ABM v Chief Executive Officer Public Safety Business Agency [2015] QCAT 189

CITATION: ABM v Chief Executive Officer Public Safety Business Agency [2015] QCAT 189 PARTIES: ABM (Applicant) v Chief Executive Officer Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML186-14 MATTER TYPE: Childrens matters HEARING DATE: 20 March 2015 HEARD AT: Hervey Bay DECISION OF: Member Milburn DELIVERED ON: 30 May 2015 DELIVERED AT: Hervey Bay ORDERS MADE: 1. The Tribunal confirms the decision of the chief executive officer of the Public Safety Business Agency to issue ABM with a negative notice. 2. The Tribunal prohibits the publication of the names of the adult and his family in the decision relating to application number CML186-14. CATCHWORDS: Blue Card – non-serious offence – whether case is exceptional – where multiple offences – where substance-abuse is being addressed – whether the protective factors outweigh the negative factors Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 24, 66 Child Protection Act 1999 (Qld) s 189(2)(a) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 -- 1 of 10 -- 2 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 TAA, Re [2006] QCST 11 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 EAA, Re [2008] QCST 8 APPEARANCES: APPLICANT: ABM RESPONDENT: Public Safety Business Agency REPRESENTATIVES: APPLICANT: Self RESPONDENT: Ms N Taylor REASONS FOR DECISION [1] The applicant, ABM, is 50 years of age. He would like a blue card but has a criminal history. He acknowledges his past criminality and substance abuse problems. He has taken remedial action. [2] On 21 February 2014, the applicant lodged an application with the Commissioner for Children and Young People and Child Guardian1 to issue a positive notice. The Public Safety Business Agency (PSBA) rejected his application. The agency therefore denied him a blue card. [3] The Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) provides generally that the principle of the welfare and best interests of the child are paramount2. [4] I must consider the consequences of this decision. That is to say the consequences of a decision to a child. The consequences of the decision to the applicant are irrelevant. [5] The applicant has convictions for offences, other than a serious offence, as defined in the Act. If an applicant has conviction for an offence, other than a serious offence, the Act provides that unless it is an exceptional case a 1 On 1 July 2014, the blue card functions of the Commissioner for Children and Young People and Child Guardian transitioned to Public Safety Business Agency (Blue Card Services). Accordingly, the Chief Executive Officer of the Public Safety Business Agency is the respondent in these proceedings. 2 Section 6 of the Working with Children (Risk Management and Screening) Act (Qld) s 6(1); formerly named the Commission for Children and Young People and Child Guardian Act 2000 (Qld). -- 2 of 10 -- 3 positive notice must issue3. The PSBA determined this is an exceptional case. That is, it would not be in the best interest of children to issue the applicant with a positive notice. [6] In short, the denial was because of his criminal history and concerns regarding substance abuse. [7] The criminal history contains various entries between 1981, when the applicant was a child, through until 2009. In 2009, a court convicted him of the offence of ‘enter enclosed land not prescribed premises without lawful excuse’. In the same year, the same court convicted him an offence of ‘behave in an offensive manner in/near public place/school’. [8] These two matters deserve scrutiny. [9] Prior to the two matters referred to in 2009, the applicant's most recent relevant convictions, which were for a number of things including malicious damage, failure to appear, disqualified driving, refusing breath analysis and offensive conduct, were all determined summarily in a New South Wales local court in 19894. The matters referred to in 1989 are of minor consequence, relative to the matters mentioned above. Prior to that, the adult suffered various convictions, which related to traffic matters, drink driving and stealing through the 1980s. Apart from various periods of disqualification and the imposition of a good behaviour bond, the adult suffered low-level fines by the presiding magistrate on each occasion. I am not concerned with those matters as they are not, in my view, relevant to these proceedings in any substantive way. That said, the convictions do suggest that, at least during the 1980s, the adult did have a substance- abuse problem, specifically with the consumption of alcohol. The first conviction of concern. [10] On 13 January 2009, the presiding magistrate at the XXX local court, New South Wales, sentenced the applicant for the offence of ‘enter enclosed land, not prescribed premises, without lawful excuse’. The court imposed a fine of $500. This strongly suggests the court considered it to be of low- level criminality. The circumstances relating to the offending behaviour as presented to the court were: a) The accused is the brother-in-law of the victim. b) There has been an ongoing property dispute between the accused and his wife and her sister, the victim. c) About 6:45pm on Saturday, 2 August 2008, the accused has attended the victim’s residential premises in the company of his wife. 3 Section 221 of the Act. 4 A court convicted the applicant for driving without a licence in 2001, and he suffered a period of disqualification for 2 years. I ignore this matter as being irrelevant to considerations before the tribunal. -- 3 of 10 -- 4 d) The accused approached the front door with his wife. The wife of the accused was demanding the return of the stated property5. The victim secured the front door of the premises in fear of the accused and his wife. e) The accused said, "They won't open the door, smash the fucking window." f) The accused has gone around to the rear of the premises with