DLR v Commissioner for Children and Young People and Child Guardian [2013] QCAT 721

CITATION: DLR v Commissioner for Children and Young People and Child Guardian [2013] QCAT 721 PARTIES: DLR (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML220-12 MATTER TYPE: Childrens matters HEARING DATE: 19-20 June 2013 HEARD AT: Maroochydore DECISION OF: Member Quinlivan Member Murray DELIVERED ON: 20 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Commissioner’s decision is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant, and his child, and the names of the witnesses. The reasons are to be published in a de- identified format. CATCHWORDS: Childrens matters – Physical discipline of children – role of Commissioner APPEARANCES and REPRESENTATION (if any): APPLICANT: DLR RESPONDENT: Georgina Thomas representing the Commissioner for Children and Young People and Child Guardian REASONS FOR DECISION [1] DLR was found guilty on 17 June 2013 of unlawful assault occasioning bodily harm whilst armed. He is a strong advocate for the use of physical -- 1 of 12 -- 2 discipline on children as allowed by section 280 of the Criminal Code (Qld). The victim of his assault was his 14 year old daughter. Subsequently his Blue card was removed and he seeks to regain it. [2] DLR is a 55 year old man who was born in Stanthorpe, Queensland. He was divorced around 2004. He had been married to WS and they have 4 children DJ (17 years old), DL (16 years old), DOW (14 years old) and DOL (13 years old). [3] DLR grew up in Toowoomba as part of a family of 4 brothers and a sister. [4] DLR did well in sport at school but it was in Surf Life Saving that he really excelled. In 1981 he made the Australian team and subsequently won a number of Australian titles. [5] He graduated from the University of Queensland in 1978 with a degree in Human Movement studies. Somewhere between 1984 and 1987 he became a practicising Christian and subsequently met his wife. They were married in 1992. [6] With the help of his wife they founded a youth organisation working with at risk children. [7] In 1999 the family moved to the Sunshine Coast where their fourth child was born in July 2000. In 2002 WS announced that she was leaving the marriage. DLR says that she had started to show signs of extreme agitation and stress about 6 months earlier. He spent 2 years thinking that they might get back together but in his opinion his wife had changed from the woman he had married 10 years earlier into an aggressive, manipulative and ruthless woman. [8] After separation DLR had the children with him every second week and they attended a Christian College until 2010. At this time DLR advised his former wife that he was unwilling to continue to pay the fees and as a result the children were required to change school. [9] DLR is extremely proud of all his children. At present DJ and DL live with their mother, DOW divides his time between both households and DOL and DLR „live quite happily in a farm surrounded with pets‟. [10] On 11 November 2011 an incident occurred at his home when he disciplined his 14 year old daughter DL with a bamboo stick. The Court brief of the incident, which DLR challenges, details the incident as follows: The defendant has walked into the lounge room and probably seen the complainant child using or hiding her Ipod. The defendant has taken the Ipod off the complainant child where the complainant child has stated “fucking hell”. The defendant has told the complainant child to go to her bedroom. The offender has then walked out to the back yard and cut off a piece of bamboo from a bamboo tree and has walked into the complainant‟s child‟s bedroom and hit the complainant child several times across the buttocks. -- 2 of 12 -- 3 At the time the complainant child was wearing clothing. The piece of bamboo has broken and the complainant child has made a smart comment. The defendant has then told the complainant child to take her pants off and to leave her underwear on. The defendant has walked to the bamboo tree again in the back yard and has broken off another piece of bamboo. The defendant has then walked back into the complainant child‟s bedroom and told the complainant child to remove her pants, where the complainant child has done this, leaving her in her underwear. The defendant has then told the complainant child to place her hands up against the wall. The defendant has used the bamboo stick and has disciplined or smacked the complainant child on the backside approximately 10 to 15 times, leaving red marks and welts on the complainant child‟s backside. The complainant child has repeatedly yelled out “I am sorry” and “please stop” to the defendant. In the end the complainant child has kicked at the defendant and as a result the complainant child and the defendant has ended up on the floor. The defendant has pinned the complainant child down. Complainant child stated “how many more times” where the complainant(sic) has stated “two more times”. Defendant has then smacked the complainant child on her backside twice with the bamboo stick resulting in the bamboo stick breaking. The defendant has then walked out of the complainant child‟s bedroom.” [11] DLR strongly argues for the rights of parents to physically discipline their children with reasonable force. In his original application to the Tribunal he states that he disciplined his daughter using principles he had studied and applied conjointly with his ex-wife before they were separated. He says he smacked his daughter on the clothed backside several times after she swore at him. He asserts that the case against him was based on misleading police statements, inadmissible personal opinions and false and exaggerated declarations some