Aplin v Chief Executive Office, Public Safety Business Agency [2015] QCAT 218

CITATION: Aplin v Chief Executive Office, Public Safety Business Agency [2015] QCAT 218 PARTIES: Nicole Ada Aplin (Applicant) v Chief Executive Office, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML265-14 MATTER TYPE: Childrens matters HEARING DATE: 25 May 2015 HEARD AT: Brisbane DECISION OF: Acting Senior Member Browne DELIVERED ON: 12 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 26 September 2014 to cancel the positive notice issued to Nicole Ada Aplin and to issue a negative notice is confirmed. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to cancel the positive notice and to issue a negative notice – where offence of affray with children present – whether exceptional case exists – whether not in the best interests of children to issue a positive notice Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 226, s 237, s 547 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 24 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; cited -- 1 of 12 -- 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291; cited REPRESENTATIVES: APPLICANT: Nicole Aplin represented by Dr Berry Zondag, solicitor, Moreton Island Community Legal Centre RESPONDENT: Chief Executive, Public Safety Business Agency represented by Peter Reid, in house solicitor, Public Safety Business Agency REASONS FOR DECISION [1] Nicole Aplin is a 37 year old indigenous woman who identifies herself as a ‘Waanyi’ from the Waanyi tribe.1 [2] Ms Aplin was born in Mount Isa but has spent most of her life living in Doomadgee. She met her current partner of approximately 16 years in Doomadgee and they now have five children aged between 16 and 6 years. [3] Ms Aplin worked as a Teacher Aide at the Doomadgee State School. She held a blue card from 20 April 2012 to 26 September 2014, being the date that her positive notice or blue card was cancelled. [4] Prior to cancelling Ms Aplin’s positive notice, the Chief Executive received information from the Queensland Police Service (QPS) about Ms Aplin’s offending behaviour. [5] There was an offence on 20 August 2013 in relation to the posting of comments on the social website ‘Facebook’ that did not proceed because there was ‘no evidence to offer’.2 There were further incidents on 20 January 2014 and 24 January 2014 resulting in the offence of ‘affray’. Ms Aplin was convicted and a period of probation for six months was ordered. [6] The incidents in January 2014 involved several family members ‘feuding’ in the street in the indigenous community of Doomadgee.3 The police information reports that both incidents were captured on video footage. During the incident on 20 January 2014 there were approximately 200 to 300 people including children gathered in the street. Ms Aplin was observed to have exchanged ‘multiple punches’ with another female.4 1 Life story of Nicole Aplin dated 13 February 2015, Exhibit ‘1’, [2]. 2 Respondent’s material filed in accordance with s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the section 21 material), p 6. 3 Ibid, p 11 and 14. 4 Ibid, p 11. -- 2 of 12 -- 3 [7] During the incident on 24 January 2014 there was approximately 100 to 200 men, women and children in the street surrounding four women fighting. Ms Aplin was observed to have ‘swung’ a 2 litre bottle of water at the head of one of women (who had been fighting) causing her to ‘stumble backwards’.5 [8] The Chief Executive conducted a review or reassessment of Ms Aplin’s eligibility to hold a blue card because of the changes to her criminal history. A decision was made by the Chief Executive that Ms Aplin’s case is ‘exceptional’ and continuing her blue card is not in the best interests of children.6 [9] Ms Aplin wants to review the Chief Executive’s decision. Ms Aplin says that she has moved away from Doomadgee and is now living in Mount Isa. She says that she needs a blue card so that she can find work in Mount Isa and do what she ‘likes best’ that is working with children. What is an exceptional case? [10] Ms Aplin’s offending behaviour is not a serious offence so the Chief Executive must not cancel her blue card by issuing a negative notice unless there is an ‘exceptional case’ for Ms Aplin.7 [11] The Tribunal on review is standing in the shoes of the Chief Executive decision-maker and must arrive at the correct and preferable decision.8 The Tribunal must therefore be satisfied that this is ‘an exceptional case in which it would not be in the best interests of children’ for Ms Aplin to hold a blue card, then the positive notice must be cancelled and a negative notice issue.9 [12] The Working with Children (Risk Management and Screening) Act 2000 (the Working with Children Act) does not define the meaning of an ‘exceptional case’. There are certain factors that the Tribunal on review must consider in determining whether this is an ‘exceptional case’. The factors include amongst others, when the offence was committed, the nature of the offending behaviour and anything else that the Chief Executive or the Tribunal on review reasonably considers relevant to the assessment of the person.10 5 Ibid, p 14. 6 Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act) ss 237, 221. 7 Ms Aplin’s eligibility to hold a blue card is reassessed under s 237 of the Working with Children Act, see also ss 221. 8 Queensland Civil and Administrative Tribunal Act 2009 s 24. 