CL v Commissioner for Children and Young People and Child Guardian [2014] QCAT 358

CITATION: CL v Commissioner for Children and Young People and Child Guardian [2014] QCAT 358 PARTIES: CL (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML068-13 MATTER TYPE: Childrens matters HEARING DATE: 1 and 2 May 2014 HEARD AT: Toowoomba DECISION OF: Member Browne DELIVERED ON: 23 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 22 March 2013 to cancel the positive notice and issue a negative notice to the applicant is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant, the applicant’s wife and children and lay witnesses referred to in these proceedings. CATCHWORDS: CHILDRENS MATTERS – BLUE CARD REVIEW – where the applicant seeks a review of the Commissioner’s decision to cancel the positive notice and issue a negative notice – where conviction for criminal offence – whether exceptional case exists Commission for Children and Young People and Child Guardian Act 2000, ss 221, 226, 237 Queensland Civil and Administrative Tribunal Act 2009, ss 17, 24 -- 1 of 16 -- 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, cited FAA Re, (Unreported, Queensland Children Services Tribunal, Hon Robert Bulley, 31 July 2006), cited Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr CL RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms Louisa Keown, Solicitor (in-house) REASONS FOR DECISION [1] Mr CL requires a blue card to enable him to work as a nurse on clinical placement. [2] Prior to commencing nursing studies in July 2012, Mr CL worked with young people as a youth development officer for the cadet program at the SF School. He held a blue card from 2007 to 22 March 2013, being the date that he received notice of the Commissioner’s decision to cancel his positive notice and to issue a negative notice. [3] Prior to issuing a negative notice, the respondent decision maker was notified of changes to Mr CL’s criminal history on 10 September 2012. There were 7 offences identified relating to offending behaviour in the years 2005, 2007, 2010 and 2011. [4] The offending behaviour involved allegations of violent behaviour by Mr CL towards a child being his son and his ex-wife. [5] The Commissioner conducted a review or reassessment of Mr CL’s eligibility to hold a blue card after receiving an authorisation of blue card form from the University of Southern Queensland in relation to Mr CL’s nursing studies and clinical placement; and information from him about the offending behaviour. The Commissioner determined that the positive notice be cancelled and a negative notice issued. [6] Mr CL filed an application in the Queensland Civil and Administrative Tribunal to review the Commissioner’s decision to cancel his positive notice and issue a negative notice. -- 2 of 16 -- 3 [7] Mr CL pleaded guilty to 2 of the 7 charges before the District Court of Queensland on 9 September 2013. He was sentenced to a period of probation for 12 months with conditions, no conviction recorded. The charges to which Mr CL pleaded guilty were particularised in the transcript of the criminal proceedings as follows: [O]n a date unknown between the 1st day of July 2005 and the 31st day of December 2005… [Mr CL] unlawfully assaulted [his son] and did him bodily harm, and [Mr CL was] armed with an offensive instrument. [O]n a date unknown between the 1st day of January 2005 and the 31st day of December 2010… [Mr CL] unlawfully assaulted [his son] and did him bodily harm.1 [8] The matter proceeded to a hearing before the Tribunal. Mr CL relies on statements prepared by him and other people that he says attest to his good character and personal circumstances since the offending behaviour, including his studies as a nursing student and work as a cadet with young people. Mr CL also relies on the evidence of his treating psychiatrist and psychologist and an independent report prepared by a psychologist (Ms Victoria Barclay-Timmis). [9] Mr CL and some of his witnesses that attest to his good character and personal circumstances, Ms TV, Ms RT, Ms DI, Ms QO and Ms CZ gave oral evidence at the hearing. Mr CL’s supervisors from the school cadet unit, Ms BG and Mr FP; and his treating psychiatrist Dr Joanne Barkla2 also gave oral evidence at the hearing. Mr CL in giving his oral evidence was given an opportunity to respond to questions about his offending behaviour and personal circumstances. What is an ‘exceptional case’? [10] The Tribunal, standing in the shoes of the respondent decision maker, must decide whether it is appropriate to cancel Mr CL’s positive notice and in relation to issuing a negative notice, determine whether or not there is an “exceptional case” for Mr CL in reassessing his eligibility to hold a blue card under s 237 of the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act). [11] The offending behaviour giving rise to the reassessment of Mr CL’s eligibility to hold a blue card concerns charges that for the purposes of Division 9 of the CCYPCG Act are not serious or disqualifying offences.3 The Tribunal on review must therefore be satisfied that this is ‘an exceptional case in which it would not be in the best interests of children’ for Mr CL to hold a blue card, then the positive notice must be cancelled and a negative notice be issued to him.4 1 The Queen v CL, (Unreported, District Court of Queensland, Dorney DCJ, 9 September 2013). 