Diefenbach v Commissioner for Children and Young People and Child Guardian [2014] QCAT 382

CITATION: Diefenbach v Commissioner for Children and Young People and Child Guardian [2014] QCAT 382 PARTIES: Kevin William Diefenbach (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML197-13 MATTER TYPE: Childrens matter HEARING DATE: 5 May 2014 HEARD AT: Cairns DECISION OF: Member Quinlivan DELIVERED ON: 5 August 2014 ORDERS MADE: 1. The application for review is dismissed and the decision of the Commissioner made on 13 September 2013 to issue a negative notice to the applicant is confirmed. CATCHWORDS: Blue card eligibility, role of Commissioner Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) APPEARANCES and REPRESENTATION (if any): APPLICANT: Kevin Diefenbach RESPONDENT: Craig Capper representing Commissioner for Children and Young People and Child Guardian REASONS FOR DECISION Introduction -- 1 of 11 -- 2 [1] Kevin Diefenbach is a 43-year-old man. He has lived in Cairns for over 10 years. He has a wife and 2 children. His wife is an experienced primary school teacher and in his view she would not have married him, if he was involved in drugs or if she thought he was an unsafe person to have around children. [2] On 18 July 2013 Mr. Diefenbach made an application to the Commissioner for Children and Young People and Child Guardian (the Commissioner) to cancel a negative notice issued to him on 22 February 2011. [3] The Commissioner conducted his usual inquiries and was advised by the Queensland Police Service of relevant information relating to the applicant. The Commissioner invited the applicant to make submissions about why he should be granted a Blue card and after considering his submissions, the Commissioner advised the applicant on 13 September 2013 that his application had been refused. [4] On 10 October 2013 the applicant lodged an application to review the Commissioner's decision. In support of his application he says that the Commissioner has basically told him that he lied in his submissions. The applicant then detailed a number of examples of where he says that the Commissioner made statements that were untrue. [5] The applicant also disagreed with the Commissioner regarding the dates of his alleged offending and convictions. He says that his criminal history spans a period of about five years and does not include any sexual offences or other offences against children. He says his last offence was 15 years ago and he has `been “duly and deservedly” punished by the Courts for all of the offences he has committed. He contends that his punishment should be long finished but it seems that the Commissioner is now extending it, over a decade and a half later. [6] The applicant says there is no evidence and never has been even a suggestion that he would harm a child and the Commissioner seems to be discriminating against him because he has a criminal history from his 20s but that he is now in his 40s. He says that he wants the decision of the Commissioner overturned and he wants to be issued with a Blue card. The legal position? [7] The Commissioner for Children and Young People and Child Guardian Act 2000 (CCYPCG) was designed to promote and protect the rights, interests and well being of children in Queensland. The current legislation is now called the Working with Children (Risk Management and Screening) Act 2000. When administering the Act the guiding principle and the focus in this application is that the welfare and best interests of children are the paramount consideration. [8] The task for the Tribunal is set out in section 221(2) of the CCYPCG Act. If the Tribunal, standing in the shoes of the Commissioner, is satisfied that it -- 2 of 11 -- 3 is an “exceptional case” in which it would not be in the best interests of children to issue a positive notice, the Tribunal must issue a negative notice to the applicant. [9] Where a person has been charged with or convicted of an offence other than a serious offence, the Tribunal must issue a positive notice unless it is satisfied that an exceptional case exists. In this case the applicant has been convicted of offences that are not defined as serious offences. [10] The Act does not define the meaning of exceptional case. It has previously been determined by the Tribunal that it is a matter of discretion and should not be confined to “any general rule”. The Appeal Tribunal in considering the decision in CCYPCG v Maher1 stated: “The proper approach to it is that… adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation”.2 [11] However, in determining whether this is an exceptional case, Section 226(2) of the Act provides that where the decision maker is aware that a person has been convicted of or charged with an offence the Tribunal must have regard to the following factors: (a) (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 commissioner under section 318 or 319; (c) Any report about the person’s mental health given to the commissioner under section 335; (d) any information about the person given to the commissioner under section 337 (from the Mental Health Court) or 338 (from the Mental Health Review Tribunal); 1 [2004] QCA 492 at [28] 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33]. -- 3 of 11 -- 4 (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. What happened in this case? [12] As part of the screening process the Commissioner identified that the applicant's criminal history spanned a seven-year period between 1994 and 2001 during