9 Section 237(2) of the Working with Children Act prescribes that division 9 applies in making a decision about whether to cancel a positive notice and issue a negative notice. 10 Working with Children Act s 237(2) and 226. -- 3 of 12 -- 4 [13] In determining whether Ms Aplin’s case is ‘exceptional’ the Tribunal must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.11 [14] In Commissioner for Children and Young People and Child Guardian v FGC12 the Appeal Tribunal said that the meaning of an exceptional case is a matter of discretion and should not be confined to ‘any general rule’.13 The Appeal Tribunal considered the Court of Appeal decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor14 and said that each case should be considered ‘unhampered by any special meaning or interpretation’.15 The Appeal Tribunal said: The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.16 [15] The Tribunal must also consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.17 The Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.18 [16] In the event that the Tribunal confirms the decision made by the Chief Executive, Ms Aplin is not prevented from applying to the Chief Executive, at some future time, for a blue card to enable her to work with children. [17] In this case the Chief Executive submits that there are issues of concern or risk because of Ms Aplin’s criminal history that can be summarised as follows: a) Since August 2013 Ms Aplin has been involved in three separate incidents that are directly related to her eligibility to work with children.19 b) All three incidents ‘demonstrate’ that Ms Aplin has engaged in ‘confrontational and aggressive behaviour that could expose children to physical or emotional harm’.20 c) Ms Aplin was of a mature age at the time of the most recent offending behaviour and was employed as a Teacher Aide. 11 Commissioner for Children and Young People & Child Guardian v Maher & Anor [2004] QCA 492 at [29]. 12 [2011] QCATA 291. 13 Ibid, [32]. 14 [2004] QCA 492. 15 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33]. 16 Ibid. 17 Working with Children Act s 5. 18 Ibid, s 6(a). 19 Respondent’s outline of submissions filed 25 May 2015, [31]. 20 Ibid. -- 4 of 12 -- 5 d) Ms Aplin’s actions in relation to the offending behaviour were not appropriate given her role within the community and her position as a staff member at the school.21 [18] In giving her evidence at the hearing Ms Aplin described her actions in January 2014 as being a ‘spur of the moment’ reaction to a situation. Ms Aplin said that the incident on 20 January 2014 was a ‘heat of the moment thing’ and she thought her granddaughter was in danger and she reacted. [19] In relation to the incident on 24 January 2014 Ms Aplin denies that she hit either of the women with a water bottle and said that she poured water over each of the women in the street. [20] Ms Aplin accepts that she posted the comments on Facebook in 2013 and said that this was ‘in response’ to her partner’s children (her five stepdaughters) behaviour towards her. Ms Aplin said that she was hurt because she had been a mother to her five stepdaughters and they were ‘disrespectful’. [21] Ms Aplin says she regrets everything that happened in 2013 and 2014. Ms Aplin says that the indigenous community carry their culture ‘very strong’ and she described the Doomadgee community as a ‘pressure zone’. [22] Ms Aplin says she made the difficult decision to move away from Doomadgee to live in Mount Isa with her partner and children in early 2015. Ms Aplin described the ‘move’ as being positive and said her life (now) is ‘great’. Ms Aplin says she needs her blue card so that she can apply for jobs in Mount Isa. She says that she has experience that will enable her to find work including work as a social worker and teacher aide. Are there exceptional circumstances before the Tribunal and therefore an ‘exceptional case’ exists? [23] The Tribunal has identified the following factors as being relevant to the exercise of discretion to determine whether Ms Aplin’s case is ‘exceptional’. a) Nature of the offending behaviour [24] Ms Aplin admitted to police, when questioned on 9 September 2013, to posting the following comments on Facebook on 20 August 2013: Four ur information lil girl … it was u spoilt disrespectful lil c***s22 that put him there by saying things about him on Facebook. And I did not show him anything he seen it for himself.23 21 Ibid. 22 Text quote intentionally altered for publication of these reasons. 23 Respondent’s section 21 material, p 8. -- 5 of 12 -- 6 [25] Ms Aplin was charged with ‘using a carriage service to menace, harass or cause offence’. The charge was discontinued on 10 April 2014 on the basis of ‘no evidence to offer’.24 [26] Ms Aplin said she posted the Facebook comments in response to her stepdaughter’s behaviour towards her as she felt she had a part in their upbringing. Ms Aplin said that her partner of many years went to jail for ‘disciplining children’ (her stepdaughters) who are aged between 22 and 16 years. She said that her stepdaughters blamed her for their father (her partner) going to jail. [27] Ms Aplin said her partner went to jail from June 2013 to December 2013 while she and their five children remained living in Doomadgee. Ms Aplin said that a few days after her partner went to jail her stepdaughters went to her house and walked into her yard. Ms Aplin said her stepdaughters