DL v Commissioner for Children and Young People and Child Guardian [2013] QCAT 660

CITATION: DL v Commissioner for Children and Young People and Child Guardian [2013] QCAT 660 PARTIES: DL (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML 057-13 MATTER TYPE: Childrens matters HEARING DATE: 12 September 2013 HEARD AT: Maroochydore DECISION OF: Member Jarro (Presiding) Member Murray DELIVERED ON: 11 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice is confirmed. 2. The Tribunal prohibits the publication of names of the children, the applicant, the referees and organisations in this decision. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – whether exceptional case exists – domestic violence offences in presence of a child Commission for Children, Young People and Child Guardian Act 2000 ss 155, 221, 226 Queensland Civil and Administrative Tribunal Act 2009 s 66 APPEARANCES and REPRESENTATION (if any): APPLICANT: DL RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms L Keown -- 1 of 9 -- 2 REASONS FOR DECISION [1] On 14 March 2013, the Commissioner for Children and Young People and Child Guardian (“the Respondent”) decided to issue a negative notice in relation to the Applicant’s application for a Blue Card. In accordance with the Commission for Children and Young People and Child Guardian Act 2002 (“the Act”), the Respondent determined that an exceptional case existed in which it would not be in the best interests for children for a positive notice to be issued. [2] The Applicant seeks a review of the Respondent’s decision. This requires the Tribunal to conduct the matter afresh and proceed by way of hearing de novo. The Tribunal must apply the same law as the Respondent which means it must consider whether the Applicant’s case is an exceptional one. Whilst the Act does not define “exceptional case”, the central focus of the Act is the protection of children. The paramount principle which must be administered is that the welfare and best interests of a child are paramount. Section 155 provides that: The paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.1 [3] Further because the Applicant has a criminal history, the Tribunal must take into account the factors in s.226 of the Act. The factors include the nature of the offence and charge, when it occurred, its relevance to child-related employment and any court-imposed penalty. The Act is not intended to impose an additional punishment on a person who has a criminal history. It should be noted that in this instance the Applicant’s criminal history does not include any “serious offence” or “disqualifying offence” as defined by the Act.2 In these circumstances, the Tribunal must issue a positive notice unless satisfied that this is an exceptional case in which would not harm the best interests for children for the Applicant to have a positive notice.3 The Applicant’s Case for a Positive Notice [4] The Applicant wanted the opportunity to discuss and “prove that [he was] not the person as” he was when his criminal offending occurred. Whilst that may be the case, the role of the Tribunal is mandated by the paramount principal and the main issue for consideration is whether or not an exceptional case exists. [5] The Applicant does not dispute that he has an extensive criminal history and did not seek to make excuses for what occurred, but he wanted to highlight that he was not the same person as he was when he committed the various criminal offences. In this regard, it is relevant to note that the Applicant has a criminal history in Queensland and New South Wales for offences including: - breach of domestic violence order (x 4); 1 See the recent remarks in McAlister v Commissioner for Children and Young People and Child Guardian [2013] QCAT 438 at [3]-[8] per Member Joachim. 2 The Act ss 167, 168 and Schedules 2 and 3. 3 The Act s 221. -- 2 of 9 -- 3 - assault occasioning bodily harm (x 3); - wilful damage (x 1); - unlawful stalking and common assault (x2). [6] The Applicant also has multiple convictions for dishonesty, drug and property related offences. In addition, the Applicant has a conviction for threatening violence by words or conduct at night. [7] The Applicant told the Tribunal, which the Tribunal accepts, that he had been making more positive changes in his life for the past 7 years. He indicated that the steps he had taken “had been many and varied” and included as follows: Date Course September 2006 One-on-one Domestic Violence Counselling for over 3 months (report sent directly to DOCS) July 2007 Thrills and Spills of Parenting July 2007 Computer Course October 2007 Attended Seminar on Autistic Spectrum Disorder November 2007 Mercy Family Services Family First Program November 2007 Self Esteem Course 2007-2008 Relationship Counselling (counselling-couple, individual, parenting and family support and financial planning: Lifeline) 2007-2009 Anger Management and Counselling with a psychologist 2009 Triple PPP Parenting Program December 2011 Gearing Up Parents as Partners in Education (GUPPIE) February 2012 Support-A-Reader December 2012 Certificate IV in Small Business Management [8] The Applicant indicated that his life “started to spiral out of control” after he was involved in a motor vehicle accident when he was 19. He is now 47. Following the motor vehicle accident, he required many months of rehabilitation and still suffers from neurological issues to the present day. The Applicant went from being a fit, health and sports-orientated person to being stuck in a hospital bed for months and having to learn how to walk again. He indicated that it was not long after this that he was charged with his first offence (drink driving). [9] The Applicant accepted that in the past when he was