2 Dr Barkla, consultant psychiatrist, gave evidence (with leave) by telephone. 3 CCYPCG Act s 221. Section 237(2) prescribes that Division 9 applies in making a decision about whether to cancel a positive notice and issue a negative notice. 4 CCYPCG Act s 221. -- 3 of 16 -- 4 [12] The CCYPCG Act does not define an “exceptional case” but does refer to certain factors that the Tribunal, standing in the shoes of the respondent decision maker, must consider in determining CL’s eligibility to hold a blue card. For example, when the offence was committed or is alleged to have been committed; the nature of the offence and its relevance to employment or carrying on a business that involves or may involve children; and anything else relating to the commission of the offence that the Commissioner or Tribunal on review reasonably considers to be relevant.5 [13] The Tribunal on review 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’.6 [14] The Tribunal must consider the objects of the CCYPCG Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.7 In determining whether this is an exceptional case, the Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.8 [15] In the event that the Tribunal on review confirms the decision made by the Commissioner to issue a negative notice, Mr CL is not prevented from applying to the Commission, at some future time, for a blue card to enable him to work with young people. Relevant factors in considering whether this is an exceptional case [16] The Tribunal has identified the following factors as being relevant to the exercise of discretion under the CCYPCG Act to determine whether this is an exceptional case. a) Nature of the offending behaviour [17] The QPS information identified 7 offences including assaults occasioning bodily harm whilst armed on 1 July 2005 (2 counts) and 1 November 2011; assaults occasioning bodily harm on 1 January 2010 and 1 June 2010; and common assault on 1 January 2007 and 1 April 2010. Mr CL pleaded guilty to 2 charges and the remaining charges were discontinued. [18] The transcript of the District Court proceedings refers to the context in which the offending behaviour took place. Mr CL at the time of the criminal proceedings had been married for 18 years and had 5 children. [19] In relation to the offences of common assault on 1 January 2010 and 1 April 2010 and assaults occasioning bodily harm whilst armed on 1 July 5 Ibid s 226. 6 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [29]. 7 CCYPCG Act s 5. 8 Ibid s 155. -- 4 of 16 -- 5 2005, the offending behaviour took place in the context of conflict between Mr CL and his ex-wife. [20] The 2 offences to which Mr CL pleaded guilty took place in the family setting in circumstances of conflict between Mr CL’s complainant son and one of his younger sons. The complainant, Mr CL’s son, in relation to the first charge was 8 years of age and in relation to the second charge was 13 years of age at the time of the offending behaviour. [21] Mr CL is said to have reacted to the situation of conflict between his complainant son and younger son in a way referred to by his legal representative in the criminal proceedings as an ‘irrational loss of control’.9 [22] In relation to the first offence, Mr CL pleaded guilty to counts 1 and 2 and was discharged in relation to count 3. The offending behaviour took place in about 2005 in Mr CL’s shed at the family home. The complainant son (aged 8 years) went into the shed and touched one of Mr CL’s lead solider figures. Mr CL hit his complainant son with a piece of plywood causing bruising to his back and legs. The legal representative for the prosecution stated: The child touched the soldier. [Mr CL] walked over to him, grabbed him by the arm, and assaulted him with a piece of plywood, described as about two centimetres thick, and 70 to 80 centimetres long, and the complainant states he was hit between five and six times, which caused bruising to his back and legs and caused him difficulty sleeping.10 [23] The second offence to which Mr CL pleaded guilty took place some years later in the family kitchen during a disagreement between his complainant son and his younger son. Mr CL’s son (aged 13 years) sustained bruising to his neck and had difficulty breathing as a result of the incident. The legal representative for the prosecution stated: [Mr CL] grabbed [the complainant son] around his neck, at the point to which [the complainant son] states he had difficulty breathing, and the defendant yelled at him, something like, “I’ll fucking kill you”. [The complainant son] sustained bruising to his neck.11 [24] Mr CL was sentenced to a period of probation for 12 months with conditions and no conviction recorded. In considering the sentence to be imposed the sentencing Judge stated: And I think the 12 month [probation] period does that. It may be a little harder but in a sense, I think [Mr CL] has to face the fact that these are criminal charges against his own children. They are explicable in terms of the things he had little control over but they are still criminal charges for which he has to take responsibility and I think the notion of that is that the 9 The Queen v CL, (Unreported, District Court of Queensland, Dorney DCJ, 9 September 2013), p 12 line 10. 