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case. 6 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5. 7 The decision of the tribunal is said to be ‘the correct and preferable decision’ - Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20. 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24. -- 4 of 18 -- 5 [19] The tribunal must be satisfied it is in the best interest of children to direct the respondent to issue a blue card to an applicant, or to set aside the decision and replace it with a decision that there is no exceptional case. [20] Often, as in this case, the tribunal must decide the fate of an application, where the applicant has suffered a criminal conviction or convictions. [21] The WWC Act provides that some convictions are for ‘serious offences’9 and others are for offences other than for a serious offence (non-serious offences).10 The categorisation of the offence is important because it determines the default position. [22] For an applicant who has a conviction for a serious offence, the default position is that the respondent must issue a negative notice (that is, deny the applicant a blue card). For an applicant who has conviction for a non- serious offence, the default position is that the respondent must issue a positive notice (that is, grant the applicant a blue card). In this case, both the respondent and the tribunal consider the application in the latter context. [23] However, in either instance, the decision maker must consider whether the case is exceptional. A finding that a case is exceptional will result in a reversal of the default position. [24] Where the applicant has a conviction for a serious offence, the case is exceptional if the decision maker is of the view that it is in the best interests of children to issue an applicant with a positive notice. That is, only in an exceptional case will an applicant receive a blue card. [25] Where the applicant has a conviction for a non-serious offence, the case is exceptional if the decision maker is of the view that it is not in the best interests of children to issue an applicant with a positive notice.11 That is, only in an exceptional case will the applicant not receive a blue card. [26] Of course, it is common for an applicant to have more than one conviction. Unsurprisingly, in those circumstances where there is a serious offence included as one of several (or many) convictions, then the default position is that the respondent must issue a negative notice. Where all the offences are non-serious, then the default position is that the respondent must issue a positive notice. [27] In assessing whether the case is exceptional, the tribunal must consider the objects of the WWC Act and the matters included in the WWC Act – as well as anything else the tribunal regards as relevant to the decision. [28] It follows that the tribunal may and should consider things other than convictions. For example, the tribunal may consider uncharged acts or charged acts that did not lead to a conviction. 9 A ‘serious offence’ is defined in is 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 10 The Working with Children (Risk Management and Screening) Act 2000 (Qld) also provides for ‘disqualifying offences’ however a person who suffers a disqualifying offence conviction becomes a ‘disqualified person’ and may not make an application for a blue card. Accordingly, I have not considered that type of offending behaviour within the context of this summary of the determinative framework under the Act. 11 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2). -- 5 of 18 -- 6 The position in this case within the determinative framework [29] In this case, the applicant has many convictions for ‘non-serious’ criminal offending. The applicant does not have any serious criminal convictions, per the terminology of the WWC Act. If I was to deny the applicant a blue card, I must find that this case is exceptional. [30] If the case is not exceptional, I am to direct the respondent to issue the applicant with a blue card (a positive notice); or declare that this case is not exceptional, which will have the effect of remitting the matter back to the respondent. In doing so, the respondent is bound to follow the finding of this tribunal. How does the tribunal determine whether this case is exceptional? [31] Courts and tribunals have not established any general rules with respect to what is an exceptional case.12 Each case is determined on its merits. The tribunal should not take a prescriptive approach. In Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 his Honour Justice Wilson said at [33]: We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [32] Based on this approach, I must consider whether this case is out of the ordinary, unusual or special. Only if it is, could I appropriately regard the case as exceptional. [33] The tribunal is not to determine the question predicated on the basis that there is to be no risk. That is not the appropriate test. The relevant function of the tribunal is to undertake an analysis and evaluation of risk.13 The weight the tribunal applies to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly. [34] In the context of determining whether it is in the best interest of children to find this case exceptional, the tribunal should consider many factors. Of great importance are the protective factors that exist, relevant to the applicant. The tribunal must identify and balance protective factors against risk factors.14 The respondent’s position [35] Correctly, the respondent considered the central focus of the WWC Act to be the protection of children. It correctly assessed the application, as I do, 12 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, per Phillipides J. 13 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, at paragraph 58. 