at his lowest, he was not always in healthy relationships. He sought to highlight that he moved away from the area where most of his criminal offending had occurred. He -- 3 of 9 -- 4 has been living in a committed and loving relationship for several years and he credits his partner for his own emotional stability. He indicated that he struggled and worked hard to change his life around and felt that at times it “had been one step forward and two back”. The main motivation behind making positive changes in his life for the last 7 years was because his children were placed in the care of the Department of Communities, Child Safety and Disability Services. The Applicant recently consented to his children being place under long term guardianship orders because they were in a stable, loving environment with kin. [10] The Applicant called three witnesses to support his application, including his partner who is a teacher and actively involved in community matters; a friend who works in the community sector and has an autistic son who looks up to the Applicant; and the headmaster of the local school where the Applicant assists in sports coaching particularly for rugby league. [11] All witnesses were aware of the Applicant’s past criminal history. They encouraged the Tribunal to issue a blue card because they highlighted the Applicant’s attendance and participation at the various programs (identified above); indicated that he had effective communication and conflict resolution skills to deal with stressful events and that the Applicant had very good relationships with children who came into contact with him and that children felt safe around him. [12] As part of the Applicant’s evidence, two reports were also furnished. The reports are dated March 2008 and January 2009 and relate to the intervention when the Department of Communities, Child Safety and Disability Services were involved, and although they are historical, confirm that there were significant issues surrounding matters of domestic violence. The reports highlighted that the Applicant participated in programs to alleviate the Department’s child protection concerns. [13] When cross-examined by the Respondent, the Applicant wanted to reassure that his past behaviour would not happen in the future because there have been no problems since 2005 and if his criminal history was looked at properly, then it would reveal that the dates of the criminal offending were not regular and whilst the domestic violence allegations and convictions occurred, “no one asked for my story”. The Applicant said that he was a lot younger and stupid and a lot of the past behaviour related to issues concerning alcohol of which there have not been for many years. [14] The Applicant was reluctant to provide material from the Department of Communities, Child Safety and Disability Services to the Respondent when the review decision was made. The Applicant thought that it had no bearing on him in relation to his blue card application. He indicated that his relationship with the Department was “a bit better than it was 7 years ago”. He rejected the Department’s assessment that he had limited capacity to change. [15] When questioned about the domestic violence history and it having an adverse impact on his children, the Applicant was unable to offer any opinion about the impact of his offending. -- 4 of 9 -- 5 Why the Commissioner says the Applicant should not have a Positive Notice [16] The Respondent indicated that the Applicant’s criminal history spans a period of 20 years from 1985 to 2005. The Applicant was approximately 19 years of age when he was convicted of his first offence in October 1985 and 39 years of age when he committed his most recent offence in 2005. The Respondent submitted that between October 2004 and June 2005, the Applicant committed and/or was charged with 7 violent offences in the presence of one of his children. [17] It was submitted that the Applicant’s criminal history demonstrated an ongoing and escalating pattern of offending behaviour over much of his adult life and that in determining whether an exceptional case exists, it was necessary to consider the volume, persistence and nature of the Applicant’s offending, in particular: (a) the Applicant has a lengthy criminal history including multiple convictions for violent-related offending; (b) specifically the Applicant has convictions for assault occasioning bodily harm and wilful damage in 1999 when he acted in a violent and aggressive manner towards the male complainant causing significant injury to the complainant’s face and head; (c) between September 2002 and March 2003, the Applicant was convicted of unlawful stalking. He engaged in threatening and intimidating behaviour towards the female complainant over a 7 month period including acting aggressively towards her, telephoning her and taunting her in public. The Applicant’s actions caused the complainant to sustain a significant deal of distress and fear; (d) in 2004, the Applicant was convicted of common assault and assault occasioning bodily harm after he and a co-defendant attacked a male complainant, causing him extensive facial injuries. A female who attempted to intervene in the altercation also sustained injuries caused by the Applicant and co-defendant; (e) the remaining violence offences recorded on the Application’s criminal history were perpetrated against his former wife over a period of approximately 8 months from October 2004 to June 2005. The offending predominantly occurred in the presence of the couple’s infant child and involved the following acts: (i) on 7 October 2004, the Applicant punched the complainant under her eye and on her back. He also threatened to slit the complainant’s throat and