10 Ibid p 5 line 5. 11 Ibid p 5 line 20. -- 5 of 16 -- 6 court impose something which both the court and he recognises are important aspects of that.12 [25] Mr CL, in giving his evidence before the Tribunal about the circumstances of the offending behaviour, presents a slightly different version of events to that of the police information. For example in relation to the first offence Mr CL stated that he ‘pushed’ a piece of wood that was approximately 2 to 4 millimetres thick on the back of his son’s legs. Mr CL denies that there was any significant bruising to his complainant’s son’s legs stating that there was a ‘mark’ on the back of his son’s legs that went away after about 10 minutes. [26] In relation to the second incident Mr CL gave evidence that the incident happened when his son was aged 10 or 11 years (not 13 or 14 years as recorded in the police information) and occurred during a time when he (Mr CL) was left alone in charge of his 5 children. He stated that his complainant son has behavioural issues and was hitting Mr CL’s younger son. Mr CL stated that he pushed his complainant son against the wall with his hands and his fingers would have been near his neck and the incident may have left a mark on his son. Mr CL denied threatening his complainant son and denies saying the words ‘I’m going to kill you’ stating that he may have said to his complainant son in the past in relation to another unrelated incident words to the effect, ‘your such a baby, stop crying’ or ‘you fighting would be like a retarded baby’. [27] Mr CL also gave evidence at the Tribunal hearing about the circumstances in which he pleaded guilty to 2 of the charges stating that he did not want his sons to have to go to court two times to give evidence. He also referred to the victim impact statement stating at the hearing: ‘the victim impact statement said [my complainant son] did not have a father he could trust and no father to protect him. [It was the] best decision to plead guilty after reading the victim impact statement’. [28] The Tribunal in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009 cannot go behind the convictions. As previously determined by the former Queensland Childrens Services Tribunal (QCST) in Re FAA13 the Tribunal must accept the convictions as “conclusive”. In Re FAA, the former QCST considered an earlier Federal Court decision of Minister for Immigration and Ethnic Affairs v Gungor.14 The Federal Court determined that an administrative tribunal with ‘wide investigational powers’ that was not bound by the rules of evidence should review the conviction on its ‘essential factual basis’. [29] In relation to the criminal charges accepted by Mr CL in entering a plea of guilty, the Tribunal will accept the circumstances of the offending behaviour as detailed in the particulars of the charges and presented by the prosecution before the District Court in the criminal proceedings. 12 Ibid, p 16, line 20. 13 (Unreported, Queensland Children Services Tribunal, Hon Robert Bulley, 31 July 2006). 14 [1982] 42 ALR 209. -- 6 of 16 -- 7 [30] Mr CL gave evidence at the hearing before the Tribunal and filed written material about his personal circumstances and life story relevant to the offending behaviour. Mr CL married his ex-wife in 1992 (aged 19 years). He referred to his marriage as being ‘strained’ prior to enlisting as a private solider in the Australian Army in 1995 aged 22 years.15 [31] Mr CL was promoted to the rank of captain at age 28 years and was deployed to East Timor in late 1999. He returned to Australia in May 2000. Mr CL gave evidence about the difficulties he had both personally and medically upon his return to Australia in relation to an earlier untreated spinal injury for which he took prescribed medication to manage his pain; and his post traumatic stress disorder (PTSD) resulting from his time spent in East Timor diagnosed in 2002 for which he sought treatment. In early 2012 Mr CL was hospitalised for a brief period of time for his diagnosed PTSD. [32] Mr CL was medically discharged from the Australian Army in 2004 aged 31 years. He commenced working with young people at the SF School as a youth development officer in 2007 with the Australian Army Cadets. [33] Mr CL separated from his wife and left the family home in May 2011 but states that he continued to have contact with his children. In July 2012 he commenced a Bachelor of Nursing degree at the University of Southern Queensland. He was arrested by police in relation to the offending behaviour in August 2012 and states that he has not had contact with his children since about September 2012. [34] Mr CL’s evidence about his diagnosed PTSD and the changes in his behaviour relevant to his personal circumstances and the offending behaviour was consistent with oral submissions made on his behalf by his legal representative in the District Court criminal proceedings. His legal representative stated: Consistent with the subsequent diagnoses…the complainant states that [Mr CL’s] behaviour changed, and he was, in fact, diagnosed with post traumatic stress disorder, and a major depression and anxiety, after his return [from East Timor]. He was