14 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492. -- 6 of 18 -- 7 on the basis that it is not intended to impose additional punishment on a person who has police or disciplinary information, but rather is intended ‘to put gates around employment to protect children from harm’.15 [36] The respondent conceded that the applicant had not been convicted of a serious offence as defined in the WWC Act, however ‘has been convicted of an offence other than a serious offence as defined in the Act’.16 In doing so, the respondent conceded that the Act provides they must issue a positive notice unless it is an exceptional case.17 [37] The respondent assessed whether this case was exceptional having regard to: a) the paramount consideration in making an employment screening decision of the Act; b) factors required to be considered under the Act; and c) anything else which was relevant to its decision.18 The applicant’s criminal history [38] The applicant has suffered eight entries on his criminal history, from 1998 until 2012. All the entries relate to proceedings in magistrates, or equivalent, courts. The applicant has no convictions in any superior court. The most substantial penalty imposed upon the applicant for offences before any court since 2005 was a fine in the sum of $1500 (imposed with respect to a conviction for assault occasioning bodily harm and breach of a domestic violence order - both arising from an incident on 5 November 2011). Prior to that time, the applicant suffered a combination of fines and community service. Stalk/intimidate with intent to cause fear of physical/mental harm  Date of offence: 8 January 2004 – 11 January 2004  Age of applicant: 24 years  Details of complainant: female 22 years The complainant was the girlfriend of the applicant. The applicant was living with his brother. The brother asked the applicant to move out of their residence. The applicant became angry and threw beer bottles and dishes from the kitchen. The complainant was in the bedroom. The applicant began to yell at the complainant stating she was making the brother choose between her and him. The applicant said threatening words to the complainant. The court imposed a fine of $100 and imposed a nine-month good behaviour bond on the applicant. 15 Second reading speech: Commission for Children and Young People Bill, page 4391. 16 PSBA reasons dated 9 March 2016 at [2.3]. 17 Ibid. 18 Ibid, at [2.4]. -- 7 of 18 -- 8 Dangerous operation of the vehicle and public nuisance  Date of offence: 24 April 2005  Age of applicant: 25 years The applicant, who was heavily intoxicated by his own admission, oversteered while turning a corner and the vehicle he was driving struck a power pole. The court imposed a fine of $500 for the dangerous operation of vehicles and $50 for public nuisance. Assault occasioning bodily harm and breach of domestic violence order  Date of offence: 5 November 2011  Age of the applicant: 31 years  Details of complainant: female, age not stated During the early hours of the morning of the date of the offence, police went to and entered a home, where they saw the complainant sitting on a chair with blood flowing from a wound to the upper right side of her head. Police also observed bleeding from a wound to her right ear. The complainant said that she, the applicant, and their five children had been at a barbecue. The applicant was intoxicated. The complainant did not want the applicant to drive her and the children in his condition. Another person stood in front of the applicant to try to stop him driving their car while intoxicated however the applicant resisted and placed three of the children in the vehicle. The other two were staying at the residence. The applicant demanded that the complainant get into the vehicle and she got into the front passenger seat. While driving home, the applicant punched the complainant with his left fist to the side of her face. He then held the steering wheel with his left hand and used his right fist to punch the complainant several times to the right side of her face, neck and jaw area. The complainant called police while outside the vehicle opening the gate to the yard. Police obtained an assessment of breath from the applicant which gave a reading of 0.098% BAC. The presiding magistrate imposed a fine of $1500 on the charges. Contravene direction/assault or obstruct police  Date of offence: 7 October 2012  Age of applicant: 32 years On the morning of the offence, police attended the applicant’s residence in relation to a report of a disturbance. Police saw the applicant in the backyard, then issued several directions to the applicant to open the front door however he refused. The applicant’s partner attended and opened the front door. Police spoke to the applicant’s partner in the living area of the home. The applicant