EET v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 277

CITATION: EET v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 277 PARTIES: EET (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML146-14 MATTER TYPE: Childrens matters HEARING DATE: 27 November 2014 and 23 February 2015 HEARD AT: Brisbane DECISION OF: Member Quinlivan DELIVERED ON: 15 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Decision of the Chief Executive Officer, Public Safety Business Agency made on 11 July 2014 to issue a negative notice is set aside. 2. The Tribunal directs that a positive notice be issued forthwith to the Applicant. CATCHWORDS: Childrens matters - suitability for Blue card - no serious offences - past domestic violence - previous assault on child APPEARANCES and REPRESENTATION (if any): APPLICANT: EET – represented by Solicitor ATSILS RESPONDENT: Chief Executive Officer, Public Safety Business Agency -- 1 of 13 -- 2 REASONS FOR DECISION [1] EET (the applicant) is a proud 50-year-old Torres Strait Islander. His native language a Western language in the Torres Straits. He lives with his wife, EM and they have six biological and seven adopted children. He currently lives with his wife, one of their sons and his girlfriend and three grandchildren. [2] In recent years he has worked in land and sea management for the Torres Strait Regional Authority where he has been employed as a Ranger. [3] The applicant was originally granted a positive notice and Blue card in 2005. Following a change in his criminal history in 2009, he was re- assessed and issued with a negative notice on 4 February 2010. On 17 January 2014 he applied to the Commissioner for Children and Young People and Child Guardian (now the Chief Executive Officer, Public Safety Business Agency) to cancel the negative notice. [4] On 11 July 2014 the CEO refused his application. On 5 August 2014 the applicant applied to the Queensland Civil and Administrative Tribunal (QCAT) to review the CEO’s decision that his case was an “exceptional” one in which it would not be in the best interests of children for him to be issued with a positive notice and Blue card. [5] The Tribunal must issue a positive notice to the applicant unless it is satisfied that it is an “exceptional case” because none of his offending is defined as “serious” in nature. Background [6] The applicant has been convicted of a number of criminal offences involving violence, drug use and the use of weapons. His criminal history spans a period from 1992 to 2010. [7] Details of his offences are as follows:  Discharge weapon over public place and possession of weapon whilst under the influence of liquor or drug (1992) – convicted and fined $150 weapons, licence disqualified for 12 months;  Break and enter dwelling with intent, assault occasioning bodily harm in company and wilful and unlawful destruction of property (1993) – on each charge, conviction recorded, good behaviour bond (12 months), $100 recognizance, restitution $1218.50 and compensation $2000;  Possession of prohibited import between May and June 2000 and possession of prohibited import between January and December 1995 – convicted and fined $300 and $120 respectively;  Breach domestic violence order and assault occasioning bodily harm (2000) – on each charge convicted and sentenced to 2 months imprisonment suspended one-year; -- 2 of 13 -- 3  Unlawful possession of weapons whilst not being the holder of a license (2002) - convicted and fined $150;  Assault occasioning bodily harm (2009) – no conviction recorded community service 12 months;  Willful damage (2010) – no evidence to offer. [8] In summary, the applicant was charged with 12 criminal offences over a period of 18 years, when he was aged between 27 and 46 years. He was convicted on 11 of the 12 charges. [9] The CEO submits that the offence of assault occasioning bodily harm in 2009 is of particular concern because it was directed at a 6yo child. The police brief indicates that the applicant was reprimanding his nephew and “pushed out” at the child striking him on the face. The child sustained several scratches to the upper and lower eyelids and bruising and swelling to the left eye which required treatment at the local Island Health Centre. [10] The child disclosed to staff members at the local school the following day that the applicant had “thrashed” him. The child also disclosed to police that the applicant used a clenched fist to punch him in the face. The child said that the punch made him “sad and sore” and made his eye “red”. [11] The applicant gave evidence at the hearing. He admitted seeing the scratches on the child's face but did not do anything to treat them because the local Health Centre was closed. He said that he did not take the child to the Health Centre the next morning because it would've made him late for school and he thought it was better to get him to school on time. [12] The applicant said that from a cultural point of view he can “do what he needs to do to correct the child's behaviour”. However he acknowledged that “things have changed” and he has “learnt his lesson” and he now knows that physically disciplining a child is “not the right way”. [13] The applicant stated that that the child's