FS v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 240

CITATION: FS v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 240 PARTIES: FS (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML255-15 MATTER TYPE: Childrens matters HEARING DATE: 25 February 2016, 21 April 2016 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 20 July 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The reviewable decision is set aside and a new decision is substituted that there is not an exceptional case for FS under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the applicant’s name, the names of the applicant’s children and the names of the witnesses who gave evidence at the hearing with the exception of Ms Purnell-Webb and Mr Coquillon are prohibited from publication other than to the parties and the Tribunal. 3. These reasons may be published, other than to the parties only in a de-identified format. CATCHWORDS: CHILDRENS MATTERS – BLUE CARD –– where application for a positive notice – where conviction for offence that was not a serious offence - where negative notice issued – where -- 1 of 22 -- 2 Chief Executive determined there was an exceptional case – whether exceptional case in all the circumstances Penalties and Sentences Act 1992 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66, Summary Offences Act 2005 (Qld), s 9 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 318, s 319,s 335 s 337, s 338, s 353, s 360, s 361 Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209 Re FAA [2006] QCST 15 APPEARANCES: APPLICANT: Self represented RESPONDENT: Ms Paula Hughes REASONS FOR DECISION Background [1] On 2 February 2015, FS lodged an application with the Chief Executive for the issue of a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). FS is a registered psychologist. FS indicated in his application that he required the blue card to volunteer with Surf Life Saving Queensland. [2] On 15 August 2015, the chief executive decided to issue a negative notice to FS. The basis of that decision was that after considering all of the material and having regard to the relevant factors contained within the Act, the chief executive was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to FS. The reviewable decision [3] FS applied to the Tribunal for review of the chief executive’s decision. Pursuant to s 353 of the Act the reviewable decision about FS is the decision of the chief executive that there is an exceptional case for FS because the chief executive issued a negative notice to him. -- 2 of 22 -- 3 The Tribunal’s conduct of a review of a reviewable decision [4] In exercising the tribunal’s review jurisdiction, the Tribunal must apply the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Act as that is the legislation under which the reviewable decision was made. The Tribunal has all the functions of the decision maker for the reviewable decision being reviewed.1 The purpose of the review of a reviewable decision is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.2 [5] The functions or essentially the orders the Tribunal can make in determining a review are set out in s 24 of the QCAT Act. The evidence [6] In determining this application for review, I have considered the documents lodged by the chief executive pursuant to s 21(2) of the QCAT Act. I have also considered the documentary evidence tendered at the hearing by FS and, in addition, I have taken into account the oral evidence given at the hearing, by FS, SL, WJ, Mr Albert Coquillon and clinical psychologist, Ms Trish Purnell-Webb. [7] SL has known FS for almost seven years. They worked together for three and a half years. They are close friends. WJ has known FS for about five years as a professional work colleague. Mr Coquillon is a close friend of FS. However, they initially met through their respective employment but have remained in contact. [8] In addition to the statements of third parties who have provided statements and references in support of his application, FS relies on the following documents:  a personal history statement dated 9 November 2015 (‘the personal statement’);3  his résumé and work history;4  a document entitled ‘Response to the CEO’s Document of 15/8/15’ dated 8 November 2015;5 (‘the response document’)  a letter, dated 29 March 2015, from the Australian Health Practitioner Regulation Agency (‘AHPRA’) to FS;6 1 QCAT Act, s 19. 2 Ibid, s 20. 3 Exhibit 2. 4 Exhibit 3. 5 Exhibit 4. 6 Exhibit 15. -- 3 of 22 -- 4  a Working with Children check issued in New South Wales on 25 November 2015.7 The convictions [9] FS has the following criminal history:8  25 November 1977 fined $75 and licence disqualified on a conviction of ‘prescribed concentration of alcohol’;  9 August 1979 fined $45 on a conviction for the offence of ‘speed’;  4 July 2014 no conviction recorded and fined $220 on the offence of ‘wilful exposure’ (on 8 June 2014). [10] I do not have the court briefs relating to the convictions in 1977 and 1979 but the Queensland Police Service (‘QPS’) court brief in relation to the wilful exposure charge is before me.9 [11] According to the QPS court brief, on 8 June 2014 FS, without reasonable excuse, wilfully exposed his genitals in a public place. On 4 July 2014, following a guilty plea, FS was convicted in the Southport Magistrates Court and fined $220.00. No conviction was recorded. Those facts are not contentious. I make findings of fact accordingly. [12] Wilful exposure is an offence under s 9 of the Summary Offences Act 2005 which provides: 9 Wilful exposure (1) A person in a public place must not wilfully expose his or her genitals, unless the person has a reasonable excuse. Maximum penalty— (a) 2 penalty units; or (b) if the offence involves circumstances of aggravation—40 penalty units or 1 year's imprisonment. (2) A person who is so near a public place that the person may be seen from the public place must not wilfully expose his or her genitals so that the person's genitals may be seen from the public place, unless the person has a reasonable excuse. Maximum penalty— (a) 2 penalty units; or (b) if the offence involves circumstances of aggravation—40 penalty units or 1 year's imprisonment. (3) It is a circumstance of aggravation for this section for a person to wilfully expose his or her genitals so as to offend or embarrass another person. 7 Exhibit 14. 8 Exhibit 1 PSBA-005. 