attempted to enter the dwelling and interrupt the questioning. He did so. He ignored the direction by police to exit the home. -- 8 of 18 -- 9 Police attempted to handcuff the applicant and he fled to a nearby field. Police apprehended the applicant, who continued to violently struggle and he struck one of the police officers to the upper chest with his right forearm. The applicant was fined $1000 on the charges. Applicant’s background and submissions to the respondent [39] The applicant presented a submission to the respondent on 11 September 2015. In that submission, he acknowledged his criminal history as correct and said it (the history) concerned him when he applied for his blue card. He explained the reason for applying for a blue card as being that he is the coach of soccer team and he wanted to continue in that regard. In support of his application he provided a personal reference from his girlfriend, who was aware of his history. [40] In his submissions to the respondent, the applicant described his life as one where he has settled with his girlfriend who together with her two children have moved in to live with him. He cares for his partner’s children on a regular basis. He appreciates the concerns raised by reference to his criminal history and was grateful for the opportunity to provide an explanation. He said that he has had a problem with drugs in the past and he has remained drug-free for over 10 years. He acknowledged that it took him a long time to ‘grow up’ and ‘grow out of silly behaviours’. He acknowledges that the domestic violence charges and assaulting police charges are of most concern. He acknowledged a long battle with anger issues, stemming from childhood issues. He said: This does not excuse my behaviour as I find it disgusting and certainly was ashamed by these actions. I was working long hours travelling long hours and in an unhealthy relationship – once again, no excuse only considering factors. [41] In his written submission dated 22 September 2015, the applicant went on to talk about protective factors including the self-improvement measures he has taken to address his issues with respect to behaviours. He explained that he has attended men’s support groups to learn ways to cope with aggressive behaviours. He also sought the use of the psychologist to help him learn other means of control. He has attended services several years ago, and they were of great assistance. He went on to say that the church is now an important part of his life describing it in this way: The most successful measure I have taken to transform my life was turning my heart to the Lord and giving regular times to study the Bible and pray. [42] On 1 December 2015, the applicant provided further oral submissions to the respondent. He said that he felt counselling was successful and ceased counselling because of the progress he had made. Because of counselling he had made significant changes since the time of his offending. [43] He spoke of the time of his offending behaviour in about November 2012, where police were involved. He explained that he had just found out a female child close to him had been sexually molested and her mother was not keen to intervene or assist. He was very upset when he came home to -- 9 of 18 -- 10 find the house occupied by children had been trashed, with alcohol everywhere and the kids off playing in the creek across the road. While he was upset, he said this does not excuse his actions. [44] The applicant provided a further written submission to the respondent on 1 February 2016. During those submissions, he spoke of ‘testing times’ since his last criminal behaviours and said that he was able to work through those issues without anger. He spoke of an instance where, through force, the mother took his youngest son while he (the applicant) was at work. He said that the incident tested his new skills, and while he found the situation frustrating he ‘remained in control and within two weeks a recovery order was granted and my son was back in my care’. Speaking of that incident and beyond, the applicant described his personal progress in these terms: This is one example there are issues that face us all regularly and I now appreciate other people’s views and don’t place a high importance on being correct. Much prefer being happy. I don’t take matters into my own hands anymore and realise the services available are in place to serve and protect our community and would gladly use them. I now also live a healthy physical lifestyle which complements the counselling work I have done. I very rarely drink which has caused issues for me in the past. When I do, it is in moderation and good company. My girlfriend and I have a loving relationship built on honesty, trust and open communication. We have 6 children between us and the most enjoyable and fun things can also get challenging. We have lived together close to a year and there is never any fear that things will get out of hand. We share the load running the house, communicate when we get agitated, tired or stressed out, which is rare, however the controls are there. The applicant’s evidence [45] At the hearing, the applicant gave evidence about his current lifestyle, where he emphasised the positive effects of his exercise regime and healthy diet. He spoke of his positive relationship