CON v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 395

CITATION: CON v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 395 PARTIES: CON (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML203-13 MATTER TYPE: Childrens matters HEARING DATE: 19 May 2014 HEARD AT: Brisbane DECISION OF: Member Hanly DELIVERED ON: 31 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive to issue a negative notice to CON is set aside. 2. The Chief Executive is to issue a positive notice and Blue Card to CON. 3. The Tribunal prohibits the publication of any information which identifies, or could lead to the identification of a child, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: BLUE CARD – ISSUE OF NEGATIVE NOTICE – suitability to work with children – where no serious offences – whether applicant’s case is exceptional Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6(1), 155, 221, 226, 353 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20(1), 66 -- 1 of 8 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: CON represented by Ms K F Clark of Robertson O’Gorman, Solicitors RESPONDENT: The Chief Executive was represented by Mr C Capper REASONS FOR DECISION [1] CON applied for a Blue Card in March 2013 to enable him to continue his work as an IT administrator at a Brisbane school. His application was refused on 9 October 2013, and on 18 October 2013 he applied to the Tribunal for a review of the Chief Executive’s decision. He has complied with the necessary time limits in filing his application. [2] The Tribunal must consider the matter afresh, and make the correct and preferable decision based on all of the evidence before it.1 The Tribunal must apply the same legislation as that applied by the Chief Executive.2 [3] CON has convictions for assault, arising out of an incident involving his then wife, Ms IT, in 2005. There were several additional charges laid against him which were later discontinued. The offences for which he has been convicted, and the other offences with which he was charged, are not serious offences, as defined in the Act. [4] CON was also the respondent to two Domestic and Family Violence orders made on a without admissions basis by consent. These orders required him to be of good behaviour towards his wife and not to commit any acts of domestic violence towards her. CON did not breach those orders, and the second order was revoked in January 2009 upon his wife’s application. [5] Accordingly, CON must be issued with a positive notice unless the Tribunal is satisfied that his is an exceptional case in which it would not be in the best interests of children to grant his application. [6] The Act does not define the term “exceptional case”. However, the term has been considered in many cases, and the Tribunal gains guidance about the meaning of the term from the comments made by Judges in those cases. What constitutes an exceptional case is a question of fact and degree. It must be such as to ‘take it out and beyond the ordinary circumstances expected to occur’3 or be ‘…of the nature of or forming an exception; out of the enduring cause, unusual, special’4. [7] CON was born in Turkey. His childhood was uneventful, and he lived with his parents and siblings in a stable environment. He successfully 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20(1). 2 Ibid s 19. 3 In the Marriage of Sandrk (1991) 104 FLR 394 at 399 – 400. 4 Schwerin v Equal Opportunity Board (1994) 2VR 279 at 287 – 288. -- 2 of 8 -- 3 completed his secondary education, and then undertook tertiary studies, receiving a degree in Technical Sciences (Electric) from Istanbul University in 2000. CON also completed mandatory training and service in the Turkish army for 18 months. When not engaged in military activities, he was gainfully employed in the civilian sector. In 1997 he obtained a position as a security officer working in public relations with a Turkish National TV and newspaper company. He rose through the ranks, and in 2000, he transferred to the IT department of the same company. [8] CON migrated to Australia in October 2004. It was the first time that he had travelled outside of Turkey. He was then aged 29 years. He had married Ms IT in Turkey in mid-2004. She was his first romantic interest. [9] CON’s arrival in Australia heralded a time of significant adjustment for him. There were enormous cultural and societal changes. It is not necessary to set out here the detail provided by CON in his personal history (Exhibit 1). Suffice to say, his life was stressful, and he was feeling isolated from his family in Turkey. He described himself as immature in terms of his emotions. He was totally reliant on Ms IT because of his limited ability to converse in and to understand English. [10] Not long after his arrival in Australia, Ms IT gave birth to their only son. Ms IT experienced quite severe and prolonged health problems following the birth. Ms IT already had two children from a previous relationship. CON was therefore the father to three children, a role for which he candidly admitted he was not well prepared. He did however try to learn quickly. Nonetheless, it was a difficult time. [11] CON was the provider for the family, but his employment prospects were limited. He also needed to provide support to his family in Turkey, because they had sold their family home to assist him with his relocation to Australia. CON was not entitled to Centrelink support for two years after arriving in Australia, so he turned his hand to various ways of earning income, described in Exhibit 1, but his financial situation was fragile. All in all, 2005 was not an easy year for CON. [12] It culminated in the incident on 27 December 2005 which gave rise to the offences for which he was convicted. CON pleaded guilty to three counts of common assault. The Court imposed a fine of $360.00. No conviction was recorded. Other charges arising from the same incident were discontinued. [13] CON is very remorseful for the incident, which he acknowledges would have been very frightening for his wife and for any children who witnessed it. Considerable discussion took place at the hearing about the events of that day. Whilst there is some disparity