irritable and very short with all members of the family, and the family had, in fact, moved houses…where there was perception it would be less noisy and therefore less stressful. The context of the charges…are that the child in both instances, separated by a significant amount of time, was behaving contrary to instruction, if I can put it that way, but the defendant’s behaviour towards his family was often aggressive and unpredictable…he was labouring under his psychological burden…it was a very difficult house for that family.16 [35] The Tribunal accepts the evidence given by Mr CL that the offending behaviour took place in a family setting in the context of him disciplining his son during a difficult time in Mr CL’s life having been diagnosed with PTSD. The convictions for the purposes of the CCYPCG Act are not 15 Exhibit marked “2”. 16 The Queen v CL, (Unreported, District Court of Queensland, Dorney DCJ, 9 September 2013), p 4 line 45. -- 7 of 16 -- 8 serious or disqualifying offences but do involve children and the effects of the offending behaviour resulted in both physical and emotional harm to Mr CL’s son. b) Insight into the offending behaviour – Mr CL’s son [36] Mr CL gave evidence at the hearing about the impact of the offending behaviour on his complainant son referring to the victim impact statement presented during the District Court criminal proceedings and the fact that he was away on deployment in the army when his son was young. Mr CL stated in giving his oral evidence before the Tribunal that he is worried about his complainant son. He also stated: I’ve read the victim impact statements. I was not there to protect [him] and I let him down. [I] was away on deployment when he was young and came back and he doesn’t know me any differently. [37] Mr CL gave evidence about another incident that took place at a dam in early 2011 resulting in an injury to his complainant son. Mr CL stated that he and his family were playing in a dam and his sons started throwing mud balls and one of the mud balls splashed and hit his youngest son (aged 3 years) who started to cry. Mr CL states that he told his complainant son not to do it again. Mr CL picked up a ball of mud and threw it in the direction of his complainant son and states that it must have had a rock in it as it left a scratch and he (his complainant son) was upset, crying and bleeding. Mr CL stated at the hearing: ‘my son [was] in a position of feeling vulnerable and needed my help and I didn’t help him and I was the cause of it’. [38] Mr CL gave evidence that he saw his treating specialists about the incident the next day and his ex-wife also spoke to his treating psychiatrist about the incident. Mr CL acknowledged during cross-examination that his actions had resulted in emotional harm to his complaint son. He also stated that when he was left in a position of being responsible for his children he had no patience or tolerance. c) Insight into the offending behaviour – Mr CL’s ex-wife [39] Mr CL was questioned at the hearing about his statements filed in these proceedings and whether he was minimising or shifting blame to his wife in relation to the comments he made about the context of the offending behaviour, in particular the criminal proceedings. Mr CL stated during his oral evidence that he could only take responsibility for the things he knows happened. He also stated that his ex-wife did not ‘have it easy’ referring to moving her away from her family and friends when it was necessary to move with the army. Mr CL denied that he has attempted to take his own life as suggested by his ex-wife when he was referred to the information contained in the “record of concern” Department of Communities, Child -- 8 of 16 -- 9 Safety and Disability Services material referred to in the Commissioner’s statement of reasons filed in the Tribunal.17 [40] Mr CL stated that after he left the family home and separated from his ex- wife in May 2011 he lived with his mother for a brief period. He states that in early 2012 he and his young sons were ‘reconnecting again’ stating that they would go camping and go to the movies. [41] Mr CL stated that his ex-wife wanted to reconcile their relationship in about December 2011 and he had an argument with her and this reaffirmed that they could not live together. He stated that the charges were brought against him in September 2012. He stated in giving his oral evidence: ‘obviously [my ex-wife was] not happy. I moved on. She went to the police’. Mr CL stated that his ex-wife moved away with his sons after the criminal charges were presented and he also has a domestic violence order against him. [42] Mr CL gave evidence at the hearing about the domestic violence order that commenced in around September 2012. He stated that there was a hearing and final orders made in January 2013 to be lifted on 30 January 2015. Mr CL stated that his ex-wife subpoenaed medical documents and he provided written reports to defend the proceedings and stated there was no evidence of any assault and she relied on the criminal charges. He stated during his evidence at the hearing that he did not attend the domestic violence hearing because he could not travel to the hearing due to the floods in Bundaberg where he had been staying for