with his partner and the fact that they are successfully raising children together. [46] The impetus for applying for a blue card was his desire to continue coaching children and to work in the disability sector, where he identified a prominent service agency, aiding disabled clients, as a prospective employer. [47] He described the difficulties he had as a child and the use of illicit drugs from an early age. As a young person, he described himself as having feelings of being ‘bullet-proof, and gravitating to older people, who were not a good influence on him. [48] The applicant acknowledged his criminal history and spoke of his impulsive nature at the time which, combined with his lack of ability to deal with anger management issues and substance abuse, created an environment where he offended, and in doing so harmed his family. [49] He described the relationship he had with his former partner as not a healthy relationship. -- 10 of 18 -- 11 [50] The misuse of alcohol was a substantial problem for him during that period, where he acknowledged he would ‘binge’ drink to excess. He gave evidence that now his consumption of alcohol is controlled and minimal. [51] He described the criminal events of 2011 in some detail; describing his part as ‘disgusting’. He acknowledged the effect that his actions had on children, who were quite young. [52] He gave evidence that he understands the way in which his actions, including violence towards women, cannot be tolerated. He spoke of his own exposure to domestic violence as a child and said that he did not want to continue in that way, or to pass on these negative attributes to his own children. He acknowledges the offending behaviour which included the assault occasioning bodily harm on his partner and consequent breach of domestic violence order in 2011. He says he was involved in a drinking game which led to his intoxicated state. He acknowledges the impact on his then partner and children. After 2011, he obtained further counselling and that assisted him. The relationship with his (then) partner ceased some six months after the incident. He began seeing his counsellor for regular sessions. [53] He spoke of the counselling sessions that he obtained from his pastor and at that time he was introduced to the Bible and a church, where he found something that settled his behaviours. He also spoke of his involvement at a men’s group and the interaction with others caused him to be less shy. [54] He spoke of the incident involving police in 2012 and acknowledged that he was involved with the church at that time, but lapsed in his behaviour. He spoke of the circumstances in the household where his children were living at the time as a trigger. He also spoke about his unsettled state upon receiving news of a child close to him being sexually assaulted. [55] He acknowledges that he should have behaved in a much better way when dealing with police. He spoke positively of the work the police do and apologised for creating an additional burden to them in 2012. He described the incident involving police in 2012 as his last instance of poor decision- making and that he is now much more controlled. He spoke of strategies that he has implemented to deal with his former poor behaviour. He spoke of the poor choices that he made then and the strategies to deal with similar issues should they arise in future. Through counselling sessions, he says that he has changed the way he responds to circumstances and is now a much calmer person. [56] He gave evidence that he believes he is now well-equipped to deal with issues should a triggering event occur again in future. [57] He says that there have been triggering events since 2012. He spoke of his decision to seek a recovery order, when required, and the positive effect that calling upon others to assist him through the legal system was beneficial. He spoke about engaging a lawyer who helped him through that difficult situation to obtain the recovery order. He remained calm in those -- 11 of 18 -- 12 circumstances and believes that he would continue to act in a calm and measured manner, even when confronted with highly stressful situations in the future. [58] The applicant spoke of counselling sessions with a psychologist as providing considerable benefit to him. He is a much happier person and he is now slow to respond to stressful events. He says that he can differentiate between the very important and less important, which helps him to remain in control of his emotions better than was previously the case. [59] He says that he finds solace in prayer and he prays daily. He spoke of the personal satisfaction he receives from coaching children in soccer. The evidence of the applicant’s partner [60] The applicant’s partner gave evidence to the tribunal in written form, and she appeared at the hearing. [61] She conceded that she and the applicant do argue from time to time, but the applicant can ‘walk away’, even in stressful situations, without losing control. She described him as being easy-going and relaxed; and a person who can maintain balance. [62] She supported the applicant’s evidence by attesting that he only drinks socially and moderately. [63] She spoke of the applicant’s community involvement and the way in which the applicant tries to unite the blended family. He supports the family