mother (the applicant's sister) had asked him to discipline the child. The applicant said that he wanted to have a talk with the child about his behaviour but that the child was not looking at it at him and he wanted the child to do so. He said he tried to grab the child who ducked down. His intention was to grab the child by the shoulder but he got him on the face. [14] He said that after the incident he thought he said “sorry” to the child but couldn't remember exactly. He admitted that he was frustrated with his nephew and was “growling” him (talking to him). The applicant said he now knows it was wrong and he feels sorrow. [15] When asked specifically if the incident was an accident or if he meant to do it, the applicant said, “I can't remember what really happened”. It was acknowledged on the applicant’s behalf that in fact his evidence in relation to what happened was inconsistent. It was contended that initially he said -- 3 of 13 -- 4 that he was trying to get his nephew’s attention because he was not listening or looking at him. In his words “I tried to grab his shoulder and he ducked and that is when my hand smacked into his face and my fingernail grazed his face near his eye. Later, he gave evidence to the effect “I think, I can't remember what really happened”. [16] It was also submitted that the applicant learnt about children and the inappropriate use of physical discipline when he was involved in a school leadership camp while working at another Island. He said that it is “better to growl kids the right way, get them to calm down and talk in a gentle but firm way”. [17] The applicant confirmed that his family would support the approach he had taken by hitting the child, even if the child was injured. He gave evidence both in writing and orally about how he now disciplines his grandchildren and nieces and nephews. He explained that he sits down and “talks through right from wrong” and “when they do silly things he tells them why”. [18] The applicant said that he wanted to deal with the matter within the family because in his culture “you are not supposed to go around telling everybody things”. [19] In relation to the breach of a domestic violence order in 2000, the order was made some 11 months prior to the incident. The CEO points out that the applicant’s conviction for this offence resulted from a physical assault on his partner causing her to sustain a cut above her right eye which required stitches. [20] The applicant said that he was angry with his wife for having an affair. He said that he could not recall whether there were other times that he had hit his wife or whether the children were home at the time of the incident. He said that if he has an argument with his wife now, he would go outside and try to settle down before acting. [21] He told the Tribunal that “I now know what I did was wrong and feel sorrow”. He said that he apologized to his wife and it was submitted on his behalf that there is no evidence before the Tribunal to suggest that a similar incident had occurred after this time. [22] The CEO argues that the applicant’s criminal history as a whole raises serious concerns regarding his propensity for violence and his ability to act protectively towards children in his care. The Applicant’s case [23] The applicant said that he had applied for a Blue card so that he can work with the children on the Island in his capacity as a land and sea Ranger. By holding a Blue card he would be able to teach them cultural and -- 4 of 13 -- 5 professional knowledge in relation to sea grass monitoring and turtle and dugong monitoring. [24] At the hearing the applicant gave his evidence in a slow and measured way. At times he was hard to follow but the Tribunal formed the view that he was trying very hard to be honest and tell the truth. He acknowledged that he has a criminal history consisting of some minor matters and a number of more concerning offences involving weapons, drugs and violence. [25] Regarding his conviction for discharging a weapon in a public place under the influence in 1992, he said that he had been drinking alcohol and had asked a community police officer for a lift but was refused. He got angry and fired some shots in the air with his weapon. When asked why he had a problem with the law and guns he said “Well before when I did not get enough income I would go hunting for deer”. [26] The applicant was convicted in 1993 of break and enter dwelling with intent, assault occasioning bodily harm in company and wilful and unlawful destruction of property. He claimed that the victim had been arguing with his uncle and he took offence at this when he was drunk and so he went to the victim's house. [27] Regarding the breach of the domestic violence order and assault occasioning bodily harm in 2000, the applicant admitted that the victim was his wife. He says it was Christmas and he was extremely drunk. [28] It was submitted on behalf of the applicant that these incidents occurred in his 20s and 30s when, if “there was plenty of grog (he would) drink until daybreak.” However he says that the first time he had had a drink of alcohol in a very long time was socially on his 50th birthday in 2014. While he was not able to clearly say