of which had already been contradicted in court. [12] As a result of his conviction he received a community service order and no conviction was recorded. He was required to perform 120 hours unpaid community service. [13] Due to an irregularity in the conduct of the trial, the trial Judge advised DLR on 19 June 2013, being the first day of this hearing that he may have grounds for appeal. In his submissions DLR confirms that „(t)here will be an Appeal in the Court of Appeal, based on the misleading information on the topic of Domestic Discipline in the booklet found in the Jury room. That is (the Judge’s) direction. There will be other enquiries associated with this matter‟. [14] At the commencement of the hearing of this application, DLR was given the opportunity to seek legal advice or an adjournment. After the matter was stood down to allow DLR to make further inquiries, he decided that he wanted to proceed with his application. -- 3 of 12 -- 4 What went wrong? [15] On 30 October 2007 and 30 October 2011, DLR had been assessed by the Commissioner and a positive notice and Blue card were issued. On 26 November 2012 the Commissioner issued DLR with a negative notice on the basis that DLR‟s case is an exceptional one in which it would not be in the best interests of children for a positive notice to be maintained. [16] DLR seeks a review of the Commissioner‟s decision. He points out that he is involved in the Surf Life Saving movement and he needs a Blue card to continue his involvement. [17] The offence for which DLR was convicted is not considered a serious offence under the Act and as a result the Commissioner must issue a positive notice. However, if the Commissioner is satisfied that it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person. It is this issue that the Tribunal must address. [18] The standard of proof on which the Tribunal must be satisfied is the balance of probabilities. However, there is no onus of proof on either the applicant or the respondent. 1 [19] The Tribunal is guided by the decision of Philippides J in Maher2, which requires that the Tribunal must seek to balance the risk factors against the protective factors. [20] The Tribunal is also guided by the judgement of Young CJ in Eq Commission for Young People v V3 (at [42]) where His Honour refers to the necessity to find a „real and appreciable risk’ to the safety of children. [21] In his response to the Reasons for Decision by the Commissioner dated 26 November 2012, DLR meticulously outlines the issues that he regards as relevant to his application for a Blue card. He expresses his disgust for the shallowness of the „investigations‟ by the Commissioner for Children and Young People and Child Guardian (CCYPCG) and their unprofessional, biased, reactive assumptions. [22] DLR argues very strongly that the „closing of his file‟ by Child Safety Services (CSS) has been overlooked by all those who proceed against him. He submits that the CSS reports „clearly declare‟ that there is no significant safety risk to children associated with him. He contends that the CSS investigations provide the clearest evidence of his innocence and good performance as a father. 1 McDonald v Director General of Social Security [1984] FCA 57. 2 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. 3 (2002) NSW SC 949. -- 4 of 12 -- 5 [23] DLR underpins his case by strenuously claiming that the lack of credibility and acknowledgement given by police and now the CCYPCG to a parent‟s lawful responsibility and right to discipline his children using „reasonable force‟ (including possibly “an implement”) under section 280 of Queensland‟s Criminal Code means that their approaches have no foundation of law. [24] DLR says that his next fundamental matter of concern regarding the Commissioner‟s Reasons is their weak investigative zeal, compensated by strong unprofessional assumptions. He claims that their refusal to interview him or any other professional in person or by telephone is inexcusable, unprofessional conduct of an enquiry of this nature and has had predictably inaccurate results. [25] In relation to a reference by the CSS regarding DLR showing „remorse‟ for his actions, he explains I am sorry this matter has affected my kids so negatively and for so long. I am not sorry I disciplined (my daughter). I could have handled the whole issue much more effectively if I had been more proactive and decisive in the weeks and months leading to the „crisis‟ incident; but I was pleased to have been quite self-controlled in a very difficult and unusual situation. DLR’s submissions [26] Following the hearing DLR provided submissions to the Tribunal on 15 July 2013. In his opening paragraphs he asserts that in fact the „whole thing‟ is a game and that he now realizes that he is dealing with „some very naughty girls (and boys?)‟ at the CCYPCG. [27] He alleges that the CCYPCG have told a lot of lies and that they have also been cheating. In particular he focussed on the evidence of the psychologist, Dr EJ and claimed that the CCYPCG misrepresented the nature of the document from Dr EJ as contained in the CCYPCG‟s Statement of Reasons. He says they relied on an „extensive‟ report that was never written. It was a „GP Thankyou‟ letter. [28] He alleges that the CCYPCG deliberately altered a document received from Dr EJ to support their case, by ticking a number of boxes in a transcribed document in the Commissioner‟s Reasons. He acknowledges that the representative from the Commission admitted that a mistake had been made but submits that it wasn‟t really a mistake but „the end of all their credibility‟. [29] DLR goes on to say that when he has been disciplining his kids, and „other naughty boys and girls‟ he has