and cares for the children (with a loving heart). She does not question his behaviour at all. [64] The applicant is an educated person who says that she has never felt threatened during the relationship. They have been together for some time and she says the applicant is open and honest with her. She was aware of the criminal history and found the specific content something of a surprise, however she is accepting of it. [65] She spoke of the applicant’s ability to care for the children in a positive way. She is of the view that the applicant is a ‘changed person’ and she has no concerns about his parenting ability. He has been a positive influence on the children, citing the fact that her 4-year-old now eats vegetables as an example of the positive influence that the applicant has in their lives. She said the applicant can be firm when necessary with the children, but that her children thrive in his company. She said that he is patient with children even in stressful circumstances and that the applicant is conscious of stress in his life. The evidence of psychologist [66] The applicant produced a letter from a psychologist, who was not called, to attest to the way the applicant applied himself thoroughly to the therapeutic -- 12 of 18 -- 13 process that she undertook with him in 2011-2012. The psychologist described the applicant’s progress in these terms: This included working through significant early childhood issues including the reported parental conflict, and separation while he was young, physical abuse by both his father and stepfather, the death of his stepbrother and high mobility and rigidity of his family during his schooling years. He noted the parallels between his early conditioning and the then repeated behaviours. (The applicant) had some contact with the justice system, although no incarceration. (The applicant) had, at the time of the initial contact being drug-free for 3 years, having had an addiction to marijuana since the age of 13. Anger management strategies, and psychoeducation regarding power and control issues, and a modified CBT (conitive behaviour therapy) approach with interpersonal therapy formed the basis of the therapeutic process. My last appointment with (the applicant) was on 7 December 2012. Throughout the year, there was a DSM IVR Consideration of an Impulse Control Disorder due to substance dependence on a provisional consideration of a mood disorder NOS. The evidence of the senior pastor [67] The applicant’s senior pastor, from the church where he worships, gave evidence to the tribunal in written and oral form. [68] The pastor said that he has known the applicant for nearly four years as a regular attendee at church. He has been around to see the applicant interact with children. He describes children as being ‘a big part of the church’. The pastor says that he has not seen evidence of a relapse of past behaviours. He has watched the applicant with his children and he understands he is separated from his former partner, but his observation of their interactions now is that they are cordial. [69] The pastor spoke glowingly of the adult’s abilities and said of the adult that he is ‘very impressed'. He has been at the house of the applicant during stressful times and has never seen any problem and the applicant behaves in an impressive manner. He described the applicant by using the comment that ‘I could take lessons off (the applicant)’. [70] The applicant he says is outstanding with children, has paid off his house and has a job. Evidence of an associate through soccer [71] An associate of the applicant gave evidence that he has known him for two years. [72] He described the applicant as a person who is honest and open. The witness said that he was made aware of most of the criminal history of the applicant, who he says previously made poor choices but has turned his life around. [73] He has seen the applicant in stressful situations and described the adult’s ability to ‘compartmentalise’, as a great attribute. He spoke of the applicant’s integrity and calm and logical manner of thinking. He regards himself as part -- 13 of 18 -- 14 of the applicant’s support network. He said the applicant has a lot of friends and acquaintances. Upon considering the applicant’s full criminal history, he gave evidence to the effect that the paperwork does not reflect what the applicant is like as a person now. The witness said that, to his knowledge, the applicant’s consumption of alcohol is never an issue and that the applicant is a person who is confident and maintains self-control. [74] He provided the evidence to the tribunal of the applicant’s ability as a coach and spoke positively about his ability to maintain discipline and respect, but to lead the children positively through praise and encouragement. He uses praise and encouragement to bring the boys ‘into line’, when required. He knows the applicant through church and describes themselves as ‘strong Christians – together'. Evidence of other witnesses [75] The applicant support his application with evidence from a school principal, an instructor in taekwondo and a parent of children attending the same school as the applicant’s children. [76] Each one of these witnesses was impressive and all spoke favourably of the applicant. The school principal candidly spoke of the applicant