9 Exhibit 1, PSBA-006 to PSBA-008 inclusive. -- 4 of 22 -- 5 [13] The court brief contains the following details of the offence: The offence location is on Old Burleigh Road, Broadbeach. Old Burleigh road [sic] is located in the Broadbeach CBD and is the boarder [sic] of the drink safe precinct. There is a large volume of pedestrian traffic in the area as it is situated near numerous bars and night clubs. At about 01:45am on the 08th day of June 2014 Police from Broadbeach were conducting patrols in the Broadbeach drink safe precinct. Police were approached by a female who identified herself as the victim in this matter. The victim stated at about 01:15am she was hailed by a male in a White Toyota Hilux Ute that was parked on Old Burleigh Road; just north of Victoria Avenue. The witness enquired about directions with the male. During the course of their conversation the witness realised the male had his penis exposed; and fully erect. The victim photographed the male with her phone before fleeing from the vehicle towards Surf Parade, Broadbeach. A short time later the victim was approached by another male who noticed her to be upset. The victim shared the details of the incident with the male. While they conversed the described Ute drove past and stopped at nearby traffic lights. The male approached the Ute and recoded [sic] New South Wales registration… Police conducted checks on the Hilux Ute which revealed the vehicle belonged to the defendant now before the court. On 15/06/2014 the defendant attended the Broadbeach station to voluntarily participate in an electronic record of Interview. During the interview the defendant stated that he had engaged in phone sex with a woman and had been masturbating in his motor vehicle; when the victim approached him to ask for directions. Subsequently the defendant was issued with a Notice to Appear to answer the present charge. Discussion of the evidence [14] FS’s personal statement document was, in my view, an unsanitised personal history. He has been forthright about his opinions in his written material and his oral evidence was also delivered in a frank manner. I do not consider that FS has set out to be anything other than frank and honest in his evidence. [15] I have no reason to doubt the evidence given by the witnesses called by FS. They were earnest in their support of FS. [16] Ms Purnell-Webb is a qualified clinical psychologist. She outlined her expertise to the Tribunal. I accept Ms Purnell-Webb has the appropriate qualifications and expertise to administer the tests, make the assessments and express the opinions she did in her report and oral evidence. [17] FS’s work history reflects that he has been a practicing psychologist since March 2009 when he successfully completed the requirements for registration to the New South Wales Psychologist Registration Board. He has held a number of positions with community mental health services, and since August 2015 has been practicing in private practice. In the course of -- 5 of 22 -- 6 that work he has provided services to mental health clients aged between 12 and 25 years of age.10 He is the father of three teenage daughters. [18] The statements and references provided by former work colleagues attest to his professional competency. [19] The letter from the AHPRA acknowledges that the relevant Board, cognisant of the details of the charge and the contents of the QPS court brief, and taking into account a report from his treating psychologist, Ms Purnell-Webb decided to take no further action in relation to FS’s criminal history and to renew his general registration as a psychologist. The letter also notes the recommendation of his treating psychologist that he continue to engage in regular clinical supervision. [20] There is no dispute and I find that FS has the criminal history set out earlier in these reasons. I accept FS’s evidence that he has had no further convictions since the conviction for wilful exposure on 4 July 2014. [21] FS concedes that at the time he interacted with the complainant, he had been engaging in phone sex with a woman who was not his partner. He takes issue with other of the facts set out in the QPS court brief. He disputes that there was a large volume of pedestrian traffic in the area where his vehicle was parked. He says that his vehicle was parked in a dark area of the Broadbeach car parking area, some 400m to 500m from bars and nightclubs. He also denies hailing the complainant over to his vehicle. He said that his vehicle has dark tinted windows and that he had his car doors locked and his windows up to ensure complete privacy. [22] FS said he first became aware of the complainant when she knocked on the passenger side window of his vehicle. In cross-examination he was asked how the complainant would have known he was in the car given that this vehicle has tinted windows and he said that the windows were up. He indicated that perhaps she had seen the light come on his phone. [23] He maintains that he initially tried to wave the complainant away but she engaged him in conversation indicating that she was from interstate and needed directions to catch up with two male persons. He says he refused her requests to drive her to meet her friends but attempted to assist her with directions. As he was doing so he inadvertently left himself exposed as his jumper which he had pulled down over himself rode up, at which point the complainant managed to take a photograph of his exposed penis. FS denies that the exposure was wilful. [24] He discussed his case with the public defender but, due to the photographic evidence, he was persuaded that it would be difficult for him to prove that the exposure was not wilful. This formed part of his decision to plead guilty to the offence, rather than to dispute the complainant’s version. 10 Exhibit 3. -- 6 of 22 -- 7 [25] FS says that the complainant did not ‘flee’ the scene. Rather, he says she walked around the front of his vehicle and waved goodbye. He also maintains that he could not have driven past a short time later as alleged in the court brief because he did not leave the car park for at least another 75 minutes because he had taken codeine and alcohol and was not prepared to drive anywhere. [26] In Re FAA the Queensland Childrens’ Services Tribunal relied on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Gungor11 and said:12 The Tribunal is mindful that in taking a conviction into account it must accept that decision on conviction as conclusive and not go behind it, seek to retry the charge leading to that conviction, or proceed on a basis inconsistent with that conviction. This conclusiveness also extends to the sentence imposed. The Tribunal should not proceed on a basis of questioning the sentence or on a basis inconsistent with that sentence. [27] I consider based on that reasoning that I must accept the decision of the court on FS’s conviction for wilful exposure as conclusive. I must also accept as conclusive the sentence imposed. One of the elements of the offence is that the exposure was wilful. While that is at odds with FS’s version of events, I must accept that FS was guilty of the offence charged and the sentence imposed. [28] FS gave evidence that the penalty imposed by the Court is reflective of the Court’s non-acceptance of the complainant’s version of events. [29] I do not have the sentencing remarks of the Court so I cannot know exactly what the court’s reasons were for imposing the penalty it did. FS said he abandoned his efforts to obtain the sentencing remarks because anything he received would have been so severely edited so as to be rendered useless in assisting his case. [30] Section 9 of the Summary Offences Act 2005 (Qld) (‘Summary Offences Act’) provides that the maximum penalty for the offence (where there are no circumstances of aggravation) is two penalty units. As at 1 July 2014, a penalty unit was $110.13 FS received the maximum penalty for the offence where there are no circumstances of aggravation. If the court was of the view that there had been a circumstance of aggravation under s 9(3) of the Summary Offences Act, it was open to the court to impose a penalty of up to $4,400 or impose a year’s imprisonment. I cannot know for sure without the sentencing remarks whether any circumstance of aggravation was taken into account by the court. However, the penalty imposed by the court does not reflect that any circumstances of aggravation were such as to bring the penalty within the serious range for such an offence. This lends some support to FS’s evidence that the court accepted that the complainant was 11 Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209. 