when he ceased drinking alcohol to excess, it was submitted on his behalf that the oral evidence at the hearing, indicates that he has not been drinking alcohol to excess for at least the last 10 years. [29] Dr. SJ who is a general practitioner in the Torres Strait and has known the applicant and his family for 4 years gave evidence to support the applicant. He said that he was aware of the applicant’s criminal history. He had also seen the CEO's reasons for refusal. Dr. SJ said that the applicant could be headstrong but will negotiate and move forward in relation to his medical treatment. He said that the applicant “is not someone who will act if I tell him this is what we should do. That's not him! We negotiate. That is a sign of cultural awareness and maturity. I appreciate that as a medical practitioner.” [30] While Dr. SJ was not able to comment directly on whether the applicant posed a risk to children, he was able to confirm that in his observation, the applicant's interactions with his wife were normal and healthy. -- 5 of 13 -- 6 [31] He further stated that “island life is communal life”. They will often look after their grandkids. There is a positive engagement with the children who look towards (them) for interactions and enjoyment while at the clinic. [32] When asked why he thought that the applicant would be suitable to hold a Blue card Doctor SJ said “I can give a medical opinion and when I see his interactions with his family in the clinic, it is positive and from that way I have no concerns in the clinic, so there is no reason for me not to give that evidence.” [33] The applicant's wife said that she had known him for over 30 years. She said that when the children were younger and she had to travel to Thursday Island for a week or two she would leave the children with him and never had any concerns in doing so. [34] With respect to the assault on her by the applicant in 2000, she said that she remembered he had been drinking and he had hit her on the eyebrow. She said that he apologized the next day when he was sober and she accepted the apology. Further she said that she told him to stop drinking or she would leave and he had listened to her. [35] She claimed that this was the only time that there was a physical assault although she admitted that when he was drinking alcohol, it would make her frightened because she felt he might hit her again. She said that the applicant has changed over the last 5 to 10 years because he had not been drinking [36] She said that when the applicant is a bit stressed he likes to talk to her about it. She pointed out that he is now a helpful person and offers his time to other people in the community. He also takes the grandkids, nieces and nephews out on the boat. He gets on well with them and treats them in a good way. [37] The applicant’s sister who is the mother of his nephew gave oral evidence that the applicant took on a father figure role for her children because she was a single parent and culturally, that is the way it is done. She said her three older children spend a lot of time at his place. [38] Her recollection of the incident involving the assault on her son was that on the day, the applicant came home with her son and explained that he was trying to reach down to him and his nail scratched him. She said that her son did not appear to be scared. [39] In her view the injury did not require medical attention. She said that it was culturally acceptable for the applicant to discipline her children and she doesn't believe that there was any intentional harm and that it was an accident. It had not changed anything between the families. -- 6 of 13 -- 7 [40] She described the applicant as “a role model as an uncle for young boys going through various stages of growing up. He shows the boys how to hunt for fish and the responsibility of providing”. [41] She said that she was aware that there had been domestic violence and alcohol use between the applicant and his wife but that was before when she was young but not anymore. She said that the applicant had ceased drinking alcohol except for his 50th birthday some six months earlier. [42] The applicant's 25-year-old son gave evidence and described his father as a “traditional island dad”. He said that his father “would be the one to teach us the ways of life, what to do and what not to do”. He explained that western parenting practices have only recently become understood and that these may clash with customary beliefs, particularly in relation to the physical discipline of children. He said that physical discipline was common when he was growing up. He commented that the Island tradition and culture is very strong and blending with western society and the laws has been “hard to deal with”. [43] He said he did not confront his father in relation to the assault on his nephew in 2009 because he was following protocol. He stated that because “he is my dad's nephew he is my dad's responsibility”. He said that when the child comes to initiation or first shave or hunt or marriage he has to go through the applicant. [44] He said that the child is a cheeky fellow who was giving his mother a hard time and that he did not think he had been injured or adversely affected