as to the precise nature of CON’s actions, it is evident, and the Tribunal so finds, that CON’s actions were aggressive, violent and totally unacceptable. Of course, the Tribunal does not go behind the conviction that has been recorded against CON, but for the purposes of weighing up risk and protective factors, to which reference -- 3 of 8 -- 4 will be made later in these reasons, the Tribunal must examine the events of that day. [14] CON acknowledged that his actions were irrational and inappropriate. He stated that his wife would have been scared, not least because his physical size and aggressive outburst would have intimidated her. CON also acknowledged that he could have inadvertently hurt his baby son, and understood the risks associated with such volatile situations. He regretted that his behaviour that day impacted further afield than the immediate participants, extending to his neighbours and their children, and to his step-children. For all of that he felt ashamed. [15] In relation to the domestic and family violence orders, it was noted that there had been no breach of those, and the second order was ultimately revoked upon his wife’s application. In relation to the second order, there was conflicting evidence as to the foundation for the order. It was common ground that CON and Ms IT argued. On CON’s version, the argument was about property settlement and his being permitted to take his son overseas to visit CON’s family, whilst Ms IT contended that it was an argument over money. [16] CON and Dr Noor both gave evidence that Ms IT admitted to them, after making the complaint, that she had fabricated some of the more serious allegations. At the hearing Ms IT, although very evasive in this aspect of her evidence, did not deny that she had made false allegations. [17] Dr Noor told the Tribunal that truth is a fundamental tenet of Islam. He is a well respected leader within his community. He is of the Muslim faith. He expressed the view that Ms IT probably felt remorseful after the 2008 complaint and did not want to make any more statements in relation to it. [18] The Tribunal accepts the evidence of CON and Dr Noor in relation to the previous admissions by Ms IT that she had fabricated certain of the allegations made against CON. [19] Whilst CON denied that he had been violent or had threatened violence to Ms IT in 2008, he freely admitted that they had argued, and he once again acknowledged that his behaviour was inappropriate and that he was remorseful. [20] Dr Noor provided further evidence5 in relation to CON’s behaviour in 2005 and the events of 2008. His summation of the 2005 events was that it was entirely out of character for CON; that he is confident that it would never happen again, and that, in his view, CON does not pose a risk to children. [21] Dr Noor identified several protective factors pertaining to CON: his maturity compared with 2005; his willingness to seek counsel from Dr Noor; his ability to deal with stress differently now; his preparedness to speak openly about his emotions and feelings with his close friends; his 5 Statements dated 14 February 2014 and 27 March 2014 – Exhibits 7 and 8. -- 4 of 8 -- 5 strong work ethic; his assimilation into Australian culture; his calm and patient demeanour. [22] As to the 2008 events, Dr Noor gave significant detail of discussions that he had with Ms IT; the admissions she made to him; his advice to her of the seriousness of the matter, not least within the context of Islamic beliefs; and the manner in which the matter was ultimately disposed of. [23] The Tribunal also heard evidence from Ian Campbell, Psychologist. In the first of two reports,6 Mr Campbell expressed the view that CON ‘displayed an acceptable level of understanding about the impact his behaviour had on others. He contrasted his behaviour to those behaviours of his own parents. His skill to differentiate his thoughts and behaviours was evidence of a protector (sic) factor against future risk’. [24] Mr Campbell also noted that the risk factors that were present at the time of the assaults are not apparent in CON’s current lifestyle. He considered that if such stressors were to re-emerge then CON had a range of protective factors that were not present in 2005, such as employment, a peer group, familiarity with the English language and maturity. Furthermore, Mr Campbell considered that the negative impacts of CON’s earlier behaviours appeared to have been experiences from which he had grown. [25] Mr Campbell also noted that CON and Ms IT now have equal parental responsibility for their son, in respect of whom time is organised by consent. In addition, there have been no independent or substantiated reports of CON being violent to a child. Mr Campbell concluded that it was therefore very unlikely that CON would represent an unacceptable risk to children. [26] In his second report,7 Mr Campbell discussed in detail the events surrounding the domestic violence orders. Mr Campbell concluded that the results of his initial assessment remained accurate and the inclusion of the DVO made in 2008 and revoked in 2009 did not increase his risk appraisal of CON in March 2014. [27] Mr Campbell further concluded that CON’s account of the situation was credible. He found no evidence to indicate in early 2014 that CON experiences mood instability that could be manifest in impulsivity. [28] In oral evidence, Mr Campbell described CON as genuine and conscientious. He said that he would assess CON as being someone who would seek out help if he needed it. When asked to detail risk and protective factors in relation to CON, Mr Campbell expanded his comments from his first written report in relation to protective factors, namely that CON has positive relationships with his peers and with Ms IT; has a good support network; has positive family connections; has 6 Report dated 20 February 2014 – Exhibit 4. 