found that you have to rely on others telling you exactly what happened before you can make a judgement. [30] DLR describes the submission by the CCYPCG that he has a „lack of insight’ into his actions and the issues of discipline in working with children as silly. He denies that he lacks insight but he believes that the CCYPCG do. He points out that: -- 5 of 12 -- 6 What happens with undisciplined children is that they become very self-centred, disrespectful to others, unaccountable(sic) to no-one, and tell whatever story they like to get their own way. When it comes to “lacking insight”; do CCYPCG know how much trouble they would be in if everyone knew the trouble they caused a family by lying, tampering with evidence and refusing a Blue Card on this basis from a good father, coach and surf lifesaver? [31] He submits that people who lack insight are „close minded‟ whereas his mind is open to all ideas on child discipline and lots of things. He claims the CCYPCG seem extremely close-minded. He contends that the crazy thing is that his beliefs are confirmed by Queensland‟s law and that theirs defy the law. Therefore the CCYPCG lack insight. [32] DLR continues to assert that the CCYPCG are „playing games‟ and that their reasons would not make the cut for a kid‟s TV program, maybe Science Fiction or comedy. He asserts that once the issue with the psychologist‟s material was identified then the hearing should have ended there. [33] Finally he submits that the pressure is off the Tribunal because the CCYPCG are „disqualified‟ for telling such lies. Therefore they can‟t win and he must. He claims they haven‟t proved an “exceptional case” so under the rules, he gets his Blue Card. [34] In summary, DLR states „(t)he game has gone on long enough’. Section 280 Domestic Discipline law was reviewed in 2008 and has been left exactly as it has been since 1893. He contends that if he is refused a Blue Card he will have an undeniable case for another Appeal and to not be awarded a Blue Card after the misconduct of the CCYPCG would be a high „Miscarriage of Justice‟. He insists that the CCYPCG have not established their so-called “exceptional case”. The Commissioner’s position [35] The Commissioner reiterates the principle that the paramount consideration is a child‟s entitlement to be cared for in a way that protects the child from harm and promotes the child‟s wellbeing. It is to this consideration that all others must yield. [36] Further what amounts to an exceptional case must be such as to ‘… take it out and beyond the ordinary circumstances reasonably expected to occur’4, and must be ‘… of the nature of or forming an exception; out of the enduring cause, unusual, special’5. [37] The Commissioner says that what constitutes an “exceptional case” is a matter of discretion having regard to the totality of the information before the Tribunal and the consideration of the merits of each particular case. 4 In the Marriage of Sandrk (1991) 104 FLR 394 at 399-400. 5 Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288. -- 6 of 12 -- 7 [38] The Commissioner has outlined his considerations in relation to section 226 of the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act). [39] DLR has a conviction for the offence of unlawful assault occasioning bodily harm whilst armed. He has acknowledged hitting his daughter multiple times with a bamboo „training stick‟. [40] DLR is considering whether to appeal his conviction. The Tribunal must deal with the matter as is it presented. The Commissioner confirms that DLR was convicted and sentenced to 120 hours of community service. [41] The Commissioner submits that the Court was satisfied that the force used by DLR was not „reasonable under the circumstances‟.6 [42] The Commissioner contends that DLR‟s conduct is highly material to the assessment of his eligibility to work in child-related regulated employment. [43] The Commissioner points out that the offence is not defined as “serious” but that it occurred recently on 20 November 2011. [44] The Commissioner submits that when determining if this is an “exceptional case”, it is important to take into account that the complainant was DLR‟s 14 year old daughter. He hit her multiple times with a bamboo stick because she swore at him after he confiscated her iPod. He hit his daughter across the buttocks several times causing the bamboo stick to break. [45] When the first stick broke he obtained a second stick then asked her to remove her pants and at least one additional pair of underpants she had put on to try and reduce the impact before he resumed hitting her further multiple times. [46] A physical altercation occurred between DLR and his daughter and he hit her twice more causing the second stick to break. His daughter sustained physical injuries including red marks, bruising and welts to her buttocks. [47] At least one of DLR‟s children was present at the time and tried to intervene to stop his father hitting his sister. [48] The Commissioner also submits that in addition to the physical injuries, it is likely that the daughter suffered emotional harm as a result of DLR‟s sustained violent and intimidating conduct. Further he suggested that DLR‟s requests to remove her pants prior to the second incident would be likely to have made her feel shame and humiliation. Therefore the Commissioner contends that DLR has failed to recognise his duty and breached his parental responsibility to promote his daughter‟s welfare and protect her from harm. 6 Criminal Code (Qld) s 280. -- 7 of 12 -- 8 [49] In addition, the Commissioner submits that the presence of at least one other of his children has exposed that child to corporal violence, which is likely to have engendered fear and