by the discipline. [45] When questioned about his father’s alcohol use, he said that previously his father would drink when family came up from South or during the festive season but “a lot has changed”. He said that his father only drinks on special occasions in moderation because he looks after his grandkids. [46] With respect to his parent’s relationship, he said there were problems when he was growing up but not anymore. In the past his parents would come home late, have arguments and “a bit of a fist”. He said that he personally and other members of the community have a lot of respect for his father. This respect comes from his position within the family but also because he is a leader. What is the relevant law? [47] A major consideration in an employment screening decision is a child's entitlement to be cared for in a way that protects the child from harm and promotes the child's well-being1. 1 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 360. -- 7 of 13 -- 8 [48] The issue for determination in this case is whether this is an “exceptional” case where it would not be in the best interests of children for the Tribunal to issue a positive notice and therefore the Tribunal must issue a negative notice. The presumption in this case is that a positive notice should be issued to the applicant. [49] The CEO submits that in order to issue a positive notice for the applicant the Tribunal must be satisfied on the balance of probabilities and “bearing in mind that the gravity of the consequences involved”, that an exceptional case does not exist2 Neither party is an onus to prove that an exceptional case exists3. [50] The term “exceptional case” is not defined in the Act and is a matter of discretion considering the merits of each case4. [51] The Appeal Tribunal has stated that a phrase such as “exceptional case” must “be considered in the context of the legislation, which contains it, the intent and purpose of the legislation and the interests of the persons who it is designed to protect”5, namely children. The Appeal Tribunal endorsed the comments made by Philippides J.6 in Maher’s case that “ the proper approach is… to consider its application in each particular case, unhampered by any special meaning or interpretation”. [52] The CEO emphasized that any hardship or prejudice suffered by the applicant or indeed any benefit to children by a determination is irrelevant to the consideration7 and previous Tribunals have indicated that the passage of time alone is not determinative of whether or not an “exceptional case” exists. [53] Section 226 of the Act sets out the matters that the Tribunal must consider in determining whether an “exceptional case” exists. However the list is not exhaustive and does not confine the Tribunal to consider only those matters. [54] The CEO submitted strongly that the offence of assault occasioning bodily harm in 2009 was directed at a six-year-old child and is of particular concern. The CEO emphasized that the police brief of facts indicates that the applicant reprimanded his nephew by striking him to the face. The child sustained several scratches to the upper and lower eyelids and bruising and swelling to the left eye which required treatment at the local Island Health Centre. [55] The child disclosed to several staff members at the local school the following day that the applicant had “thrashed” him. He also told police 2 Commissioner for Young People and Child Guardian v Maher & anor [2004] QCA 492. 3 CCYPCG v Storrs [2011] QCATA 28. 4 Kent v Wilson [2000] VSC 98 at para 29. 5 CCYPCG v FGC [2011] QCATA 248. 6 [2004] QCA 492. 7 AX v CCYPCG (No 2) [2012] QCATA. -- 8 of 13 -- 9 that the applicant used a clenched fist to punch him in the face. The applicant was convicted of this offence and was required to undertake 50 hours of community service with no conviction recorded. [56] The CEO also points out that the applicant has a conviction for breach of a domestic violence order in 2000 as a result of a physical assault on his wife causing her to sustain a cut above her eye, which required stitches. [57] In the case of CCYPCG v Maher and anor8 the Court of Appeal endorsed the approach of identifying and balancing the relevant “risk’ and “protective’ factors arising from the circumstances of a particular case. The respondent submitted that the weight to be applied to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly. [58] The CEO submits that the following protective factors exist:  The applicant has not been charged or convicted of any further offences since 2009 and he has made it clear that he wishes to abstain from further offending in the future;  The applicant appears to have changed his drinking habits and is actively involved in his family life and the broader community on the Island;  He is engaged in stable and gainful employment;  He reports that he has changed the way he interacts with and disciplines children and no longer uses physical discipline.  