7 Report dated 31 March 2014 – Exhibit 5. -- 5 of 8 -- 6 employment; has maturity and would consult with others if he were to need advice. [29] Mr Campbell explained that risk factors would be if CON were to be in multiple intimate relationships; have a negative relationship with Ms IT; be intolerant of children; be abusive to children and others; have multiple domestic violence orders against him; be inconsistent in his dealings with Ms IT in relation to their son; be late for contact with his son, or fail to adhere to any contact/care arrangements. [30] Dealing with the potential identified risk factors, the Tribunal notes the evidence of Ms IT, who said that she and CON are now the best of friends, and she can rely on him for anything. She spoke of the assistance he provides to her by collecting the children from school, for which she is grateful now that she is undertaking university studies. Ms IT also stated that CON is teaching her daughter to drive. Overall, she said that he has changed a great deal. She describes him as calm and reliable. They share the care of their son on a 2/3 to 1/3 basis, with the larger share being provided by her. [31] Reflecting on the differences between CON as he presents today, and the way he was in 2005, Ms IT said that she considered that in 2005 there were cultural differences between them. She was raised in Australia by Turkish parents, so her upbringing was more westernised. When CON came to Australia after their marriage the biggest impediment to his integration was the language barrier, so he was heavily reliant on her. He had limited contact with his parents back in Turkey as it was too expensive to ring them very often, and even when he did do so, calls were of short duration, for the same reason. He had no employment, so he had to be creative in the way he supported the family. He bought second-hand computers, repaired them and then sold them on E-bay. He was a new father, but also had an instant family with her two children of her previous marriage. There was no financial support from her previous husband, and the children were in private schools, so the financial pressures were huge. Culturally, CON felt keenly his responsibility to support his family. [32] Ms IT said that the contrast with today could not be more stark. CON has many friends, who are supportive of him, and to whom he could turn for advice, should he need it. He has a good command of English and he has employment. His communication with his family in Turkey is regular and supportive, with advanced technology enabling this to occur without great cost, using Skype. [33] Ms IT spoke of the violent events in December 2005 and said that CON had apologised to her, and she had accepted that apology as genuine and sincere. She confirmed that CON was holding a knife at one stage, but she said that he did not lunge at her with it, nor was he waving it around. She confirmed that he had thrown the esky at the car, but said that it had all happened so quickly that it was really a bit of a blur. -- 6 of 8 -- 7 [34] In relation to the events that preceded the 2008 DVO, Ms IT said that she could not remember them precisely, but characterised them as a “money argument”. When invited to rate the 2005 incident and the 2008 incident on a scale of 10, she classified the 2005 incident as a 10, and the 2008 incident as a 3. [35] The Tribunal has had regard to the paramount principle concerning the welfare and best interests of children8 and the rights of children to protection from harm, and the promotion of their wellbeing.9 [36] The Tribunal has considered the relevant factors set out in the legislation10 and other matters pertaining to CON’s circumstances. [37] The Tribunal has weighed up the risk and protective factors applicable to CON. [38] The incident in 2005 involved violence and occurred in the presence of children. The incident in 2008, whilst not involving violence, was doubtless frightening for Ms IT. Apart from these two incidents, CON has no other criminal history and has not been the subject of any further protection orders. [39] CON demonstrated insight about the detrimental effect that his behaviour would have had on his son and the other children who may have witnessed the incident in 2005. He also recognised the effect of his behaviour on Ms IT, and other persons who may have been peripherally involved, such as his neighbours. [40] CON was genuinely remorseful for his actions. The most telling aspect of his remorse is that he has not repeated them. [41] Mr Campbell expressed the opinion that CON presents a low risk of offending and a low risk of causing harm to children. [42] The opinion of Mr Campbell is borne out by CON’s own actions since 2008. CON shares care of his son with Ms IT; he has a significant role in the lives of his son and his step-children; he demonstrates reliability in the tasks that he undertakes in this role; he is respectful of Ms IT and they have a solid relationship based on friendship and trust. [43] The positive changes in CON’s life are attested to by Ms IT, Dr Noor, Mr Campbell, and CON himself. He has gained maturity and acquired self-confidence; he has a good circle of supportive friends from whom he is not afraid to seek advice should he need it; he has a solid and supportive relationship with his family, with whom he communicates regularly; he is reliable and trustworthy in his interactions with Ms IT around the shared care of their son; he is willing to assist Ms IT in relation to her other children; he is a reliable and well regarded worker and he 8 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6. 9 Ibid s 155. 10 Ibid s 226. -- 7 of 8 -- 8 willingly volunteers his time to support his faith community when the need arises. [44] The Tribunal is satisfied that the protective factors in CON’s life significantly outweigh the risk factors, which the Tribunal accepts arose from behaviour that was situational, and was not a stable trait. [45] Accordingly, the Tribunal finds that CON’s is not an exceptional case in which it would not be in the best interests of children to grant his application. [46] The Tribunal’s order is that the decision of the Chief Executive to issue a negative notice is set aside, and a positive notice and blue card is to issue to CON. [47] The Tribunal is also satisfied that in order to protect the interests of any children identified in the proceedings a non-publication order11 should be made. The Tribunal orders accordingly. 11 QCAT Act s 66. -- 8 of 8 --