smash her head through a window; (ii) on 28 November 2004, the Applicant held a fist to the complainant’s face while she was holding their child and threatened to kill her. A witness pushed the Applicant away. The Applicant then retrieved a large knife from the kitchen and the witness punched the Applicant numerous times to disarm him; (iii) on 20 June 2005, the complainant went to pick up the child from the cot and the Applicant threw a book at her which struck her on the back of the head and hit the wall. The complainant sustained a lump on her head; -- 5 of 9 -- 6 (iv) on 22 June 2005, the Applicant headbutted the complainant when she was holding the child which caused her nose to bleed. The complainant’s injuries were observed by police at the time. [18] These offences were committed in breach of an existing Domestic Violence Protection Order which had been issued on 12 August 2004. According to the Respondent, the Applicant resorted to extremely intimidating, harassing and violent behaviour in both domestic and social settings. The Applicant had a propensity for violence when faced with conflict and when feeling aggrieved and this was a particularly relevant factor in the assessment of whether this was an exceptional case. [19] The Respondent also submitted that because of the multiple convictions for dishonesty, property and drug-related offending, the Applicant had an entrenched disregard of the law and for the safety and welfare of those around him, including his children. [20] The Respondent acknowledged that the Applicant has taken some degree of responsibility for his offending and further acknowledged that the Applicant has taken active steps towards a more positive lifestyle and has sought professional intervention to assist him. In this regard the Respondent highlighted that the Applicant had not been charged with, or convicted of, any further offences in approximately 8 years. However, it was submitted that the Applicant’s submissions failed to acknowledge the impacts of his actions on the complainants, specifically on his ex-partner who was the complainant in relation to the multiple incidents of domestic violence. According to the Respondent, the Applicant had minimised his offending by stating that domestic violence arose because “she could not get her own way”. [21] The Respondent submitted that the Applicant had failed to demonstrate any insight into his understanding of its impacts on the children. The Applicant’s child was present in relation to many of the incidents of domestic violence and no doubt witnessed the physical and emotional impacts of the Applicant’s behaviour on the child’s mother. The Respondent submitted the aggressive, controlling and intimidating behaviour exhibited by the Applicant towards his ex-partner could also be considered demonstrable of an ongoing pattern of the type of behaviour he exhibited which resulted in his early conviction for unlawful stalking in 2004. In doing so, the Respondent relied upon the former Children’s’ Services Tribunal’s decision of Re TAA [2006] QCST 11 at [97] where the Tribunal stated: [97] An issue of insight into the harm caused in these incidents is a critical matter for the tribunal. 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 reoffend 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 upon the adults around them having insight into their actions and the likely effect on children. [22] The Respondent further submitted that whilst the Applicant provided material evidencing participation in a range of programs, he failed to outline any tangible strategies he would implement should he be faced with a situation of conflict in the future. It was submitted that the Applicant’s criminal history and associated material clearly reflected an individual with significant anger -- 6 of 9 -- 7 management issues which manifested in violent behaviour over an extensive period of time. Notwithstanding no further offending since 2005, it was evident that anger management and negative behavioural patterns were considered to be ongoing challenges for the Applicant as recently as 2009. Is the Applicant’s Case Exceptional? [23] The role of this Tribunal is to decide the matter afresh and take all reasonable steps to ensure that it has all relevant material before it. For example, the Tribunal can consider evidence of remorse and insight into the offending behaviour which was otherwise deprived of the Commissioner at the time of considering his decision. As stated earlier, the paramount consideration is the protection of children. [24] Being mindful of the obligations imposed under ss.226(2) of the Act, the Applicant’s criminal history includes convictions for the following offences: - drive whilst under the influence of liquor or drug, being 0.203%; - break, enter and steal x 7; - break and enter place with intent x 5; - steal and then break out; - enter or in premises with intent to commit indictable offence; - possession unlicensed concealable firearm; - false pretences; - receiving x 2; - wilful damage x 3; - possession of weapons; - drunk in a public place x 2; - possessing dangerous drugs x 3; - wilful destruction; - assaults occasioning bodily harm x 3; - common assault x 2; - without lawful excuse found in dwelling house or yard; - unlawful stalking; - breach of domestic violence protection order x 4; - contravene direction or requirement; - breach of intensive correction order; - breach suspended sentence x 3; - breach probation order; - breach community service order. [25] The Applicant’s criminal history also contains a conviction for “threatening violence – by words or conduct – at night”. [26] The Tribunal notes that the Applicant was sentenced to a term of imprisonment for the following