12 Re FAA [2006] QCST 15 at [39]. 13 Penalties and Sentences Act 1992 (Qld). -- 7 of 22 -- 8 not significantly distressed by the events of 8 June 2014, contrary to aspects of the court brief. [31] FS’s version of events as presented in the documentary and oral evidence to the tribunal is consistent with what the QPS have recorded in the court brief as the information he provided during his interview with the QPS. The fact that FS disputed some of the details in the court brief does not cause me to doubt FS’s credibility. [32] FS relies on a number of ‘triggers’ for the offending behaviour which he maintains was out of character. Before June 2014 he had, for a number of months, been assisting his sister to leave the public service. FS’s sister has a number of disabilities. He said that she was being bullied and harassed in the workplace and he was making representations on her behalf. He said his sister was depressed at that time. At the same time, he too was experiencing workplace bullying by a senior officer which had been going on for some time. [33] His sister had also been the victim of domestic violence and he was assisting her to leave the relationship. [34] In addition, he had at that time, 37 mental health clients in excess of the usual caseload of 22 and a number of those clients were unwell. One client committed suicide a few weeks prior to the incident and his daughter was going through her fourth leg operation. His former partner and mother of his older child had been hospitalised for a third blood transfusion. His daughter was very worried that her mother would not survive the surgery. There were also issues in his marital relationship. He said that he was suffering a fair bit of stress. Those triggers or stressors caused him to engage in escapist behaviours. He found respite in drinking and talking to other women. He had frequented strip clubs on three or four occasions, the last occasion being the night of the incident. [35] SL was aware of a number of the personal circumstances FS refers to as the ‘triggers’ for the events that led to the offending behaviour. SL assisted FS to move FS’s sister out of the home she was sharing with her former partner. He gave evidence that FS assisted his sister to get back on track and re-engage in the workforce. He was aware that FS had been experiencing workplace bullying and that FS’s daughter required a leg operation. SL also said that FS’s had his own health concerns at the time. He said that FS had a staph infection on his arm and required IV anti-biotics. While SL said he knew that FS was not getting along with his wife at the time, he said he had not realised the extent of the marital disharmony. [36] It is clear from the evidence of SL, WJ and Mr Coquillon that FS did not, at the relevant time, tell his friends the full extent of what he now says were the triggers for the behaviour leading to the offence. However, SL’s evidence regarding his knowledge of some of the personal circumstances impacting FS at the time, provides some support for FS’s evidence. Ms Purnell-Webb also accepts that those triggers were occurring at the relevant time and were precipitating factors leading to the offence. While I -- 8 of 22 -- 9 accept that a practitioner must rely on the information provided to them by their patient to some extent, Ms Purnell-Webb had the opportunity to test and assess FS. It is clear from her report and her oral evidence that she did not have cause to question the reliability of the information FS provided to her. I will return to Ms Purnell-Webb’s evidence again later. [37] I accept FS’s evidence regarding his personal circumstances at the time of the offending behaviour. I also accept his evidence that the personal circumstances that he referred to as ‘triggers’ occurred around the time of the offending behaviour. [38] FS’s evidence is that those personal circumstances are no longer present in his life and it is unlikely that they will recur again or all at the same time. His sister who lived with him for 14 months and received treatment for depression, is now living independently in a safe environment and working again. His move into private practice means he can control his workload. His daughter and his former partner recovered well from their health issues. [39] FS said he is handling his stress differently now. He is exercising more. He has engaged in peer support with a psychologist to ensure that he recognises stressors. He said his marital relationship is going well. He is engaging more with his family. He meditates on a daily basis. He has informal support through a network of friends who are psychologists and more formal support with Ms Trish Purnell-Webb, his treating clinical psychologist. He said he intends to continue to engage with Ms Purnell- Webb. [40] He is no longer drinking to excess. He said he would have two or three drinks a night at most and has three alcohol free days each week. In his peer support program he has discussed his alcohol issues and has recognised that it was a poor coping mechanism. While he is self-monitoring his alcohol consumption, he said that, to some extent it is governed by his family. He was able to articulate what he would do if his alcohol consumption again became an issue. He said he would cut back or stop and seek help from a friend. [41] FS said that prior to the offence, he believed he could handle all of his problems himself and had not been engaging in peer support. The cost of a private psychologist was also prohibitive. He said he felt isolated in his workplace at the time so there was not a lot of opportunity to get together with peers. [42] FS said that after the incident he reflected on his destructive and inappropriate behaviour. He realised that he needed structures to avoid recurrence. [43] FS is currently taking Escitil 20mg per day which was prescribed by his General Practitioner. He has been taking it for approximately one year and the dosage has not altered since it was first prescribed. He was referred to Ms Purnell-Webb as part of a mental health care plan prepared by his GP. -- 9 of 22 -- 10 It includes six sessions with Ms Purnell-Webb with a review to follow the six sessions. [44] Prior to consulting Ms Purnell-Webb he had three sessions with another psychologist in September, October and December 2015. He discussed his