were ‘abusing’ her and said that they ‘hit me in front of [the] children’. [28] Ms Aplin said that a short time later she and her children went to live in Mareeba to be close to her father in law. They returned to Doomadgee after her partner was released from prison. [29] When questioned at the hearing about whether the comments posted on Facebook were ‘appropriate comments’ for children to read Ms Aplin said, ‘not really, no’. [30] In relation to the 2014 incidents, Ms Aplin gave evidence about why she reacted or became involved. Ms Aplin said that her mother had passed away in 2001 and then her father in 2006 and that some people in the community had disrespected them and made hurtful comments to her (about her parents). Ms Aplin described the person who had made the hurtful comments as a close relative and said that it was necessary for her to defend her parents. [31] The offence on 20 January 2014 is described in the QPS information as follows: At about 6:00pm police observed numerous members of the crowd engage in verbal altercations before the defendant engaged in a physical altercation with another female. The defendant is seen approaching the other female and adopt a boxer like stance placing her clenched fists in front of her face before engaging in a physical altercation. The defendant exchanges multiple punches with the other female striking her numerous times in the head and upper body area. The fight continues for approximately 15 seconds before the defendant was dragged to the ground by the other female and separated by family members. 24 Ibid, p 6. -- 6 of 12 -- 7 The fight between the defendant and the other female was captured on video footage. The footage shows the defendant wearing a purple t-shirt, multi coloured shorts, no shoes with her hair tied in a bun. During the fight a number of onlookers with in the crowd could be seen cheering the two females as they fought.25 [32] Ms Aplin said at the hearing that on 20 January 2014 some family members came to her home swearing and wanting to fight her. She said that a young girl walked up to her and hit her while she was holding her granddaughter aged five to seven months old. She described the young girl that hit her as a ‘young youth’ and said that she was aged approximately 16 turning 17 years. Ms Aplin said that the young girl accused her of being a ‘trouble maker c**t’. [33] Ms Aplin agreed that there were children present during the incident and that the children in the street would have witnessed the incident. Ms Aplin said that in the Doomadgee community whenever there is a fight some parents living in the community will ‘drag children along’ to watch. She said that none of her children were present during the incident. Ms Aplin said that after she returned her granddaughter to her house she became involved in the incident describing it as a ‘heat of the moment thing’ because she thought her granddaughter was in danger so she had to react. [34] Ms Aplin also relies on submissions prepared by her legal representatives on 15 August 2014 that were given to the Chief Executive. The submissions prepared by Ms Aplin’s legal representatives provide different factual circumstances to that referred to in the QPS information. The relevant part of the legal submissions is as follows: 17. The female approached Ms Aplin and physically struck Ms Aplin’s left- side ribcage with her fist. 18. The assault occurred while Ms Aplin was still holding her granddaughter on the right-hand side of her body. 19. As Ms Aplin was holding her granddaughter, she was unable to defend herself. 20. The attacking female then exited Ms Aplin’s property. 21. As Ms Aplin was extremely agitated by the attacking female’s action, Ms Aplin returned her granddaughter to the house and confronted the female in the street. 22. It was in the street where Ms Aplin engaged in striking the other female several times. 23. Ms Aplin felt a substantial degree of frustration and anger towards the attacking female. When Ms Aplin was initially assaulted by the female her granddaughter was also harmed. 24. Ms Aplin’s actins were therefore instinctive to pursue her attacker.26 [35] The evidence given by Ms Aplin at the hearing about what happened on 20 January 2014 is slightly different to the version of events reported in the QPS information and the legal submissions. Ms Aplin said at the hearing that the 16 or 17 year old youth had pushed another women into her. There 25 Ibid, p 11. 26 Ibid, p 29. -- 7 of 12 -- 8 was no mention of the 16 or 17 year old youth having being ‘pushed’ into Ms Aplin in the legal submissions or the QPS information. [36] When Ms Aplin was questioned at the hearing about her response to the ‘assault’ she said that she could have handled the matter differently and said it was a ‘spur of the moment [reaction]’ and that she was ‘truly sorry’. [37] Ms Aplin agreed, at the hearing when questioned, that there were children in the street who had witnessed the incident and this would have made an impact on the children because Ms Aplin works at the school and the children see her every day. She said at the hearing that she ‘feels’ for the children and said ‘when at school [it] felt like I was a parent they saw me do that’. [38] In relation to the incident on 24 January 2014 Ms Aplin said that she had a bottle of water when she left her house and saw two women fighting. She said that she poured the cold water over each of