offences:  3 months imprisonment for property-related offences committed in 1986;  12 months imprisonment wholly suspended for a period of 3 years for the offence of receiving in 1995. The Applicant subsequently breached the suspended sentence by committing property-related -- 7 of 9 -- 8 offences in 1998. The breach was proven and the Applicant was sentenced to the rising of the court;  18 months imprisonment wholly suspended for a period of 3 years for property-related offences in 1998. The Applicant breached the suspended sentence for property-related offences and was re- sentenced to 18 months imprisonment;  for possessing dangerous drugs, wilful destruction, assault occasioning bodily harm and wilful damage, the Applicant was subject to a Probation Order and a Community Service Order. He breached the Community Service and Probation Orders and was re-sentenced for the original offences. The Applicant was sentenced to 3 months and 12 months imprisonment, respectively for each offence;  2 months imprisonment for the further conviction for possessing dangerous drugs;  6 months imprisonment to be served by way of an Intensive Correction Order for the 2005 offences for common assault, assaults occasioning bodily harm, breach of order. The Applicant subsequently breached the Intensive Correction Order and was re-sentenced to 24 weeks imprisonment;  the Tribunal also notes that the court recorded convictions in relation to all of the offences. The penalties imposed for the other offences of concern including monetary fines with either a conviction recorded or no conviction recorded. It is noted that on 4 occasions the Applicant breached his suspended sentence, Community Service Order, Probation Order and Intensive Correction Order, which resulted in the Applicant being re-sentenced to actual imprisonment. The Tribunal accepts that this shows that despite being repeatedly punished by the Courts for his offending, the Applicant was not deterred from further offending suggestive of a disregard for the law during that period of time. [27] The Tribunal accepts that the Applicant cannot be afforded any leniency on the basis of youth, particularly in regard to offences committed for which he subsequently received convictions between the ages of 33 and 39. [28] Although the offences are offences other than serious offences for the purposes of the Act, the offences do no credit to the Applicant, particularly those matters of domestic violence including in the presence of his young child at the time. [29] At the hearing of the matter attempts were made to elicit responses from the Applicant about the domestic violence matters however the Tribunal found the Applicant’s responses were short, he blamed the complainant for his actions and he lacked insight into his actions. As a witness, the Applicant showed little emotion and was, at times, vague and guarded in some of his responses. As a consequence, he did not impress as an insightful or remorseful person, the effect of which results in an acceptance of the Respondent’s submission that the Applicant’s criminal history and the surrounding circumstances indicate that he has resorted to extremely intimidating, harassing and violent behaviour in order to resolve conflict in -- 8 of 9 -- 9 both domestic and social settings. The Applicant’s actions raise significant concerns about his ability to judge appropriate behaviour to the extent that he may react in a similarly violent, intimidating and/or impulsive fashion in the future, particularly in the presence of children. This reflects adversely on his ability to manage anger and otherwise present as a positive role model to children and young people who might come into his care. [30] The Tribunal is particularly concerned about the minimisation of the past domestic violence offences, in the presence of his then young child. [31] The Tribunal is cognisant of the Court of Appeal decision in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 49.4 Insofar as there are protective factors, the Tribunal considers that the Applicant has a strong, supportive partner; and he has had counselling to assist him with strategies to improve his communication skills, manage his feelings and set goals. However the Applicant’s risk factors: the ages of the criminal convictions; the circumstances of each offence; residual anger management issues; minimisation of domestic violence concerns; lack of remorse into past offending; and a pattern of disturbing behaviour evidencing a lack of foresight for the potential consequences of his behaviour and a lack of respect for personal boundaries. [32] Whilst it is commendable that the Applicant has not offended for a reasonable period of time, taking all of the matters into consideration, the Tribunal determines that the Applicant’s case is, to the requisite standard, an exceptional one. In the circumstances, the Tribunal has decided to confirm the Respondent’s decision of 14 March 2013 to refuse the application for a positive notice and issue a negative notice to the Applicant. Non-Publication Order [33] The Commissioner made an application for a non-publication order under s.66 of the Queensland Civil and Administration Tribunal Act 2009. The Tribunal is satisfied that the names of the Applicant, children and witnesses and the organisations named in the decision should be de-identified as it is contrary to the public interest. The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of Blue Card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.5 4 See also the recent decision of Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA at [5] – [8]. 5 See, for instance, DAC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 193 at [44]-[46]. -- 9 of 9 --