his wife and approached the rear door. g) The victim closed the door. The victim was attempting to lock the door. h) The accused was pulling on the door handle as the victim, from inside the premises, had braced herself against the doorframe and had hold of the door handle with her right hand to prevent the accused and his wife from entering the premises. i) The accused forcibly pulled the handle from the grip of the victim allowing his wife to force the victim to stumble backwards into her residence and gain entry into the premises. j) A short time later the accused stood on the top step of the rear door, took hold of the door handle, and opened the rear screen door. k) The victim’s de facto took hold of the accused’s arm to prevent him from entering the premises. The accused pulled from the grip and entered the premises. The victim followed the accused into the lounge room of his residence. l) Children were in the vicinity. m) The victim and the accused wife were involved in a physical altercation and the accused’s wife called to the accused to take possession of the property. He did and they left the premises. n) The victim had informed the applicant and his wife that they were not permitted to enter the premises. On numerous occasions, she asked them to leave the residence prior to and during the forced entry. The second conviction of concern. [11] On 13 March 2009, the same court sentenced the applicant for the offence of ‘behave in an offensive manner in/near public place/school’. The presiding magistrate placed him on a 12 month supervised New South Wales probation service with an order to obey all reasonable directions regarding counselling, educational development or drug and alcohol rehabilitation. The penalty strongly suggests that the court was concerned about aspects of rehabilitation. This is particularly so given that the accused had not long before appeared before the court for, what I have described as, the first conviction of concern. The following information has been summarised from the police brief: a) Police attended a Community Hall regarding a 16th birthday party. 5 The dispute was over a child's bridesmaid dress. -- 4 of 10 -- 5 b) The applicant was in charge of the party. c) The party was for the applicant’s daughter. d) Police registered the party the previous week. e) Police had earlier spoken with the applicant about the party. Police had expressed their concerns, given an estimate that 200 to 250 young people were to attend the party. Police expressed their safety and community issue concerns. f) Police identified other concerns such as the possible consumption of alcohol by underage participants. They raised issues of concern regarding transport arrangements upon conclusion of the party. Although denied, there were issues raised about the advertisement of the party on the Internet. g) Despite the warnings, the party went ahead. h) On arriving at the community hall police observed approximately 180 young people at the location. Most of the young people were consuming alcohol and walking in and out of the hall. i) Police spoke to the applicant at the entrance of the hall, but moved away a short distance due to the level of music. j) Police spoke with the applicant about the lack of supervision regarding alcohol and his lack of responsibility given that there were underage drinkers in the hall. k) The applicant said, "You can go in there and check if you want but I can tell you, it won't be good for you coppers." l) Police did reinforce the responsibilities of the applicant regarding the party and the safety of guests, in particular intoxicated young persons. m) The applicant said, “I can't stop them. It's not my fault. I told you coppers to stay away from here but no, you cunts had to come down here. You can get fucked. You will not tell me what to do”. n) Police informed the applicant that his attitude was different during the earlier private meeting and his attitude was disappointing on the night. o) With the aggressive attitude and gestures adopted by the applicant, another police officer placed a hand on the applicant and then moved him away from her colleague. The applicant then said, "You can get fucked too. Don't touch me." p) The second officer said, "Please don't point your finger like that." The applicant then said to the second officer, "Who the fuck are you? You can get fucked". q) The second officer introduced herself and said she was trying to establish if a courtesy bus that was to be organised was still in place. The applicant responded by saying words to the effect, "I don't have to tell you a fucking thing. Just get fucked." r) Police continued to speak with the applicant about his obligations and responsibilities. The applicant continued to point his finger at police -- 5 of 10 -- 6 yelling, "You can all get fucked. I don't have to listen to what you fucking tell me, I'll do what I want." s) The applicant’s wife then came over and spoke with police. She told police they were doing their best to control the party and the alcohol that was present. t) During this time, the applicant continued to yell abusively towards the police. u) The second police officer advised the applicant that his language was offensive and inappropriate and if he continued he would be committing an offence. v) The applicant said, "Don't you even fucking tell me what to do cunt. Don't even talk to me." The applicant then started to wave his hands around. w) A young boy walked up to the applicant and said ‘Dad’ to which the applicant replied, "Shut up son and fuck off." x) Police warned the applicant that his language and behaviour was inappropriate towards police and he was warned that if his behaviour continued he would go to court. y) The applicant replied, "Go on then, fucking charge me. I don't give a fuck what you cunts do. Arrest me, go on then." The applicant continued to wave his arms around, walk back and forward towards police and speak