Christmas. [43] In relation to having future contact with his sons Mr CL stated that he presently does not know where his sons are living including his eldest son who is not subject to the domestic violence order because he is aged over 18 years. His stated that he has previously made attempts to participate in mediation with his ex-wife through Relationships Australia but because of the domestic violence order there is no requirement that his ex-wife attend counselling. d) Insight into the offending behaviour – diagnosed PTSD [44] There is evidence before the Tribunal about Mr CL’s diagnosed PTSD relevant to the circumstances of his offending behaviour. Mr CL gave evidence about the impact his diagnosed PTSD had on his family following his return to Australia after deployment to East Temor stating that it (PTSD) was something that ‘creeped in slowly’. He also stated that his ex-wife never accepted that he had PTSD. Mr CL stated that since 1999 he had been taking prescribed medication for a spinal injury until he had surgery for his condition in 2001. Mr CL stated that he was taking approximately 6 to 7 different types of prescribed medication in 2010 when he commenced counselling and received support from his treating psychologist. 17 Material filed under s 21 of the Queensland Civil and Administrative Tribunal Act 2009. -- 9 of 16 -- 10 [45] Mr CL returned to work in the army after his surgery in 2001 and was regularly moved around for work. He gave evidence about the opportunities to go away for work stating that he ‘didn’t like being at home’. He stated that arrangements were made for his sons to see a psychologist in 2008 and in around 2009 his wife also attended counselling. [46] Mr CL gave evidence about the ‘triggers’ associated with his diagnosed PTSD after he was diagnosed in 2002. He stated that in 2005 there were some ‘dark days’ and referred to ‘outbursts’ every now and then particularly in relation to conflict with his ex-wife. In relation to relationships with his children he stated that he relied on his ex-wife to enforce any discipline and would “isolate” himself stating: ‘[I was the] crazy guy in the shed’. [47] Mr CL also gave evidence about the impact of his PTSD on him as a parent stating that his sons could not understand why he was loved as a cadet but at home he was ‘grumpy’. He stated that he now has strategies in place to manage his PTSD including using cognitive behaviour techniques by looking at things that escalate his behaviour, meditation and listening to music, and taking his medication. He also stated that there are people in his life who he can rely on to support him including his treating psychologist and friends. [48] Dr Barkla, Mr CL’s treating psychiatrist, prepared reports in relation to the criminal proceedings and the Tribunal hearing. She also gave evidence at the hearing by telephone. She stated that Mr CL commenced treatment with her in October 2010 and stated that since his treatment she has seen an improvement in his anger levels stating that he had ‘improved considerably’ in relation to managing his stress and his interactions with others including his children. [49] In relation to Mr CL’s period of hospitalisation in early 2012 Dr Barkla stated that he was ‘quite agitated’ due to the change in his medication and he settled down very quickly. Dr Barkla also gave evidence about the risks associated with Mr CL not taking his medication stating that there was a risk of relapse in that there would be a return of his symptoms. She stated that during times of more stress it might be necessary to reinforce strategies in place to manage his condition. Dr Barkla confirmed that Mr CL continues to see her every 2 months for sessions. Dr Barkla also stated that in relation to the dam incident in early 2011 that Mr CL’s ex-wife had telephoned her to discuss the incident but did not raise any other issues such as Mr CL’s alleged anger towards her. [50] Mr CL’s treating clinical psychologist, Mr Petroff, also prepared a report for the criminal proceedings. He was not available to give evidence at the hearing. In his report dated 7 December 2012, Mr Petroff confirms that Mr CL commenced treatment for PTSD on 3 May 2007. In relation to the dam incident in 2011 he states: -- 10 of 16 -- 11 … [Mr CL] stated he was separated from his wife and family as of 13 May 2011, on the suggestion of his brother. At the time he was living with his mother. He stated that he believed that this had come about because of an incident that had occurred at Coobey Dam earlier that year that was relayed to his brother. During this incident one of his sons [sic] was injured. He reported that in this incident he had thrown a handful of mud at his son in the hope of splashing him, however had accidently hit him on the head leading to a cut to his head. According to Mr CL the act was unintentional….During this session [9 May 2011] he stated that the family found it hard to cope with him…he expressed regret and remorse [for the dam incident] and reiterated that it was an accident, and that he wished it never had happened.18 [51] Mr CL also relies on a report prepared by Ms Barclay-Timmis, psychologist, dated 30 January 2014 however she was not available to answer questions at the hearing. Ms Barclay-Timmis