which time he was convicted of 22 separate offences, in addition to five other charges that did not proceed to conviction. [13] At the hearing the Tribunal was provided with copies of documentation relating to the applicant's criminal activities and of the various court proceedings that flowed from them. It is apparent that the applicant's criminal offending commenced towards the end of 1993 or early 1994 and continued until at least November 1998. The applicant’s last appearance in Court appears to have been in May 2001. [14] The applicant has 9 convictions for drug related offences and further convictions related to violence for which he received a range of penalties including fines and significant terms of imprisonment. In particular, in July 1996 he was convicted of possession of a dangerous drug exceeding 2 gms and sentenced to 7 years 6 months imprisonment. At the same time he was convicted of possession of a dangerous drug exceeding 500 g and on each charge a conviction was recorded and he was imprisoned for 4 years. The terms of imprisonment were to be served concurrently. Subsequently the applicant appealed his convictions with the result that a sentence of 2 years imprisonment was imposed. [15] In October 1999 the applicant was convicted of deprivation of liberty and 4 assaults occasioning bodily harm. On all charges the applicant was convicted and sentenced to 18 months imprisonment to be suspended after serving 6 months for a period of 3 years. In March 2001 the applicant was convicted of possessing dangerous drugs specified in schedule 2 and 3 and imprisoned for 12 months to be served by way of an intensive correction of order. At that time a special condition of the order was that the applicant submit to any medical, psychiatric or psychological treatment considered to be necessary. [16] In May 2001 the applicant was convicted of charges of common assault unlawful use of motor vehicles and deprivation of liberty and sentenced to imprisonment on each charge for 6 months to be suspended for 18 months. [17] The Commissioner emphasises that the applicant’s drug offending included possession of various quantities of dangerous drugs including 1.5kgs of cannabis and 283.5gms of methyl amphetamine and other chemicals and equipment associated with the production of dangerous drugs. The Commissioner submits that when the sentence was appealed, it was noted by the Court that “…the amount of cannabis was substantial, -- 4 of 11 -- 5 it was plainly being used in front of young children and [the applicant] by his conduct had indicated a complete lack of remorse3”. [18] The Commissioner contends that in relation to the incident in July 1998 the applicant subjected his former de facto to a prolonged and violent attack including repeatedly punching her to the face and head whilst using threatening language including telling her that “she didn't deserve to live”. The applicant was noted to have been adversely affected by dangerous drugs during the course of this incident. [19] The Commissioner points out that the applicant was convicted of 4 counts of assault occasioning bodily harm and deprivation of liberty arising from this single event and submits that this shows the prolonged and unrelenting nature of the attack on his former partner. [20] Further the Commissioner submits that despite the applicant speaking to police in September 1998 and reportedly expressing his shame and sorrow for his earlier actions towards his former partner, he engaged in further assaults upon the same person and again deprived her of her liberty 9 weeks later in November 1998. Again the Commissioner points out that it was noted that the applicant's conduct was related to him having administered and been under the influence of dangerous drugs at the time. The Applicant’s case. [21] In June 2013 the applicant wrote to the Commissioner and said that he had applied for a Blue card the previous year and was told he needed to write a letter explaining how his lifestyle had changed over the last 20 years. He described himself as an honest reliable hard-working father of two with a wife and a house mortgage that they had had for over 8 years. He said that he was a plasterer by trade and worked as a subcontractor in this industry for over 20 years. [22] He said that he was active in his children's school activities and outside of school activities. He described his family as very social and that there were always kids over at their house. He claimed that all of his friends and children's friends trusted him and often commented on how good he is with children. He said that he and his wife were looking at having some Japanese students come to their house for a Homestay through his wife's school and that was why he had applied for a Blue card. He said that he could list many people who would be happy to be a referee for him. [23] In support of his application, the applicant presented the following evidence:  A Life Story dated 10 December 2013; 3 R v Diefenbach [1997] QCA 60 penultimate paragraph. -- 5 of 11 -- 6  A Response to the Commissioners Reasons dated 10 December 2013;  A letter to the Commissioner dated 17 June 2013  A letter to the Tribunal dated March 2014; and  A Reference dated 16 September 2013 from the Vice President of a Junior Rugby League club regarding his involvement with that sport. [24] At the hearing, the applicant advised the Tribunal that he did not propose to call any supporting witnesses or provide any other corroborative evidence. [25] In