offensively. Police formed the view that the applicant was showing off to the audience who had gathered. z) Police advised the applicant that they would summons him to court if his offensive behaviour and language continued. The applicant replied, "I don't give a fuck. I've spoken to my solicitor about this and you cunts don’t have the right to be here. Go on then arrest me." aa) Police walked away from the applicant, who continued to yell. bb) By this time, approximately 250 people were in the location. cc) The applicant had been consuming alcohol since approximately 6:30pm. At the time of the incident, he was drinking a can of ‘Jim Beam and cola’. dd) There were a number of young people at the party, including a large number of teenagers. At the conclusion of the party at 12:20am, the young people moved onto the street and a large group (approximately 200) remained unable to leave the area due to lack of transportation. Numerous fights broke out between intoxicated youth, where police had to intervene. Several officers were the victims of assault during the incident. One 15-year-old female was conveyed by ambulance to hospital suffering alcohol poisoning. Police detained several other young people. ee) The police spoke to the applicant regarding the unacceptable incident. The police said the incident directly related to the applicant allowing young people to consume alcohol on the premises. The applicant was -- 6 of 10 -- 7 again extremely aggressive stating, "You’se can all get fucked. I can do what I want; I have spoken with my solicitor. This is not my fault. Fuck off cunts." ff) When informed they would speak to him to a later time. The applicant yelled, "I don't give a fuck. You can talk to my fucking solicitor." gg) When the police officer walked away, the applicant commenced yelling at the remaining youth, "Get into them guys. Don't put up with their shit. Flog the cunts." hh) Shortly after this, the applicant approached another police officer and stated he was calling his friends from the outlaw motorcycle group "Nomads" to have them attend and deal with police. [12] The first incident occurred on 2 August 2008. The second incident occurred on 25 October 2008. These events were some time ago, however both demonstrated elements of extremely poor judgement. Both were near to, and to some degree affected, children6. The second event is particularly of concern. The applicant had not learned anything from the earlier incident. The applicant chose to ignore police warnings, had failed to take appropriate preparatory action and he was drinking when in charge of this event. It is particularly of concern that he acted aggressively in front of children towards police and in fact went so far as to incite violence by children against police. [13] Neither incident was spontaneous. Both involved a considerable degree of planning. That is an aggravating circumstance. [14] The applicant's wife presented written material minimising the applicant's actions in relation to both events. She also gave evidence at the hearing. In relation to the first incident, she says her sister invited them into her home. No one ever never asked them to leave. That is not consistent with the conviction. In relation to the second event (the daughter's birthday party), she says that she was the one who registered the party. She said that she could not cancel the party because "we would lose thousands of dollars in deposits"7. She said that there was no underage drinking. She says the police created an issue. She says, "Until the police forced the guests to leave all were content to wait for transport home8". [15] I find the evidence of the applicant’s wife is not consistent with the applicant's criminal history. I am concerned that economic factors prevailed over issues to do with the children's welfare. [16] The relevant function of the tribunal is to undertake an analysis and evaluation of risk9. [17] At the hearing, the applicant said that he had changed. 6 Section 226(2)(a) of the Working with Children (Risk Management and Screening) Act 2000 provides that regard must be had for this fact. 7 Undated written statement by the applicant’s wife presented to PSBA. 8 Ibid. 9 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 at para 58. -- 7 of 10 -- 8 [18] By way of background, the applicant has been married for nearly 20 years and has children and grandchildren. He has worked in a variety of fields, mostly with his hands. He says that he has cared for his children, taking an interest in their education. He has helped to form an aboriginal dance group. He has helped them in other ways, such as with schooling and teaching them skills, such as fishing. He has helped other children in need. He qualified as a teacher's aide after suffering a back injury. He was on a disability pension for some time. He moved to Queensland for a new start and a better life in 2010. He worked when he could. With his family, he cared for a young child as foster carers. That stopped after he received a negative notice with respect to his blue card application. [19] He says he has learned a lot from his mistakes in the past. He would change a lot in his past if he could. He says that in relation to the second incident: Looking back, I know that the night of my daughter’s party I should not have been drinking. I know my actions were inappropriate and uncalled for as I was there to supervise and be an appropriate role model. I am extremely sorry for my actions. I know I can't change them but I have learnt from them so I have been able to become a good role model. [20] The applicant produced a number of written statements in support. Referees speak of his ability to care for children and his parenting skills. With the exception of his wife, the referees do not refer to the two incidents, which are of concern to the tribunal. I therefore give limited weight to the references in this case. [21] The applicant acknowledged that he has