states that following assessment via a clinical psychological interview on 29 January 2014 Mr CL’s risk of reoffending should be considered low. She states in relation to his offending behaviour: Mr CL displayed good insight into his offending behaviours. Mr CL was able to articulate how his experiences in East Timor had triggered a decline in his mental health, leading to a diagnosis of PTSD in 2002. …Mr CL admitted that his negative mood and irritability were often directed at his family, and that he was particularly hard on his [complainant son]. Mr CL explained that his hypersensitivity to stimuli associated with his service in Timor (such as the sound of children crying) would cause him to act aggressively and irrationally; it was noted that in both the assault charges for which he pled guilty, this trigger had been present. However Mr CL did not attempt to excuse his actions and recognised the negative impact that his volatility had on his children and wife.19 [52] Mr CL’s evidence that he is open with other people about the criminal charges and his diagnosed condition (PTSD) is supported by his witnesses Ms TV, Ms RT, Ms CZ, Ms QO and Ms DI. [53] Mr CL’s friend Ms TV has known him since November 2012. She gave evidence about a road trip she took with Mr CL and her own children that involved travelling in a car for a number of hours. She stated that Mr CL prior to the trip telephoned her and said that if her children got upset in the car it could lead to a flashback. He took iPod with him so that he could manage the journey. Ms TV stated that she would not have known that Mr CL had a diagnosed condition had he not told her about his PTSD stating that she was ‘completely unaware’. Ms TV also gave evidence about Mr CL’s positive interactions with her 6 children, one of whom has a diagnosed intellectual impairment. Mr CL has cared for Ms TV’s children aged 6 to 16 years. Ms TV stated that she would trust Mr CL ‘explicitly’ with her children and that she does not think he is a danger to his children. [54] Ms RT has known Mr CL since July 212 and gave evidence at the hearing about his diagnosed condition stating that he told her he had PTSD and is 18 Exhibit marked “16”, p 2. 19 Exhibit marked “12”, p 7. -- 11 of 16 -- 12 receiving treatment but did not go into a lot of detail. When questioned at the hearing she stated: ‘[Mr CL is] quite private about it. He was diagnosed with PTSD and hasn’t gone into a lot of detail, that’s his personal decision’. In relation to the criminal charges she stated that he was upset by it and dealing with it in a ‘professional manner’. Ms RT also gave evidence about Mr CL’s positive interactions with her own son stating he has spent time with her son as a family. Ms RT also gave evidence about her observations of Mr CL in stressful situations as part of their nursing studies stating that he would take charge and lead the team to do everything to get through. [55] Ms CZ has known Mr CL since March 2012 and gave evidence at the hearing about his diagnosed PTSD stating that he is ‘self aware’ and that he monitors his condition by putting in place strategies that will support him. For example, she stated that Mr CL routinely takes his medication. In relation to the criminal charges Ms CZ stated that Mr CL told her about the charges and he was very stressed about the incident. Ms CZ has not witnessed any interactions between Mr CL and his sons but gave evidence that she has witnessed positive interactions between him and young people in his role as a youth development officer with cadets. [56] Ms QO was introduced to Mr CL through her husband who studied nursing and was previously in the military. She has known Mr CL since June 2012 and stated that he told her about his diagnosed PTSD and the criminal charges. Ms QO stated that she has no problems with leaving her children aged 12 and 14 years with Mr CL. [57] Ms DI has known Mr CL since 2007 through his work with cadets. She sated that Mr CL told her about his marriage separation and the incident at the dam (in 2011). She also stated that he was open with her about his diagnosed PTSD and the criminal charges. Ms DI stated that she has known Mr CL in his capacity as a mentor for her daughter who was a cadet, as a colleague during her work with cadets, and as a friend. She stated that Mr CL is good to have a chat with, referring to his ability to communicate and a depth of understanding that she thinks comes from attending counselling. She also gave evidence about her observations of Mr CL’s interactions with 2 of his young sons referring to one occasion where they were painting a shed stating that it was a very ‘pleasant experience’. e) Employment – positive interactions with young people [58] Mr CL gave evidence at the hearing about his intentions in relation to studying nursing and his application for a blue card necessary to enable him to attend clinical placement and work as a nurse. He stated that not having a blue card does not financially impact on him as he is still in receipt of some income from the army. In relation to his clinical placement and employment as a nurse Mr CL stated that there is a hospital where he can work that does not have children or young people. -- 12 of 16 -- 13 [59] Mr CL’s duties as a training