as a person who was ‘rough around the edges’ when he first met him in 2009. He said that the applicant has demonstrated growth in parenting skills. He said that as a sole parent the applicant had to ‘lift his game’ and he attested to the fact that the applicant has done so. The principal has seen the applicant and children since 2009 and says that he has ‘no hesitation in supporting (the applicant) in his application for a blue card'. [77] The other witnesses speak about the applicant’s good character generally and the positive way in which he interacts with children and females. What protective factors exist in this case? [78] The applicant’s protective factors are that he has developed coping strategies and insight. He has received and taken advantage of professional support. The applicant has a strong network of family and friends. The volatility of his relationship with his former partner is not evident in his current relationship. [79] The mere passage of time is not of itself a factor. However, during the period from 2012 until the hearing of this matter, there has been sufficient time for the applicant to receive and act upon positive factors in his life. [80] The applicant has shown that he has good insight into the harm that his actions in the past had on children. Good insight into the harm that an applicant has caused is a protective factor. In TAA, Re19, the former Children Services Tribunal stated: A person aware of the consequences of his actions on others is less likely to re- offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent 19 TAA, Re [2006] QCST 11 at paragraph 97. -- 14 of 18 -- 15 on the adults around them having insight into their actions and the likely effect on children. The applicant’s criminal history [81] When determining whether the case is exceptional or not the tribunal must consider many matters in relation to the commission or alleged commission of an offence:20 a) whether it is a conviction or a charge; and b) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and c) when the offence was committed, or is alleged to have been committed; and d) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and e) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under the Act21, the court's reasons for its decision; f) any information about the applicant from the office of the Director of Public Prosecutions or from Corrective Services;22 g) any report about the applicant's mental health;23 and h) ‘anything else’ relating to the commission, or alleged commission, of the offence that the tribunal reasonably considers to be relevant to the assessment of the applicant. [82] In assessing ‘anything else’, the tribunal might consider several factors such as: a) Was the offence of a serious nature? The Act may not define the offence under consideration as a serious offence; however, the offence may still be of a serious nature. b) What is the maximum and any minimum penalty prescribed for the offence? c) What was the level of criminality involved in the offending behaviour? d) Were children involved, and if so to what extent? e) Were children exposed to the offending behaviour? f) To what extent it is the applicant to blame for the offence? 20 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226. 21 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 357. 22 That is, information provided to the chief executive under ss 318 or 319 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 23 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 335, 337 and 338. -- 15 of 18 -- 16 g) What was the extent of damage or injury caused by the offending behaviour? h) Was the offence recent? i) Did the offender show remorse? j) Were there any aggravating circumstances? k) Were there any mitigating factors? What risk factors exist in this case? [83] In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.24 [84] In issuing a negative notice, the respondent considered that the applicant’s case was exceptional, such that it would harm the best interest of children for the applicant to have a positive notice. [85] The risk factors in this case are: a) that the applicant may revert to a violent life; b) that the applicant may succumb to triggers; c) the applicant may revert to use of illicit substances; d) that the applicant may revert to the abuse of alcohol; and e) that the applicant’s relationships may become volatile. Is this an exceptional case? [86] The tribunal is required to consider whether the applicant’s case is an exceptional one, such that it would not be in the best interests of children for the applicant to have a positive notice. [87] Is the applicant’s case out of the ordinary, unusual or special, such that the applicant should not have a positive notice? [88] The tribunal is to determine the question on the balance of probabilities. [89] The tribunal has concerns regarding the convictions for domestic violence offending which involved actual and serious violence in 2011. The actions of the applicant in repeatedly punching the complainant to the head while driving with his three children in the car was very serious. The adverse effect to children in viewing this behaviour is likely to be profound. At that time, the applicant was unable to control his behaviours, even around children, and exercised extremely poor judgement in