apprehension in the child both for his own well-being and that of his sister. The Commissioner argues that such conduct represents an extremely poor demonstration to his children about how to manage conflict and frustration, appropriately and safely. [50] The Commissioner submits that the material obtained from the Department of Child Safety details 3 child concern reports. He states that the central theme of these is DLR‟s use of corporal punishment/violence in relation to his children. His children were reported to be scared of him. [51] The Commissioner claims that in spite of intervention by the Department DLR has continued to defend the appropriateness and effectiveness of physical discipline and continues to promote his view that he has the right to use corporal punishment or violence as a form of discipline as a parent. The role of the Tribunal [52] The Tribunal is in the position of considering the matter afresh, and it may consider any new evidence in doing so and it may, on consideration of the matter, affirm the original decision, amend the original decision or set that decision aside and substitute its own decision.7 [53] The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children. Further, the decision is guided by the right of children to be cared for in a way that they are protected from harm and that promotes their well-being.8 “A real and appreciable risk?” [39] The task for the Tribunal in this matter is to determine if this is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice to DLR. [40] The Tribunal accepts that when considering if this is an “exceptional case” ‘(t)he proper approach to it is… to consider its application in each particular case, unhampered by any special meaning or interpretation’.9 [41] In order to determine whether there is a “real and appreciable risk” to the safety of children, the Tribunal has identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. 7 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) ss 20, 24. 8 CCYPCG Act ss 155, 360. 9 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. -- 8 of 12 -- 9 [42] According to Dr EJ, DLR scored within the normal range for emotional and social concerns and completion of the DASS-21 indicating he was experiencing levels of depression, anxiety and stress in the normal range. [43] DLR has no suicidal ideation. [44] DLR sought counselling from Dr EJ on a voluntary basis. [45] During a session on 3 September 2011 he stated „Anger management counselling might not hurt‟. [46] During the hearing DLR appeared to slightly moderate his position in relation to discipline for teenage children as opposed to younger children who he believes would still benefit from „loving physical discipline‟. [47] DLR is 55 year old and has no other criminal history. He has only been convicted of one criminal offence, two days before the hearing of this application. [48] DLR is extraordinarily open and assertive in expressing his views about physical discipline of children. He has produced to the Tribunal various publications promoting the use of corporal punishment on children. However the Tribunal has considered these documents and is unable to discern any balanced view expressed in any of these materials or by DLR. [49] On the other hand, DLR appears to have a very poor relationship with his former wife who he seeks to blame for most of his current problems. He described her as aggressive, manipulative and ruthless and accused her of committing herself to destroying his reputation, in order to justify her self-destructive decisions and personal unhappiness. By way of contrast, he does not acknowledge his own manipulative role in causing his children to be removed from the private school they had been attending and then in a disingenuous manner accuses her of dishonesty in trying to get them into a particular high school. [50] DLR has openly admitted his conduct when disciplining his 14 year old daughter on 20 November 2011. He is totally unrepentant about his actions although he has attempted to minimise the number of times he hit his daughter and the size of the stick he used. [51] In his submissions DLR has trivialised the entire Blue Card process and the role of the Commissioner for Children and Young People and Child Guardian. He has accused the CCYPCG of lying, tampering with evidence, incompetence, game playing, unprofessionalism and misconduct. It is the Tribunal‟s view that DLR has shown a complete disregard and respect for the role of the Commissioner. [52] He has demonstrated absolutely no insight into the impact of his behaviour on the personal, physical or emotional welfare of his daughter and her siblings. In particular there is not one expression of concern expressed in any material provided by DLR about the impact on his -- 9 of 12 -- 10 daughter of having to be interviewed by police about the treatment she received at his hands and to being photographed in a particularly humiliating manner. [53] The Tribunal notes that his two elder children appear to have voted with their feet and are now living with their mother, while the third child now spends relatively equal time with both parents and the youngest child resides with him. [54] While the Tribunal acknowledges DLR‟s right to exhaust his legal remedies when appealing his conviction, he shows no consideration or makes no reference to the possible impact on his daughter of a further legal process. The evidence from a Child Safety Officer HB was that DLR‟s regret about the incident had a lot to do with the social consequences it had rather than anything to do with his behaviour. [55] DLR has not undertaken any professional counselling apart from with Dr EJ regarding his actions and he has not provided