officer included training and supervising young people aged 12 to 17 years. Mr CL also personally participated in testing in late 2007 to enable him to work as a cadet and this included army psychological testing. [60] Mr CL indicated to the Tribunal at the hearing that he will not return to his work as a training officer with cadets. Mr CL’s evidence about his employment as a youth development officer with cadets - in particular the evidence of his positive interactions with young people at the school - is relevant to the protective factors to be considered by the Tribunal on review. Mr CL’s witnesses Ms BG and Mr FP support his evidence about his positive interactions with young people and his work as a training officer with cadets. [61] Ms BG has known Mr CL since 2007 and gave evidence about his diagnosed PTSD and the criminal charges. She stated that Mr CL was open about his diagnosed PTSD and there were never any issues during his time with cadets. Ms BG stated that Mr CL had a great rapport with the young people he trained and described him as being ‘incredibly patient’. Ms BG also observed Mr CL interacting with his some of his young sons at cadets stating that his sons ‘idolised him’. She stated that during Mr CL’s employment and work with the school as a cadet training officer there was only one complaint that related to a disagreement between him and a young female cadet but stated that no action was taken in relation to Mr CL’s conduct. [62] Mr FP also gave evidence about Mr CL’s positive interactions with young people. He has known Mr CL since 2007 through the cadets. He stated that Mr CL would keep the cadets ‘on task’ and in relation to another senior cadet who was described as being emotional he stated that Mr CL managed the cadet ‘very well’. Mr FP also observed Mr CL’s interactions with his own young sons during cadet camps commonly referred to as a ‘bivouac’. Mr FP stated that Mr CL’s sons came along on the camp and Mr CL was observed by him to be ‘always calm’. Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists? [63] Mr CL pleaded guilty to 2 criminal charges involving a child (his son) and the offending behaviour resulted in both physical and emotional harm to his son. There is also evidence before me of other complaints made to police concerning allegations of physical and verbal aggression by Mr CL towards his ex-wife, however no further action was taken by police. [64] The offending behaviour to which Mr CL pleaded guilty took place some years ago but charges were presented following a complaint being made to police in about September 2012. Mr CL was sentenced in the District Court on 9 September 2013 to a period of 12 months probation with conditions and no conviction recorded. I accept Mr CL’s submission that he has complied with the conditions of his probation including reporting to -- 13 of 16 -- 14 his probation officer and continuing to attend counselling with his treating psychologist. [65] There is evidence before me of Mr CL’s insight and remorse into his offending behaviour that took place during a difficult time in his life due to pre-existing marital discord and his diagnosed PTSD. The Tribunal accepts the evidence of Mr CL’s treating psychiatrist Dr Barkla that he was diagnosed with PTSD in 2002 and has been managing his condition by putting in place strategies including taking medication, attending counselling and relying on the support of his treating psychologist and friends. [66] The Tribunal accepts Mr CL’s evidence, corroborated by his witnesses who gave evidence at the hearing, that he is open about his offending behaviour to which he pleaded guilty and his diagnosed PTSD. This is also relevant to Mr CL’s insight into his offending behaviour. [67] Mr CL has had no contact with his young sons since September 2012. He separated from his family in about May 2011 and gave evidence at the hearing that he continued to have contact with some of his young sons after separation referring to positive interactions in early 2012 before the police charges were presented and contact ceased in September 2012. There is evidence before the Tribunal of another incident involving Mr CL and a child (his son) in early 2011 at a dam resulting in both physical and emotional harm to Mr CL’s son. This is a more recent incident that took place during a time when Mr CL was receiving treatment from his treating psychiatrist Dr Barkla and psychologist Dr Petroff for his diagnosed PTSD. The Tribunal accepts Mr CL’s evidence given at the hearing that he is remorseful for his actions in relation to the 2011 dam incident and that he discussed the incident with his treating psychiatrist Dr Barkla and psychologist Mr Petroff after the incident. [68] The Tribunal is not satisfied based on the evidence given by Mr CL and his witnesses including friends that there is no risk of reoffending should Mr CL again take on a parenting or primary carer role of his young children. Mr CL’s witnesses, save for Ms DI, Mr FP and Ms BG, are people or friends he has met in more recent years after his offending behaviour. Mr CL has given evidence supported by his witnesses and treating psychiatrist that he has put in place strategies to manage any risk of outbursts of anger or irritability that was a