exposing the children to violence without any regard for their emotional well-being and his position as a role model. [90] Children have a right to be safe and to not be exposed to the violence and inappropriate and serious criminal behaviour demonstrated by the applicant in 2011. The actions of the applicant at that time do raise serious concerns regarding his eligibility to work with children at any time for fear that this may expose the children to emotional harm. The events in 2011 occurred at the 24 Commission for Young People v V (2002) 56 NSWLR 476. -- 16 of 18 -- 17 time when the applicant was intoxicated. Drinking alcohol to excess is a clear trigger for the applicant. [91] The events in 2012 and the police related offending is also of great concern to the tribunal. It does raise issues about the applicant’s willingness to comply with authority. In isolation, at least up until 2012, the information obtained through the police records reflects adversely on the applicant’s ability to provide a safe and protective environment and present as a positive role model to children in his care. [92] However, the courts dealt with the applicant relatively leniently in 2011 and 2012. Significantly, the applicant has taken appropriate steps to deal with his ongoing problems. [93] The tribunal acknowledges that the letter of the psychologist, which was directed to another psychologist, is aged and refers to the applicant receiving counselling until December 2012. The applicant says he stopped counselling in December 2012 because he had successfully addressed his anger management and substance abuse issues. However, the tribunal does note that he committed further violent offending behaviour only two months before this time. [94] There is evidence of counselling through the applicant’s pastor more recently and there is evidence of the support that is provided to him through his partner, family, friends and members of his congregation. [95] The tribunal is of the view that the applicant has taken positive steps to address his serious personality shortfalls. The tribunal is also of the view that the applicant continues to address his shortfalls. [96] The tribunal is of the view that the applicant’s offending behaviour, particularly in relation to violence, has not persisted and the tribunal is of the view that the treatment he has obtained has been successful in mitigating what would be otherwise a significant risk factor to children. [97] The evidence of the applicant’s partner was strong. That evidence, and the evidence of the pastor, was significantly impressive to persuade the tribunal to a conclusion, as a finding of fact, that the applicant’s behaviour has changed for the better, to the point where the protective factors are such that this application should not be considered as exceptional. Conclusion [98] The tribunal is mindful of the fact that a blue card is ‘fully transferable’. The holder of a blue card can undertake a wide range of child related activities. The blue card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children. [99] The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child related activities. [100] The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children. -- 17 of 18 -- 18 [101] Taking account of the totality of the evidence, the tribunal considers the risk factors do not outweigh the protective factors in this case. This is not an exceptional case. It would be in the best interests of children for the tribunal to overturn the decision of the respondent. [102] I give no weight to any loss, whether financial, reputational or personal, to the applicant that might have occurred had I come to a contrary view. I base my reasons entirely on factors that relate to the best interest of children, on the balance of probabilities, bearing in mind the gravity of the consequences involved to children.25 [103] I come to my conclusion noting that neither party bears the onus in determining whether an ‘exceptional case’ exists.26 [104] Of the choice to direct respondent to issue a positive notice to the applicant or to make a declaration that this is not an exceptional case, I prefer the latter. I do so because there may be other factors, administrative or otherwise, that the respondent may need to address before a blue card is provided to the applicant, consequent upon the giving of a positive notice. [105] However, the tribunal’s decision binds the respondent, which cannot go behind the finding that this is not an exceptional case. Nonpublication order [106] The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.27 [107] The tribunal often make a non-publication order in circumstances where it would not be in the interests of justice to identify the names of affected children. [108] The offending behaviour concerned an incident that took place in the presence of the applicant’s children. The tribunal is satisfied that there is no public interest served by disclosing the applicant’s name in circumstances where disclosure would identify the applicant’s children. [109] The tribunal therefore prohibits the publication of the name of the applicant. 25 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 26 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCAT 828. 27 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2). -- 18 of 18 --