responsibility with clients including negative thinking about clients, dealing with difficult clients and handling difficult clients, but had not discussed his personal stressors. He said he was self-monitoring his drinking and his engagement with his peers at that time. [45] By the end of February 2016, he had had three sessions with Ms Purnell- Webb. He has discussed with Ms Purnell-Webb, the events that led up to the commission of the offence and how to address a relapse in behaviour. They had also discussed self-care issues. [46] He has not had any relationship counselling. [47] The witnesses who gave evidence in support of FS’s application were all of the opinion that FS’s actions on 8 June 2014 were out of character based on their relationships with FS and their observations of him. SL and WJ had both read the chief executive’s statement of reasons but from their evidence I considered they accepted FS’s version of events that the exposure was inadvertent. I do not consider that that alone undermines their evidence regarding FS’s character which is based on their interactions with FS and their observations of him. All of the witnesses spoke very highly of FS in terms of his professional skills and in his role as a father and partner. [48] SL regarded the impact of the conviction on FS personally and on his family, a reason he would be unlikely to reoffend. SL gave evidence that FS’s marital issues have been resolved and FS was satisfied in his current work, and is happier and enjoying life. [49] WJ spoke of FS now having better supervision and that he is not so ‘burnt out’ as he has left his previous employment. She said that his work/life balance is better. [50] I accept FS’s evidence that the personal circumstances impacting him at the time of the offending behaviour are not currently present. He has made the changes to his work arrangements and his daughter and former partner have recovered well from their health issues. I also accept that he is exercising more and engaging in peer support and has had the appointments with psychologists including Ms Purnell-Webb as he described. I accept that from FS’s point of view his marital issues have improved. I did not hear from his partner so I cannot know whether she shares his opinion. [51] Of particular concern to me in relation to FS’s evidence were a number of statements he made in the response document.14 FS did not seek to prevent the document being admitted into evidence. No doubt through the series of 14 Exhibit 4. -- 10 of 22 -- 11 questions posed by the Chief Executive’s representative and by me, he became aware of the potential impact those statements might have on his prospects in this review. Some of the statements downplay his poor decision making on the evening in question. He referred to his choice to have phone sex as opposed to intercourse as reflective of “good judgement”. I cannot see how FS’s decision to engage in phone sex in his vehicle in a public carpark no matter how secluded he considered it to be could ever be considered good judgement. [52] He has also downplayed the impact of the events of that night on the complainant and questioned her motives. In the response document, in particular, FS states:15 The summary of facts do not take into consideration any responsibility on the part of the complainant – nor question why she was there:  Why was she knocking on car windows at 1:15am in Surfers Paradise. My 16 years old daughter would not be out doing this.  Was she instructed by others to seek out some specific thing, although she did not ask for drugs was she seeking same. Was she looking for drugs.  Was she really a Tasmanian tourist or was that just an icebreaker to suck me in and trick me.  Was this a set up by the police to deliver an outcome? [53] Later in that document he has stated:16 Consider if this was a set up this person got in my car and then cried rape – awesome. The CEO again does not consider anything but this perception of total innocence. Even though this person was literally lurking, yes lurking around in the dark car park areas near the night clubs of Surfers Paradise and is this person sexually active and is that what they were seeking? [54] Later he makes certain submissions:17 …  This is where I am most amazed in an era where Mylie Cyrus [sic] swings naked from a large ball and young watch strip movies like Magic Mike and the whole world is sexualised by the smartphone and electronic media, the CEO thinks that this young woman taking a picture of a man’s penis in a state of ‘voyerism’ [sic] affects her. Not likely. There was and is no impact on this person as demonstrated by her behaviour wanting to get in the car. The only impact is she may have been chastised by her parents, if they cared, that she was out lurking around a carpark at 1:30 in the morning. I am sure she will not have counselling around this issue. [55] He also stated:18 15 Exhibit 4, pp 3 and 4. 16 Exhibit 4, p 5. 17 Ibid, pp 7 and 9. 18 Ibid, p 7. -- 11 of 22 -- 12  A one incident issue does not reflect adversely on my abilities as demonstrated by my work and family committments [sic]. The CEO’s “no tolerance” approach to this assessment is clearly reflective of the current “hysteria regard sexual offence of any nature [sic]. I am not a catholic priest working in a 1950’s boys home. [56] Those passages were put to FS in cross-examination and I asked FS about those passages. FS gave evidence that what he was referring to, particularly in relation to his reference to Miley Cyrus, is that there is sexualised media which could impact the degree of impact on the complainant. He said that teenagers have more access to more material than in the past. He said that phone sex was not uncommon between teenagers. He said it is almost acceptable by teenagers for these behaviours to be engaged in. [57] He was questioned about whether or not his views were such that he believed that the incident’s impact on the complainant was in some way lessened. I understood FS’s evidence to be that the degree of impact on a particular person was dependent to some extent on that person’s exposure to sexualised material via social media or otherwise. He said he did not know the complainant, did not know her character or her level of experience but acknowledged that the incident would have had an impact. He said he was not trying to shift blame but he did not know her motives. He said there could have been a different reason for her knocking on the window. [58] In his oral evidence, FS explained his reference to a Catholic priest. He said he was referring to the publicity received by the Royal Commission into sexual offences committed by the catholic church. I understood his evidence to be that with the extensive coverage of the Royal Commission, public officers such as the chief executive may have become over-sensitive to any matters where a child is involved. He said that if someone makes a genuine mistake, a small issue can be blown out of proportion into a huge issue. [59] FS said that he had been quite angry about a lot of things: his work in the public service, he was angry at being bullied, his