contributing factor to the offending behaviour that took place between 2005 and 2011. There is no independent evidence before the Tribunal from witnesses who have known Mr CL at the time of the offending behaviour (2005 to 2011) to corroborate his evidence about how he now manages his diagnosed PTSD in the context of a parenting or primary carer role. [69] The Tribunal has considered the evidence given by Ms QO, Ms TV and Ms RT in relation to Mr CL’s positive interactions with their young children that took place after the offending behaviour. Mr CL’s interactions were however in the context of a short term carer role where Mr CL was for example baby sitting and is therefore not evidence of Mr CL interacting -- 14 of 16 -- 15 with young people such as his own young sons as a long term carer or in a parenting role. [70] The evidence of positive interactions between Mr CL and his young sons during and after the offending behaviour at cadet training programs and camping trips took place in a controlled setting in circumstances where Mr CL was performing his role of youth development officer. Mr CL gave evidence at the hearing about his interactions with young people as a cadet as being different from the way in which he interacted with his own young sons at home. For example he stated during his oral evidence that his sons could not understand why he was loved as a cadet but at home he was grumpy. This is consistent with the evidence of Ms BG, Ms DI and Mr FP who have known Mr CL since 2007 and witnessed positive interactions between Mr CL and his young sons at cadet training and camps. [71] There is evidence before the Tribunal given by Ms DI about a positive experience she witnessed between Mr CL and some of his young sons during the painting of his shed after Mr CL separated from his family. Ms DI did not, however, witness regular interactions between Mr CL and his young sons in the context of a family setting where he was the primary carer. [72] The issue of whether there remains a risk of reoffending should Mr CL take on a long term carer or parenting role is also relevant to the issue of transferability of a blue card in that there are no restrictions that can be placed on a blue card and Mr CL, if he continues to hold a blue card, would be able to take on a role of foster carer or commence a relationship with another person who is caring for children in a family setting. [73] The Tribunal has also considered the expert evidence of Ms Barclay- Timmis who reports that Mr CL’s risk of reoffending is low. The Tribunal must exercise caution in relying upon her evidence alone on the basis that it remains untested, Ms Barclay-Timmis having not being available to answer questions at the hearing. [74] Evidence was given by Mr CL at the hearing in relation to a domestic violence order that is current until 30 January 2015. The circumstances of the domestic violence order is relevant to the risk factors that must be considered by the Tribunal. There is no direct evidence before the Tribunal in relation to the circumstances giving rise to the domestic violence order and the basis upon which the order was put in place. Mr CL gave oral evidence at the hearing about the domestic violence order and stated that his ex-wife relied on the criminal charges to which he pleaded guilty in September 2013 and stated that he did not attend the hearing in January 2013 because he was in Bundaberg during the December floods. [75] The Tribunal has also considered Mr CL’s evidence in relation to his current employment and is not satisfied that he requires a blue card to enable him to continue his nursing studies and employment. Mr CL stated -- 15 of 16 -- 16 during the hearing that he had no immediate intentions of returning to work with young people as a cadet and in relation to his nursing studies he stated that his employer has been supportive of his permitted work restrictions and stated that there was a hospital that did not have children where he could possibly work. [76] The Tribunal is satisfied having considered all of the evidence that this is an exceptional case in which it would not be in the best interests of children for the Tribunal on review to issue a positive notice. There is evidence before the Tribunal of offending behaviour involving a child and Mr CL is currently subject to a probation order and is prohibited from having contact with his ex-wife and young children due to a current domestic violence order effective until 30 January 2015. [77] The Tribunal cannot be satisfied based on all of the evidence before it that there is no risk of reoffending should Mr CL take on a long term carer or parenting role of children including his young sons. Mr CL has had no contact with his young sons since September 2012 and prior to that he only had some contact with some of his young sons from a date after May 2012 when he separated from his family to September 2012 when contact ceased. The Tribunal must hold the interests of children as its paramount consideration in determining whether this is an exceptional case in which it would not be in the best interests of children to issue a positive notice. The decision of the Commissioner to cancel Mr CL’s positive notice and issue a negative notice is confirmed. -- 16 of 16 --