engaged in problematic consumption of alcohol for a significant period. The consumption of alcohol has been a major influence in most of his offending10. [22] The applicant has sought professional assistance. He consulted his general practitioner, Dr Jayant Karambhe. Dr Karambhe presented a report dated 18 November, 2014: ABM has been under my treatment since 17/05/2013. I have read the report from the children's commission regarding the negative notice for ABM. In my professional opinion (based on my interaction with him since 17/05/2013), I can see no reason why ABM should not be allowed to work with children, due to the fact that ABM has his anxiety and stress under control with antidepressant Pristiq. ABM has also been abstaining from alcohol. I believe ABM is quite capable of working with children. [23] The applicant has also consulted Chesney Penfold, a registered psychologist. His GP referred him to the psychologist. The psychologist says that he ‘does not see alcohol issues as standing in his way of being a competent foster carer’11. [24] I am of the view that while the adult has taken laudable steps to deal with his problematic consumption of alcohol he is still in the early age stages of treatment. Given the extent of his alcohol abuse in the past, the nature of his behaviour when intoxicated and the fact that he has previously 10 Written statement by the applicant filed in the tribunal on 6 November, 2014. 11 Written report by Chesney Penfold dated the 5 February, 2015. -- 8 of 10 -- 9 undergone periods of abstinence followed by a relapse, I have concerns about the applicant's ability to manage his alcohol issues into the future. [25] The psychologist and doctor have provided simple statements that provide support to the applicant. However, I do not see strong implementation of appropriate strategies through long-term treatment or rehabilitation. A recurring theme with the applicant’s alcohol consumption is a relapse in circumstances where he is under great stress. I note also the applicant does tend to minimise his behaviour and defer blame to others. He transfers blame to complainants and police. While the applicant may have gained some insight through the benefit of hindsight, I am not satisfied that he has yet demonstrated a sufficient level of insight into his behaviour to the extent that he has mitigated my concerns. [26] The rules of evidence do not bind the tribunal. I may consider all material presented prior to and at the hearing. I do so. [27] The applicant seeks to review the decision made by the PSBA to issue a negative notice. To conclude as it did, the PSBA found the case to be exceptional. [28] The primary question for me to determine in this case, on the balance of probabilities, is whether the applicant’s position is exceptional. If it is exceptional, I should reject his application and issue a negative notice. If the applicant’s application is not exceptional, I am required to issue a positive notice. That would entitle him to hold a blue card. [29] In determining, the meaning of ‘exceptional’ in the context of these cases, well-known authorities and well-established principles provide guidance. [30] In Commissioner for Children and Young People and Child Guardian v Maher and anor (2004) QCA 492 the Court of Appeal made the position clear. The court stated, “It would be most unwise to lay down any general rule with regard to what is an exceptional case. (...) All these matters are matters of discretion12”. [31] There is no special meaning is to be attributed to the word ‘exceptional’. In Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 the QCAT appeal tribunal said at [33]: We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [32] Accordingly, in these proceedings I have a wide discretion. I must consider the case and make a determination by looking at the whole of the circumstances. It is a matter of fact and degree. I must consider the legislative intention of the Act in coming to my decision13. 12 Per Phillipides J. 13 EAA, Re [2008] QCST 8 at paragraph 51. -- 9 of 10 -- 10 [33] In TAA, Re [2006] QCST 11 it was stated in the former Children Services Tribunal at paragraph 97: The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children. [34] I am not satisfied that the applicant has yet demonstrated that he has developed insight, skills and strategies to manage his consumption of alcohol on a long-term basis. [35] I find that the applicant attempted to minimise his actions throughout the hearing. I am not satisfied that the applicant has appropriately identified long-term and short-term risk factors involving children. I am concerned that his past behaviours, particularly in relation to consumption of alcohol, may continue. [36] I find that this is an exceptional case. The protective factors do not outweigh the negative factors in this case. It would not be in the best interest of children for a positive notice to issue. [37] An option available to the tribunal for the review of a reviewable decision is to confirm the decision14. I do so. [38] The tribunal confirms the decision of the chief executive officer of the Public Safety Business Agency to issue ABM with a negative notice. [39] On its own initiative, the tribunal is able to make a non-publication order15. I choose to de-identify this decision on the basis that identification of the applicant identifies, or is likely to lead to the identification of, a child who has been harmed by a parent16. The tribunal is satisfied that it is contrary to the public interest to release information identifying information regarding the applicant and his family. The requirements of openness and accountability are maintained with this non-publication order. Public interest is satisfied by permitting public access to details of the decision and reasoning behind it. 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24. 15 Ibid, s 66. 16 Child Protection Act 1999 (Qld) s 189(2)(a). -- 10 of 10 --