client’s suicide and he was angry at his sister. It was all hard work. He said that in relation to the response document he had taken it personally when the chief executive said he had no insight into the damage that he had caused. He felt that the chief executive was saying that he had no social, moral or ethical foundation and was a poor role model. He felt that was unfair as the conclusion was based on one incident. FS said that the chief executive does not know him. He said that that was where the anger had come from. He said he was also angry at himself for not getting support at the time. He said he neglected himself and it was costly. FS apologised for his conduct, and he said he was sorry for what the young woman had experienced. He said he would apologise to her if he had the opportunity to do so, but he does not know her. [60] Some of those statements I considered could be attempts to paint himself as an innocent party or the victim in the particular scenario. Those statements troubled me. I do however accept his evidence that he was -- 12 of 22 -- 13 angry at the time of writing the statements and that he is remorseful for any distress that was caused to the complainant. I accept his evidence that the experience of the complainant was not one he would want his own teenage daughters to have. [61] The chief executive submits that Ms Purnell-Webb’s evidence should not be given substantial weight as she, as with the other witnesses called by FS, has based her opinion on FS’s version of the events regarding the offence rather than the facts as set out in the court brief. While Ms Purnell- Webb’s evidence was that she had taken into account FS’s version of the events, according to her report she was given a copy of the chief executive’s reasons for the reviewable decision which contains a summary of the facts taken from the police brief including that FS hailed the complainant as well as the that the offence was “wilful exposure”. I consider that she has had regard to that information. She said she had also read the response document and been given the Tribunal’s directions made 29 September 2015 which recommended that FS obtain a psychologist’s report and contain the following information: a) The extent to which the applicant has insight into his behaviour which resulted in his criminal history and the impact that his behaviour has on other people including children; b) What risk factors or triggers, if any, continue to be present which could contribute to a risk of similar behaviour being repeated. c) What protective factors if any are present to reduce the risk of a repetition of such behaviour d) What preventative strategies, if any, does the applicant use to reduce the risk of repetition of such behaviour. [62] I do not consider that any reliance Ms Purnell-Webb has had on FS’s version of events undermines her opinions given the assessments she has conducted and the documents she received and likely considered. At one point in her evidence while expressing her opinion regarding the risk of FS reoffending, she said he did not seek out young people to misuse them in any way and that he did not wilfully and knowingly expose himself to the young woman. That evidence does not cause me to regard as wholly unreliable her evidence. Nor do I consider that that evidence significantly undermines her opinions. She has taken into account various factors and information in forming her professional opinion including her administering of assessments. She was not asked by the respondent whether her opinion would be any different if she were compelled to accept that the exposure was wilful. [63] The chief executive submits that Ms Purnell-Webb’s opinions and evidence should not be given significant weight because given FS’s professional qualifications his ability to manipulate the results cannot be ruled out. Ms Purnell-Webb said that the psychometric assessment she had conducted was not one that she considered FS was overly familiar with and she used that particular assessment because she believed it would be very difficult -- 13 of 22 -- 14 for him to manipulate. I accept Ms Purnell-Webb’s evidence in that regard. I accept that the results of her assessment are reliable. [64] While I accept that Ms Purnell-Webb has treated FS, I consider that her evidence was given in an objective manner and was based on assessments she conducted and not just FS’s account. She has not treated him for a lengthy period. I do not consider that the fact that Ms Purnell-Webb has treated FS means that I should not give her report and evidence significant weight. [65] Ms Purnell-Webb conducted a psychometric assessment. Mental Status Examinations were conducted on three occasions: 19 October 2015; 23 November 2015; and 21 December 2015. In her report Ms Purnell-Webb states: FS demonstrated some evidence of dysphoria and anxiety when describing his situation and his fears for on-going consequences, however his affective expression appeared normal given his circumstances. There was no evidence of perceptual distortions such as hallucinations, dissociation or agnosia. FS’s thought process appeared normal in content and form. He appeared orientated to time, place and person and was able to stay focussed with little or no distraction or inattention. In summary, FS consistently presented as an intelligent, open and insightful man who demonstrated appropriate emotional expression and described appropriate feelings of shame, guilt and fear for his future given his current situation. [66] A Personality Assessment Inventory was undertaken. The report indicates that FS’s results on the validity scales indicate that he answered items consistently without exaggeration or minimisation. His results on the supplemental indices indicated that he responded candidly with no evidence of malingering or defensiveness and that given the results it was ‘reasonable to accept that his responses on all other scales are valid and reliable’.19 [67] Ms Purnell-Webb gave oral evidence consistent with her report that FS’s results on the clinical scales indicated no significant pathology. In her report she states:20 His scores fell well within the normal range for somatic concerns, anxiety, anxiety related concerns, depression, mania, paranoia, schizophrenia, borderline or antisocial features, alcohol or drug usage. [68] Further she states:21 On the Treatment Consideration Scales FS’s scores indicate no evidence of aggressive behaviours towards others or risk of self harm or suicidal ideation. FS’s scores on Non-support, Stress and Treatment Rejection scales indicate that he feels generally well supported in life, that he has a normal amount of controllable and uncontrollable stressors in his life and that he possesses 19 Exhibit 11, p 4. 