He has identified how the strategies which he now uses to manage children's behaviour such as diversionary measures to redirect children and encourage positive behaviour  He demonstrates some insight into the impact his actions had on his nephew saying it would have been “scary for him”  He now uses non-violent strategies for dispute resolution including walking away to calm down and then talking about matters. The CEO acknowledges that he provided an example of an instance from everyday life where he peacefully resolved an issue with another woman on the island;  The applicant’s witnesses have made positive statements in support of him and noted that he has changed, he no longer drinks the way he used to and he treats the children well. [59] The CEO also submits that there are some significant risk factors: o The applicant has a criminal history spanning 17 years that includes weapons related offences, violent offences and drug- related offences. o There is particular concern about the offence towards his 6yo nephew resulting in substantial injuries to the child's face. The CEO questions the ability of the applicant to respond calmly and 8 [2004] QCA 492. -- 9 of 13 -- 10 in a non-violent manner to situations of stress or discipline involving children. o The evidence of the applicant and his family that the incident occurred as a result of the applicant applying customary discipline to the child. The CEO submits that the police report indicates that the applicant became frustrated with the child and struck him in anger. o The applicant's decision to send the child to school rather than seeking medical assistance reflects misguided decision-making and a further failure to act protectively towards the child. The CEO contends that the applicant’s version of the incident is not consistent with the police material. He argues that the applicant’s written and oral evidence was largely self-serving and demonstrated a tendency to minimize his actions reflecting poorly on his level of insight and preparedness to accept responsibility for his offending behaviour. o The applicant's attitude towards Child Protection is highly concerning. The CEO points out that the applicant's evidence indicates that the offence only became a problem when authorities became involved and that the applicant would have preferred to deal with the matter within the family. o This attitude serves only to conceal the harm caused to the child and does not protect the best interests of the child. Further, the applicant’s standing and influence within his family and community means it is incumbent on him to demonstrate appropriate protective behaviour towards children. o The evidence of the applicant's witnesses indicate that due to the applicant's standing they would not challenge him, if they thought his disciplinary measures were too harsh, raising concerns that if the applicant returned to his previous behaviours, they may go unchecked. o The evidence suggests domestic violence occurred more extensively than the applicant's criminal history reflects. The CEO points to the evidence of the applicant’s sister and son who both gave evidence that ‘in the past” there was domestic violence within the family. [60] The CEO also points out that the evidence of Dr. SJ does not address the applicant's eligibility for regulated child related employment. The CEO emphasises that formal counselling is not readily available on the Island. [61] The CEO points out that there is no independent evidence to indicate that the applicant understands the triggers for his offending, that he has insight -- 10 of 13 -- 11 into the impact of his behaviour on others, and that he has addressed the concerns raised by his criminal history such that he can be trusted to safeguard the best interests of children in his care. [62] The CEO submits that it is extremely important to have appropriate insight into harmful behaviour where there is a history of unacceptable behaviour. [63] The CEO also emphasizes the broader issue regarding the transferability and unconditional nature of a Blue card. He points out that a Blue card will allow the applicant unsupervised and unfettered access to children and young people in a range of regulated activities. A Blue card and positive notice is fully transferable and unconditional. Should the applicant receive a positive notice and a Blue card? [64] The applicant submits that he has positive and supportive relationships with family members, his general practitioner Dr. SJ and the local Island community in general. [65] It is submitted on his behalf that there is no evidence to suggest that he did not comply with the various penalties that were imposed in relation to his criminal offending and thus the Tribunal can accept that he has a willingness to comply with the law. The applicant has had no further criminal convictions since 2009 and no criminal entries since 2010. [66] The applicant ceased regular alcohol use or misuse approximately 5 to 10 years ago and has displayed insight into the negative link between alcohol and his criminal offending. There is no evidence of alcohol adversely impacting upon his life since then. [67] The applicant is in stable full-time employment, is passionate about his job as a land and sea Ranger and seeks to pass on his knowledge and experience to the children of the Island. [68] It is submitted that the applicant is a respected man within his family and community. He positively contributes to the community by assisting with