his Life Story the applicant described an early childhood where he lived alternatively with his mother and grandparents and had no contact with his father. During his time at school he lived with his grandparents. He left home at a young age following a violent confrontation with an uncle who was of similar age to him. During his teenage years, he spent time living in shared units with other young people and was introduced to cannabis. [26] The applicant then describes his journey into drug use and his eventual charges and convictions and subsequent imprisonment for his drug use and associated behaviour. [27] However, the applicant submits that he has left that life behind. He says that he has not had anything to do with drugs for 15 years and certainly has no desire to involve himself with them in the future. [28] He says that his wife is a primary school teacher with around 20 years experience and she would certainly not be married to him if he was involved in drugs or if she thought he was an unsafe person to have around children. He says that his wife has encouraged him to help in his children's classes at school, which he has done and enjoyed on many occasions. [29] He says that his son plays Rugby League and that he is very involved with his son’s team and the club. In particular, he has Leaguesafe accreditation to enable him to care for the well being of players. He has also completed a Level I Trainer accreditation with the NRL, which enables him to serve as a first aid officer for the club. [30] The applicant expressed regret that he was ever involved with drugs and admitted to not being proud of the things he did while under the influence of drugs. He says that he bears no ill will to anyone who was involved in that part of his life and believes that he has certainly moved on and is now living a life that he can be proud of. [31] He takes issue with the Commissioner regarding the relevance of his offending and says that unlike the Commissioner he does not feel that that -- 6 of 11 -- 7 short period of his life should be in any way shaping his future. He admits that he committed crimes and has been deservedly punished for them. He says that he feels that the Commissioner is now extending his punishment into his future, some 15 years later. He says that he feels that he is being discriminated against because he has a criminal history. He points out that he could understand if they were offences that were defined as “serious” under the Act, but this is not the case. [32] In his response to the Commissioner’s Reasons the applicant argues strenuously that he is entitled to a Blue card because the only background considered by the Commissioner is a short five-year period of his life when he was a heavy drug user and that no consideration has been given to the last 15 years of his life. He submits that he has been able to conquer his serious drug addiction and live a normal life and that the decision of the Commissioner is quite unfair and somewhat discriminatory. [33] He asserts that the Reasons given by the Commissioner relate mostly to charges that he was not guilty of, yet the Commissioner has listed them as part of his Reasons. He says that he believes that the Parliament intended that the Commissioner should be able to consider charges, whether found guilty or not, to show a pattern of sexual perversion or paedophilia. He submits that there is certainly no evidence of that in his case. He argues that the Commissioner is in error in his Reasons. [34] The applicant points out that his criminal history does not contain a single conviction or even a single charge that is defined as “serious” under the Act. He claims that there are many people like him who have suffered the blight of drug addiction and are now going on to live normal lives as he is doing. [35] The applicant addresses the various matters outlined in the Commissioner’s Reasons in a very confrontational but unresponsive manner. In his conclusion, the applicant says that he completely disagrees with the Commissioner's decision. He says that the Commissioner has not provided any evidence to show that he is or is likely to be a harm to children. He asserts that there is not a single conviction for a “serious” offence in his record and not even a charge for a “serious” offence. [36] Despite addressing the matters set out in the Commissioner’s Reasons, the applicant fails to demonstrate any understanding of the role of the Commissioner and the purpose of these proceedings. He alleges that the Commissioner has not stated exactly what makes this an “exceptional” case. [37] The applicant says that the Commissioner has not provided any evidence to show that the applicant is likely to harm a child because quite simply there is none. He claims that the Commissioner's Reasons are full of untruths and unsubstantiated allegations. He emphasises that the amount of untruths and unsubstantiated allegations contained in the Commissioner’s Reasons is quite high - “Higher in fact than one could expect from a reasonable person” -- 7 of 11 -- 8 The outcome… [38] The applicant’s oral evidence involved an examination of the various statements that he presented. His evidence was characterised by a level of honesty but little acceptance of his responsibility for his behaviour. The Tribunal formed the view that the applicant was rationalizing his behaviour and on occasions fashioning his evidence to support his position. He attempted to distinguish the various findings of the Courts