20 Ibid. 21 Ibid. -- 14 of 22 -- 15 more than the average attributes that are known to be related to psychological treatment adherence, including motivation, willingness to accept responsibility, and openness to change and new ideas. [69] Further the report states:22 FS’s scores on the Interpersonal Scales indicate that he considers himself to be kind, empathic, assertive, dominant and engaging in social situations. In summary, FS’s results indicate a man who has responded candidly, consistently and insightfully with little or no distortion. He demonstrates little or no pathology or negative behaviours or mindsets that would be barriers to personal development or adaptive behaviour change. [70] Ms Purnell-Webb goes on:23 FS presents as an intelligent, insightful man who at the time of his offence was using alcohol and sexual gratification as maladaptive coping strategies to manage a range of situational stressors that included conflict in the workplace, financial strain due to distressing medical requirements of his youngest daughter, and the rapidly deteriorating health of his ex-wife. These stressors had contributed to a period of marital strain and distress which had left FS overwhelmed, isolated and lonely. FS expresses appropriate feelings of shame and remorse for his offence which, based on his history, is out of character for him. FS is very aware of the distress his behaviour has cause his partner and daughters and is mortified that his behaviour may have caused distress to the young woman involved in the incident. FS reports that he has changed his employment, he and his partner have addressed their marital issues and has taken steps to better manage his alcohol consumption, abiding by the National Drinking Standard recommendations for safe drinking. FS reports that the personal and professional consequences he has had to face, and continues to face, as a result of his behaviour have significantly increased his awareness of the need to act responsibly at all times and to engage in more adaptive stress management techniques such as regular exercise, reduced drinking, engaging in regular on-going clinical supervision, seeking support from his partner and colleagues and ensuring a good work/family balance. [71] Mr Purnell-Webb expressed the following opinion and made the following recommendations:24 It is my opinion, based on clinical interview, personal history, and psychometric assessment that FS’s behaviour on 8 June 2014 was not characteristic of his normal functioning and that his risk of re-offending or of continuing to engage in these behaviours is low to very low. My treatment recommendations are for FS to continue to engage in regular clinical supervision to assist him to maintain awareness with regard to his 22 Ibid. 23 Ibid, p 5. 24 Exhibit 11, p 5. -- 15 of 22 -- 16 management of stress and to support relapse prevention with regard to his alcohol use. [72] At the hearing, Ms Purnell-Webb said that what she had meant by ‘regular clinical supervision’ was peer consultation with other practitioners. She said that she had helped him with his anxiety and stress, and with the blue card process. She had made checks on how he was going with his current use of alcohol and stress management and had discussed with him some of his client cases to monitor his decision-making. [73] Ms Purnell-Webb said the strategies FS has now employed include engaging more in peer consultation. She said that previously FS had let things build up and was not doing this. She considered that he was now balancing his work and relaxation time better and was now reconnecting with his wife and children. She said that at the time of the offending he was disengaged from his partner. She said her impression was that he knew about the strategies at the time, but in the lead up to the offending behaviour had let too much get away from him due to the number of stressors occurring at the same time. They had talked through them and she had reminded him of the need to employ those strategies on a regular basis. FS had openly discussed with Ms Purnell-Webb his marital relationship and the process for transition to private practice. [74] She said that it was not unusual for members of the profession not to be perfect and it was reasonable as a normal human being that at times we all have poor decision-making. She considered that his behaviour in June 2014 looked like an aberration linked to the stressors at the time. [75] Ms Purnell-Webb said that the incident was such a shameful one for FS because it was not how he sees himself, so that now he is very conscious of managing himself. FS had expressed shame and remorse, he had been tearful in front of her. He had articulated humiliation and embarrassment, and found it difficult to tell her about the events. He had reiterated those feelings in subsequent consultations. He had said things such as that as a father of a daughter it must have been awful for the complainant. [76] Parts of FS’s response document were put to Ms Purnell-Webb. She said she had seen the document and had raised those statements with FS. She said that his response had been that it was written at a time when he felt angry, and he had thoughtlessly written them. She considered it out of character at the time. She said she would have seen the document at the appointment on 21 December 2015. [77] I put to her the evidence that FS had given at the hearing when questioned about the statements he had made in the response document. Ms Purnell- Webb said that in her professional opinion he had expressed some moral indignation and acknowledged that it was not appropriate wording, but she did not consider that was how he sees sexual offences generally. She said he thought he had been very unfairly treated, but considered from his knowledge of him that he was talking philosophically and was morally indignant about the availability these days of sexual content and did not -- 16 of 22 -- 17 express it very well. She did not believe that he believed he had no impact on the complainant. He was simply expressing that the young person may have engaged with more sexual material, and what had occurred was low on the scale of what she might otherwise see on a day to day basis through media and other things. [78] She did not consider that he had downplayed his responsibility in the behaviour. She said that FS has insight into the factors that were occurring at the time, insight into the fact that he had used maladaptive coping strategies and has insight into the further adaptive coping strategies and knows what those adaptive coping strategies are. Ms Purnell-Webb said she stood by her report. She considered that her assessment had been thorough and that FS does not pose a risk to young people. He made poor decisions on that particular night but she sees him as a functioning professional who can work within the boundaries of the profession and that he can maintain boundaries around his behaviour. He is aware of the safe guidelines for drinking. She did not consider that he would intentionally do harm to a young person. She said that he had learned that there was a need to self-manage carefully. [79] Ms Purnell-Webb said that it was her clinical opinion that there was no history of ongoing issues in relation to child related employment. She considered the incident a one off, due to a ‘perfect storm’ of factors and stressors in his life at that time. [80] She considered him a binge drinker and said he had been drinking