the Tribunal with any independent professional evidence regarding any risk he may pose to the welfare of children in his care. Dr EJ made it very clear that he was not qualified to give an assessment about future risk or to give an opinion about DLR‟s eligibility for a Blue Card. Should DLR be granted a Blue Card? [56] The Tribunal is not satisfied that DLR has demonstrated any insight into his actions or behaviour. The experience of being charged, convicted and penalised has not led to any acknowledgement by DLR that his discipline of his daughter was not reasonable. [57] The Tribunal has been left in no doubt that DLR regards the use of corporal punishment as not only legal but also appropriate to discipline children. He did concede towards the end of the hearing that perhaps it was not effective once children become adolescents. [58] DLR asks the Tribunal to recognise the support he has received from numerous family, friends, professionals, including schoolteachers, health care professionals and other parents, none of whom suggest a single incident or reason to restrain his future working with children. He says that his referees were informed of his history and that they put their reputations on the line because they believe in him. [59] The Tribunal has taken into account the positive references provided by DLR. As might be expected they are all very positive towards him. They assert that he has positive interactions with his own children and other children, and that he has made positive contributions to his children‟s school communities and the Surf Lifesaving movement. The level of support DLR received from these witnesses is viewed by the Tribunal with some qualification. Some supporters admitted they knew little about what had occurred in the incident with his daughter and others showed little insight into the harmful effects of physical discipline, while -- 10 of 12 -- 11 believing that things can be blown out of proportion and should be dealt with privately within the family. [60] The Tribunal places substantial weight on the Commissioner‟s submissions that it must consider the best interests of children and not any detriment that DLR may suffer if he were not to get a Blue card. [61] It has taken into account that DLR has been convicted of only one offence that is not defined as a serious offence. [62] The Tribunal remains concerned that DLR still underestimates the seriousness of his firmly held beliefs and the impact that these have had on his children and potentially the disintegration of his family. He chooses not to acknowledge the role of the Commissioner and to trivialise the process, which is prescribed for obtaining a Blue Card. In this regard it is directly relevant to child-related employment. [63] The Court has not recorded a conviction but has imposed a penalty. It is not for the Tribunal to retry this matter, but to determine in this case whether the risks outweigh the protective factors. The Tribunal accepts that DLR may exercise his rights to appeal this decision. [64] The Tribunal is not satisfied about DLR‟s insight into his conduct and considers that he continues to underestimate and justify his responsibility for his behaviour. In his submission DLR says, I don‟t think they do much work down there at the CCYPCG. Maybe they are developing the X-box game down there. I can‟t wait till it comes out: I‟ll play it with my kids. “Commission for Children, Young people and Child Guardian”: sounds really cool if you say it with a deep voice like on “Dr Who”, doesn‟t it? One time they wrote me a letter, saying I had to see a Psychiatrist; not true, of course. I was so mad, and I told them so. Now I realise they were just stirring me, or something funny. [65] The Tribunal must consider the fact that a Blue card is transferable. It is not satisfied that DLR has expressed any motivation to address the concerns articulated by the Commissioner given that to issue a Blue card to DLR would result in him being eligible to work in Child related employment or conduct a child related business generally. [66] The Tribunal accepts the Commissioner‟s submissions that there are a number of factors that make DLR‟s case an “exceptional” case. [67] He hit his 14 year old daughter a number of times with a bamboo stick causing physical injuries. [68] His use of an instrument was unreasonable and disproportionate. [69] The assault and aftermath was humiliating and shameful for his daughter. [70] It is likely that his daughter suffered emotional harm and the incident appears to have also caused emotional harm to her sibling who attempted to intervene and assist her. -- 11 of 12 -- 12 [71] The evidence supports the conclusion that he has used corporal punishment with a „training stick‟ on many other occasions. [72] He continues to strenuously defend his right to use physical discipline and his actions in disciplining his daughter. [73] The applicant has failed to demonstrate any insight or remorse regarding his actions. [74] The Tribunal has considered all of these matters and has come to the view that the risk factors outweigh the protective factors to such an extent that this is an “exceptional case” where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to DLR. [75] The Tribunal orders that the Commissioner‟s decision be confirmed. [76] The Tribunal has determined that it is in DLR‟s children‟s best interests and in the interests of justice that a confidentiality order is made in these proceedings so that the children cannot be identified in any way. [77] Accordingly, pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicant, and his child, and the names of the witnesses. The reasons will be published in a de-identified format. -- 12 of 12 --