activities and festivals and acting as a warden in the local church. [69] He has expressed his remorse for his past actions and has in recent years learned and applied strategies for disciplining and managing children. The applicant and his wife care for 4 of their grandchildren on a full-time basis. [70] The applicant has been able to explain and demonstrate new methods and strategies for identifying and responding to stress, anger and frustrating situations. [71] The applicant also accepts there are risk factors in the granting of a positive notice. He has a long history of offending of approximately 17-18 years. -- 11 of 13 -- 12 [72] His criminal history, in particular the two assault matters have personally impacted on members of his family, namely, his wife and his nephew. It is submitted on his behalf that he was an honest witness. In particular, in relation to the incident involving his nephew it is argued by his representative that he took a long time to consider some of his answers and if he was unable to answer a question he responded with “I don't remember”. [73] The Tribunal notes that the incident involving his nephew did not involve him being affected by alcohol whereas his historical offences occurred while he was affected by alcohol. [74] The applicant admits that he has not engaged with counselling or other professional support services to independently address triggers for re- offending and insight into behaviours. The only independent evidence before the Tribunal was that from Dr. SJ It is submitted on behalf of the applicant that Dr SJ was able to comment on the applicant's positive interactions with other adults and children and that the Tribunal should place significant weight on this evidence. [75] The applicant admits that he is seeking a Blue card to primarily work as a Ranger on the Island but a positive notice and Blue card is fully transferable. He acknowledges that the Tribunal must be satisfied that he can maintain a stable supportive and safe and safe environment for children. In this regard it is submitted on his behalf that he and his wife care for 4 of their grand children on a full-time basis and there is no evidence to suggest any issues of concern have been raised in relation to their well-being. Further the applicant's nephew and siblings maintain a positive and ongoing relationship with the applicant. [76] Consequently it is submitted that on balance the Tribunal can find that while there are some risk factors attached to the applicant holding a Blue card, those factors are manageable and acceptable. It is further submitted that the protective factors outweigh the risk factors to the extent that the applicant's case is not an exceptional case. Is the applicant's case exceptional? [77] I must consider whether the applicant's case is an exceptional one. My paramount consideration is the welfare and best interests of children and that every child is entitled to be cared for in a way that protects children from harm and promotes children's well-being. [78] I have considered the matters identified under section 226(2) of the Act. I am satisfied that none of the offences are categorized as serious or disqualifying under the Act. Details of the applicants offending are set out in the evidence before me. I am particularly conscious of the breach of the Domestic Violence Protection Order in 2000 and the assault on the applicant's six-year-old nephew in 2009. -- 12 of 13 -- 13 [79] I note that the applicant was convicted for 11 of the 12 matters for which he was charged. In one matter he was sentenced to 2 months imprisonment suspended for 1 year. His most recent offence appears to have been committed in 2009. [80] At the hearing I had the opportunity to observe the applicant. I made particular note at the time of the very slow and deliberate manner in which the applicant presented his evidence and I formed the view that he was trying very hard to be honest and tell the truth. [81] It is clear that the applicant is not a sophisticated man but he impressed me as demonstrating some insight and remorse into his actions of the past. While he did not articulate that he understands the triggers for his offending, he appears to have addressed the primary source of his early offending by reducing his alcohol intake significantly. [82] There was also evidence to indicate that he does have strategies to deal with his frustrations and he does seek support and advice from his wife in stressful situations. I formed the view that he is a man who is proud of his culture and is seeking to be a positive role model to children and young people who might come into his care. [83] I consider that the applicant has a strong supportive partner and there are no current domestic violence concerns. In his own way he has been seeking to change his behaviour in recent years and he maintains steady gainful employment. I have had the benefit of very comprehensive submissions from both the applicant and the CEO and on the basis of the evidence available I have formed with you that this is not an exceptional case. [84] I have decided to set aside the CEOs decision to refuse the applicant a positive notice and grant a Blue card to the applicant. -- 13 of 13 --