heavily to cope with stress. She said that in respect of the risk of re-offending, it was always possible that a person could end up in the wrong place at the wrong time but he had increased awareness about alcohol use and the impact of stress and that would act as a protective factor. Ms Purnell-Webb did not consider that he would get himself into circumstances where he would put a young person at risk. [81] Ongoing intervention, Ms Purnell-Webb said, should take the form of regular clinical supervision and regular monitoring of his alcohol. It would be useful for him to engage with other professionals in private practice. She considered that FS had fairly solid clinical skills and would continue to see FS if he wished to. She said that as a practitioner, he must engage in 10 hours per year of peer consultation and as long as he met those requirements then she considered that that would be an appropriate way of maintaining his awareness of use of alcohol and management of stress. She said that in line with the mental health care plan she would conduct a review after six consultations, but they had not yet had those having only had five sessions so far. [82] In relation to the medication prescribed by the general practitioner, Ms Purnell-Webb said that at times general practitioner’s prescribe medication for a diagnosis made without applying the diagnostic criteria. It was her professional opinion that FS did not meet the diagnostic criteria for any mood or other disorder. -- 17 of 22 -- 18 [83] Based on my findings regarding Ms Purnell-Webb’s expertise, that her evidence was impartial and that the results of her assessment and testing is reliable I have given Ms Purnell-Webb’s evidence substantial weight. Application of the law and reasons [84] The object of the Act is to promote and protect the rights, interests and wellbeing of children in Queensland. The paramount consideration in an employment screening decision made under the Act is the welfare and best interests of the child. The Act is also to be administered under the principle that every child is entitled to be cared for in way that protects the child from harm and promotes the child’s wellbeing.25 [85] FS has been convicted for an offence other than a ‘serious offence’ as defined in the Act.26 Therefore, under s 221 of the Act, the chief executive must issue a positive notice to the person if the chief executive is aware of a conviction of the person for an offence other than a serious offence unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. I must determine whether or not there is an exceptional case for FS. [86] The term ‘exceptional case’ is not defined in the Act. Section 226 of the Act sets out the matters that the chief executive must have regard to in deciding whether or not there is an exceptional case for the person. Section 226(2) provides: (2) The chief executive must have regard to the following— (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) 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 section 357, the court’s reasons for its decision; (b) any information about the person given to the chief executive under section 318 or 319; 25 The Act, s 6. 26 The Act, s 3, Schedule 7, s 167, Schedule 2. -- 18 of 22 -- 19 (c) any report about the person’s mental health given to the chief executive under section 335; (d) any information about the person given to the chief executive under section 337 or 338; (e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. [87] However, I am not confined to considering those matters and may consider other matters at my discretion. In reliance on a line of authority in these cases I consider that what constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.27 [88] The central focus of the Act is the protection of children. Section 360 of the Act makes it clear that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. I agree with the reasoning of the Queensland Childrens Services Tribunal in Re FAA that in applying the Act, it is not intended that such application impose additional punishment on a person who has a criminal history. Rather it is intended to put gates around employment to protect children from harm.28 [89] I have made assessments of the evidence and findings of fact under the heading “Discussion of the evidence” to which I must apply the law. [90] In deciding whether or not there is an exceptional case for FS in which it would not be in the best interests for the chief executive to issue a positive notice, I must have regard to the matters set out in s 226(2)(b), (c) and (d). The chief executive did not seek a report on FS’s mental health under s 335 of the Act. There is no information before me which was given to the chief executive under s 318, s 319, s 337 or s 338 of the Act. [91] I must have regard to the fact that FS has convictions and that the offences were not serious offences.29 [92] I have also had regard to when the offences were committed.30 In relation to the convictions in 1977 and 1979, I have taken into account the length of time since those convictions and FS’s relative youth at the time of those offences and I am satisfied for those reasons that those convictions are not now of concern. The 1977 conviction was alcohol related. FS’s more recent relationship with alcohol will be further considered in these reasons. [93] Of principal concern is the offence of wilful exposure committed on 8 June 2014.31 I have had regard to the fact that at the time of the wilful exposure offence, FS was 55 years of age and as such, in the usual course, should 27 Re FAA [2006] QCST 15 at [22]. 28 Re FAA [2006] QCST 15 at [29], citing the second reading speech Commissioner for Children and Young People Bill page 4391. 29 The Act, s 226(2)(a)(i) and (ii). 30 The Act, s 226(2)(a)(iii). 31 The Act, s 226(2)(a)(iii). -- 19 of 22 -- 20 have possessed a level of maturity to be in a position to make reasoned decisions on the evening in question. I have also had regard to the fact that the complainant was at the time, 16 years of age. FS’s application to the PSBA was made on 2 February 2015 some eight months later. It is now about two years since the date of the offence. He has had no other convictions in that period of time. [94] I have accepted the decision of the court on FS’s conviction for wilful exposure as conclusive. I have also accepted as conclusive the sentence imposed. [95] 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, the court’s reasons for its decision is a matter to which I must have regard in deciding whether or not there is an exceptional case for the person.32 FS was fined $220.00. No conviction was recorded. He was not sentenced to a term of imprisonment. According to s 9 of the Summary Offences Act a term of imprisonment of one year can be imposed where circumstances of aggravation are found. I do not have the court’s reasons for its decision but I take into account my finding that the penalty was not within the range expected if the court regarded the offending behaviour as serious and there were significant circumstances of aggravation in terms of s 9 of the Summary Offences