the women. This is a different version of events to that contained in the QPS information. The relevant QPS information is as follows: Between 5:00 pm and 7:00 pm on the 24th January 2014, a large crowd gathered along Diamond Street Doomadgee with multiple fights breaking out between numerous members of the crowd. As the fights occurred they were captured on video footage. Police acquired a copy of the footage which shows a large crowd of approximately 100 to 200 men, women, and children lining Diamond Street surrounding four females fighting. The footage also shows the defendant standing amongst the crowd holding what appears to be a 2 litre bottle of water watching the females fight. As they fight progresses, two of the females fighting moved in the direction of where the defendant was standing. As they did so one of the females fell to the ground. As she fell she was kicked in the head before another female continued the fight for her. As the two females fought the defendant ran forward and swung the bottle containing water at one of the females. The bottle struck the female on the head causing her to stumble backwards. The females were then separated by several onlookers and the defendant. The defendant is depicted in the footage wearing a purple t-shirt, knee length jean shorts and no shoes.27 [39] Ms Aplin at the hearing said that she knew the people involved in the fight but did not recognise any children from the school witnessing the incident. Ms Aplin accepted, when questioned at the hearing, that her actions in January 2014 would have affected the opinions of the children (about her) witnessing the incident because of her position in the school and as a role model to the children. 27 Ibid, p 14. -- 8 of 12 -- 9 b) Remorse and insight into the offending behaviour [40] I accept that Ms Aplin is remorseful for her actions in posting the Facebook comments and being involved in the incidents in January 2014. Ms Aplin said at the hearing that she loves working with children and that the incident was a ‘big wake up call’. [41] Ms Aplin said at the hearing that the incidents have affected her ‘very bad’ and said that she has lost her blue card stating that was her ‘thing’. Ms Aplin talked openly at the hearing about her life and said that her mother was always working and it is important for her to work. Ms Aplin said that without her blue card she can no longer do the things that she likes doing. [42] Ms Aplin talked openly at the hearing about the young people living in Doomadgee and the impact of family fighting (in the community). She said that she was truly sorry for what happened. [43] When questioned at the hearing about counselling or treatment received since the offending behaviour Ms Aplin said that she and her partner would go out bush to get away from the community and would take their children away on weekends. Ms Aplin said that she has not participated in any counselling since the incidents and said that she has spent time settling her children into school and their new home since moving to Mount Isa. Ms Aplin said that the next thing to do is to get some counselling. [44] When questioned at the hearing about the period of probation (six months) following the ‘affray’ charges, Ms Aplin said that there were no support programs in Doomadgee and the probation involved her paying a fine and required her to ‘not get into trouble for six months’. Ms Aplin said that she did not receive any advice or information during her period of probation and she relied on her own strategies such as going to the bush with her partner and spending time with her family. c) Employment and other factors [45] Ms Aplin relies on the evidence of several witnesses who she says have worked with her at the school. Some of Ms Aplin’s witnesses were available to answer questions by telephone at the hearing. [46] Richard Barrie was available by telephone at the hearing. He was the principal at the Doomadgee State School and has known Ms Aplin for approximately 6 years (from 2007). Mr Barrie was not aware of Ms Aplin’s criminal history and he has had no contact with Ms Aplin since December 2013 when he stopped working at the school. [47] Mr Barrie also provided a written reference. He says in his reference that a ‘notable feature’ of Ms Aplin’s personality was ‘her nurturing manner, her awareness of safety issues and the need to promote well-being and confidence in the students of Doomadgee State School'.28 28 Exhibit ‘3’. -- 9 of 12 -- 10 [48] Belinda Duncan was available by telephone at the hearing. She is a teacher at Doomadgee State School who worked with Ms Aplin at the school for approximately 10 months. Ms Duncan has had no contact with Ms Aplin since early 2015 and did not know about Ms Aplin’s criminal history. [49] Ms Duncan described Ms Aplin’s work as a Teacher Aide as being ‘reliable and dedicated to her job’. Ms Duncan said in her written reference that Ms Aplin ‘has shown herself to be a positive role model to the students in my class and students in the wider school community’.29 [50] Simon Calder was available by telephone at the hearing. He is a Year 5 teacher at the Doomadgee State School and worked with Ms Aplin for approximately seven to eight weeks. Mr Calder described Ms Aplin in his written reference as being ‘approachable, friendly and pleasant and has always had the best interests of the school and the children at heart’.30 [51] Mr Calder has had no contact with Ms Aplin since December 2014 and was not aware of her criminal history. Mr Calder said, when questioned at the hearing, that during the four years he knew Ms Aplin he did see her around the school. He also said that because Doomadgee is a small community he would see people out and about and would sometimes see Ms Aplin at the shop or at a community event. Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists? [52] I accept that Ms Aplin is remorseful for her actions resulting in the offending behaviour in 2013 and 2014. Ms Aplin has made the decision to move herself and her family away from Doomadgee to start a new life in Mount Isa. [53] I also accept that Ms Aplin is committed to her work as a Teacher Aide. She is described by her former colleagues as being reliable and valued. [54] The offending behaviour in 2014 is serious because there were children present at the time and some of the children would have been students at the Doomadgee State School where Ms Aplin worked. The incident in 2013 in relation to the posting of Facebook comments is also of concern because the comments (written by Ms Aplin) were directed towards Ms Aplin’s stepdaughters aged between 22 and 16 years. [55] Ms Aplin says that she has moved away from Doomadgee to start a new life in Mount Isa and continues to rely on her partner for support. There is no independent evidence before the Tribunal about Ms Aplin’s support networks in Mount Isa and her interactions in the community. This is important given that the offending behaviour is recent and involved Ms Aplin reacting to a situation in the community. Ms Aplin was a role model to 29 Exhibit ‘5’. 30 Exhibit ‘6’. -- 10 of 12 -- 11 children who witnessed the behaviour because she was a teacher at the school and was known by the children living in the small community. [56] The witnesses who support Ms Aplin’s work as a Teacher Aide that were available at the hearing were not aware of Ms Aplin’s criminal history and have had no contact with Ms Aplin since she moved to Mount Isa. There is no independent evidence before the Tribunal about Ms Aplin’s personal circumstances in Mount Isa and what strategies she now has in place to manage any stressful situations that may arise. [57] Ms Aplin has not engaged in any counselling or support from other health professionals since the offending behaviour, to address her reactions to stressful situations. Ms Aplin has recently moved away from the Doomadgee community where she has lived the majority of her life. In the absence of any independent evidence to support Ms Aplin’s application about the strategies she now has in place and her interactions in the community, the Tribunal cannot be satisfied that if Ms Aplin is again faced with a stressful personal situation she will not react in a way that is not in the best interests of children. [58] The Tribunal has carefully considered all of the circumstances in this matter and the submissions made by Ms Aplin including her evidence and the evidence of her witnesses. In determining whether an exceptional case exists the Tribunal on review must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests of the children for a blue card to be issued. I am satisfied that there are exceptional circumstances in this case. [59] The exceptional circumstances include the nature of the offending behaviour that is serious because several children witnessed the ‘affray’ incidents. Some of the children who witnessed the ‘affray’ incidents were also students from the school were Ms Aplin worked as a Teacher Aide. During the ‘affray’ incidents Ms Aplin reacted in a way that is not in the best incidents of children. On 20 January 2014 Ms Aplin was involved in a ‘fight’ with another woman and on 24 January 2014 she is reported by the QPS to have ‘swung’ a bottle of water at a woman who was involved in a ‘fight’ with another woman. [60] The Facebook comments written and posted by Ms Aplin are offensive in nature and were directed towards her stepdaughters who were aged between 22 and 16 years at the time. [61] Ms Aplin’s reaction to the situations in 2013 and 2014 were not appropriate responses given Ms Aplin’s position in the local school and as a role model in the small community. [62] There is no independent evidence before me to support Ms Aplin’s evidence that she has strategies in place to manage her personal stresses and her reactions to situations of personal conflict. I am satisfied this is an -- 11 of 12 -- 12 ‘exceptional case’ in which it would not be in the best interests of children to issue a positive notice.31 Conclusion [63] The Tribunal must make the correct and preferable decision and in determining whether this is an exceptional case for the purposes of the Working with Children Act I must consider the welfare and best interests of children as being the Tribunal’s paramount consideration. [64] The Tribunal cannot be satisfied that if Ms Aplin is again faced with a stressful personal situation that she has strategies in place to manage her reaction so that she will not react in a way that is not in the best interests of children. [65] The Tribunal determines that the correct and preferable decision is that the decision made by the Chief Executive Officer on 26 September 2014 to cancel the positive notice issued to Nicole Ada Aplin and to issue a negative notice is confirmed. 31 Working with Children Act s 221(2). -- 12 of 12 --