where he had been sentenced and he criticized the Judicial Officers for comments, which they made in their decisions. [39] He now seeks to be judged as the person he is today. However he provided only one piece of independent evidence (a short reference) in support of his application. He said that he decided to keep his previous behaviour in the past and not involve others in his current application. [40] Consequently, in the course of his evidence he was forced to resile from many of the statements contained in his material. Unfortunately he was unable to provide any corroboration for the evidence that he gave. The entirety of his application was focussed on his perception that he is being punished for his previous poor behaviour. At no time, did he positively acknowledge the role of the Commissioner in addressing the best interests of children. [41] The Applicant demonstrated clearly that he believed that he was entitled to a Blue card. However, the over-arching issue in this case was summed up succinctly by the Commissioner in his Reasons at the end of paragraph 7.9.2 where he says – “while it is favourable that the applicant attended counselling in 1999 and successfully completed an intensive correction order in 2002, his history of drug dependence, violent behaviour and mental health concerns continue to be significant risk factors in my assessment of the applicant's eligibility to work with children and young people. Given the applicant’s failure to demonstrate any insight into his offending history and associated drug use, there is insufficient evidence before me to be satisfied that the applicant has addressed the triggers for his offending behaviour such that he now has the capacity to safeguard the best interests of children and young people placed in his care”. [42] In relation to this assessment, the applicant strongly argued that the Commissioner had used his own letter dated 17 June 2013 against him. He appeared to misunderstand that his failure to provide independent evidence in relation to the serious matters raised by the Commissioner meant that his statements alone would only attract limited weight. He continued to accuse the Commissioner of making false statements, but did not provide any evidence to demonstrate what the correct position was. As outlined above, the applicant had to concede on a number of occasions during his oral evidence that the information he had provided was at best minimising or at worst misleading. [43] The Tribunal accepts that the applicant has done much in the last 15 years to turn his life around. It appears that he has not been involved in -- 8 of 11 -- 9 any criminal activities during that time that have come to the attention of authorities. He has a wife and two children and stable employment. He is actively involved in his children's school and other activities. He says that he has positive interactions with other children and families and gets positive feedback from other parents when other children attend his home to play with his own children. However there is no supporting evidence in relation to any of these matters. [44] The Commissioner points out that there are some significant risk factors that arise from the material before the Tribunal. The applicant has provided no evidence to the Tribunal that he has any appreciation of the effect that his drug related behaviour might have had on the community and children in the past. [45] The Commissioner submits that despite the applicant’s denials, there is evidence to suggest that in the past he may have used dangerous drugs in front of children. He makes no acknowledgement that he understands that such behaviour can have significant harmful long-term effects on children. Rather, the Tribunal notes that in paragraph 7.4 of his own Response to the Commissioner’s Reasons, the applicant acknowledges that his previous de facto’s children were exposed to the use of cannabis by her while he resided with them and then proceeds to trivialize the situation regarding his own involvement. He accuses the Commissioner of very flawed logic and a stretch of the imagination. The Commissioner contends that this is particularly concerning given that the applicant seeks to have young people engaged in Homestay activities with his family. [46] The Commissioner expresses ongoing concern that the applicant was a long-standing user of cannabis before commencing to use and manufacture methamphetamines. The Commissioner points out that the applicant admits commencing drug use in his teens and becoming a regular cannabis user by the time he was 21 years old. He was later convicted of numerous drug offences and violent offences (which he attributes to drug use] until the age of about 27 years. [47] The only evidence that the Tribunal has regarding the applicant's submission that he has stopped using drugs is his own assertions. The Commissioner points out that there is no corroborative evidence of the applicant participating in any drug rehabilitation programs, counselling or other preventative programs during his period of rehabilitation. [48] The Commissioner argues that the absence of any criminal convictions in the last 15 years to support the applicant's contention that he has, in fact, ceased drug use is not conclusive. The Commissioner submits that this is demonstrated by the applicant's admission that he was using cannabis from his teenage years and had become a regular user by the age of 21 despite his first criminal charge occurring when he