Act. [96] I must also have regard to the nature of the offence and its relevance to employment or carrying on a business that involves or may involve children.33 As the complainant to the police was a child this raises a number of concerns in relation to FS’s engagement with children. It raises concerns about what he considers to be appropriate conduct in relation to children. It raises concerns about his ability to make appropriate decisions around children. It also raises concerns about his ability to respect appropriate social boundaries where children are concerned. [97] I have considered the risk of FS repeating such behaviour. [98] As I have already stated I have given Ms Purnell-Webb’s opinion significant weight. Ms Purnell-Webb’s evidence was tested by the Chief Executive through cross-examination and I also put to her my concerns regarding FS’s evidence. Ms Purnell-Webb held steadfastly to the opinions she had expressed in her report and which I have previously outlined. [99] She differentiated between the moral indignation expressed by FS’s in the response document and the sincerity of his remorse for the events of 8 June 2014. She did not consider that anything he had said in the response document was indicative of how he regarded sexual offences generally. She does not consider that FS believed that the events of 8 June 2014 had no impact on the complainant. She did not consider that he had downplayed his responsibility in the behaviour. In her opinion, FS has insight into the 32 The Act, s 226(2)(a)(v). 33 The Act, s 226(2)(a)(iv). -- 20 of 22 -- 21 precipitating factors occurring at the time, insight into the fact that he had used maladaptive coping strategies and has insight into and knowledge of the adaptive coping strategies. Based on her assessment it is her opinion that FS made poor decisions on that particular night but he is a functioning professional who can work within the boundaries of the profession he can maintain boundaries around his behaviour. She did not consider that he would intentionally do harm to a young person. She said that he had learned that there was a need to self-manage carefully. [100] While she described FS as a binge drinker, in her opinion, he is satisfactorily managing his alcohol intake with the help of his support network including family members. She did not see the need for him to engage in any other treatment for his alcohol consumption. She considered that his engagement in peer support and the other strategies he had employed such as getting regular exercise, changing his work arrangements and spending more time with his family were sufficient at this time to prevent the recurrence of the offending behaviour. She did not consider that he required medication. [101] The strategies he has employed to reduce the impacts of stressors are protective factors. [102] I have found that the personal circumstances that were impacting him at the time of the offending behaviour relating to his former partner, daughter and sister have resolved and that he has made changes in his working arrangements. While his evidence regarding the resolution of his marital issues was not corroborated, Ms Purnell-Webb’s assessment did not raise any cause for concern in terms of FS’s capacity for making reasonable and rational decisions. I consider the current absence of the trigger factors and the unlikelihood of all of those trigger factors occurring at the same time again to be protective factors. [103] I also consider that FS is concerned about, and has an interest in, maintaining his professional reputation. His relationship with his daughters is very important to him and I consider that he is very keen to maintain his familial relationships. I consider that those drivers are also protective factors. Ms Purnell-Webb’s opinion supports my view. [104] Ms Purnell-Webb is of the opinion that FS has no mental illness or other disorder meeting any diagnostic criteria. [105] While FS had not yet had his first mental health review following his referral to Ms Purnell-Webb she was prepared to express her opinion. Ms Purnell- Webb was firmly of the opinion that the risk of FS reoffending was low to very low. I accept her assessment. [106] FS is an intelligent man and I consider that he has learned valuable lessons from what has occurred since the offending behaviour, such as his court appearance, the review process relating to the reviewable decision and the ramifications of not holding a blue card. I consider those experiences and his desire not to repeat them to be some protection from the risk of the behaviour recurring. -- 21 of 22 -- 22 [107] The Chief Executive argues that FS’s failure, at the relevant time, to recognise the negative impacts on his behaviour of the identified stressors or triggers given he is a qualified registered psychologist is a risk factor. Against that I have weighed Ms Purnell-Webb’s evidence that it was not unusual for members of the profession to be imperfect and that it is unlikely that the series of triggers present in 2014 would be likely to recur and that in the event that they did, FS was now better placed to deal with them in an appropriate way. [108] Taking all of those matters into account I have reached the conclusion that there is not an exceptional case for FS in which it would not be in the best interests of children for the chief executive to issue a positive notice. While I accept the Chief Executive’s submission that the letter from the APHRA and the Working with Children NSW decision are not binding on any decision I might make, I consider that they lend some support for the conclusion I have reached on the evidence before me. [109] Pursuant to s 221 of the Act, the Chief Executive must issue a positive notice to FS. Non-publication order [110] Prior to the hearing, FS made an application for the hearing to be conducted in private and for a non-publication order in order to protect his children. [111] Pursuant to s 361 of the Act these proceedings are held in private. [112] Section 66(1)(c) of the QCAT Act gives the tribunal a discretion to make an order prohibiting the publication of information that may enable a person who has appeared before the tribunal, or is affected by a proceeding to be identified. [113] Section 66(2) of the QCAT Act provides that the tribunal may make the order only if the tribunal considers the order necessary for one of the reasons set out in that subsection. Given the objects of the Act to promote and protect the rights, interest and wellbeing of children in Queensland and the nature of the offending behaviour, I consider that it is in the interests of justice for FS’s children to be protected from identification. The chief executive did not oppose a non-publication order being made in relation to FS’s name. However, FS argued that the names of two of the witnesses when coupled with their evidence would enable him and thus his children to be identified. I decided to extend the non-publication order to the applicant’s name as well as the names of the witnesses he identified to ensure the protection of his children’s identities. -- 22 of 22 --