was 23 years old. Further the Commissioner points out that there is evidence of the applicant engaging in the manufacture of methamphetamines following his release from custody in 1998, although he has not been charged or convicted of any offences arising from this conduct. -- 9 of 11 -- 10 [49] The Commissioner submits that the applicant has consistently failed to acknowledge the seriousness of his offending behaviour. The applicant throughout his written material and in his oral evidence has attempted to minimize not only the seriousness of his offending but also the penalties, which were imposed and the circumstances surrounding his offences. He continues to challenge the details of the findings made by the various Courts. [50] The applicant also makes serious allegations of police corruption, misuse of prosecutorial authorities and illegal activities in bringing charges against him for conduct that he readily admits he engaged in. He does this in the context of an application where he also criticises the role of the Commissioner in determining whether it is in the best interests of children for him to hold a Blue card. [51] The Commissioner agrees with the applicant's observation that the seriousness of his offending has not diminished over time. The Commissioner says that while the passage of time does not reduce the seriousness of the offending and does not establish an exceptional case, of itself, the passage of time coupled with the development and implementation of appropriate protective behaviours and strategies and development of appropriate insight may be protective factors that would establish that this is not an exceptional case. [52] However the Commissioner also submits that the absence of these protective factors increases the risk to children and may establish an exceptional case. The Commissioner points out that a positive notice and Blue card is fully transferable and unconditional. This would mean that the applicant could engage in any regulated area of child related employment which, he says, constitutes a significant risk factor in this case, particularly given the significant levels of domestic violence and his admitted addiction to dangerous drugs in the absence of any evidence of rehabilitative activities undertaken. Decision [53] The Tribunal has carefully considered the evidence provided by the applicant and finds that the explanations he has provided, consist primarily of minimizing and blaming others for his situation. The Tribunal finds that the applicant fails to demonstrate any understanding of the process and the need for him satisfy the Tribunal that this is not an exceptional case. He fails to acknowledge that these are matters that the Commissioner must take into account under the legislation. [54] The applicant did not call any witnesses in support of his application. He did not provide any reports or statements as recommended in the Directions made by the Tribunal on 13 November 2013 to corroborate his own evidence. The only evidence in support of his application was his own. The reference that he provided added no value to his application and merely confirmed his involvement with the Rugby Leagues Club. -- 10 of 11 -- 11 [55] The legislation emphasizes that the approach of the Tribunal in determining whether an exceptional case exists is discretionary rather than prescriptive. The weight that the Tribunal can give to the evidence of the applicant is limited by his total failure to provide any other supporting material. Rather than attempting to justify his position the applicant would do well to reflect on his situation and attempt to demonstrate to the Tribunal that he understands what he has done and what steps he has taken to address his actions. [56] The Tribunal accepts the Commissioner’s submissions that the risk factors in this case remain significant and there is nothing in the evidence to demonstrate that the applicant has adequately addressed them. The protective factors identified are largely unconfirmed. [57] The Tribunal is not satisfied that the applicant has demonstrated any insight into the seriousness of his past actions. He appears unwilling to acknowledge that this application is about the best interests of children and not any detriment or benefit he might experience. [58] The Tribunal accepts that he has a supportive family and friends but without hearing from them the Tribunal cannot be satisfied that they would support his current application. The Tribunal accepts that there is no evidence to contradict his assertions that he is in a stable marriage and has a history of full employment and contribution to the community. [59] The fact remains that a Blue card is transferable. The Tribunal accepts the submission of the Commissioner that this would mean that the applicant could engage in any regulated area of child related employment, which constitutes a significant risk factor in this case. The Tribunal finds that the applicant has not adequately addressed the risk factors identified in this case. [60] The Tribunal has considered all of the available evidence in the context of the relevant provisions of the legislation and is satisfied on the balance of probabilities that this is an exceptional case in which it is not in the best interests of children for a positive notice to issue. [61] The Tribunal dismisses the application for review and confirms the decision of the Commissioner made on 13 September 2013 to issue a negative notice to the applicant. -- 11 of 11 --