CDA v Commission for Children and Young People and Child Guardian [2012] QCAT 563

CITATION: CDA v Commission for Children and Young People and Child Guardian [2012] QCAT 563 PARTIES: CDA (Applicant) v Commission for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML186-11 MATTER TYPE: Childrens matters HEARING DATE: 9 August 2012 HEARD AT: Townsville DECISION OF: Ron Joachim, Member Wayne Pennell, Member DELIVERED ON: 2 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Commissioner’s decision to issue a negative notice for CDA is confirmed. 2. The Tribunal prohibits the publication of the name of the applicant, the applicant’s witnesses and the name of any children of the witnesses. CATCHWORDS: Childrens matters – blue card – Review of decision of Commission for Children and Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – whether case exceptional – whether a risk of harm to children exists – whether non publication order should be made Child Protection Act 1999, s 9 Commission for Children and Young People and Child Guardian Act 1999, ss 6, 155, 221, 226 Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Kent v Wilson [2008] VSC 98 Re TAA [2006] QCST 11 -- 1 of 8 -- 2 R v Kelly [1999] 3WLR 1100 APPEARANCES and REPRESENTATION (if any): APPLICANT: CDA represented himself RESPONDENT: Commission for Children and Young People and Child Guardian was represented by Ms Karyn Alton REASONS FOR DECISION [1] CDA is the applicant in these proceedings. He applied for a blue card to volunteer at a boxing gym and at a rodeo club in north Queensland. He was issued a negative notice on 28 September 2011. This means his application for a positive notice and blue card was rejected by the Commissioner for Children and Young People and Child Guardian. [2] CDA has a long association with the boxing industry both as a boxer as well as a trainer. He has been involved in training children in boxing since 1991. His involvement in assisting children in rodeos commenced around the mid 1990s. He has also been involved in football training. [3] CDA has an extensive criminal history. This commenced in January 1964 and continued until May 2007. [4] The criminal history includes both charges and convictions for a range of offences. The more serious of these involve assault occasioning bodily harm, possession of drugs, using a carriage service to menace, harass or cause offence, breaking and entering, unlawful destruction of property and theft. [5] CDA acknowledged his lengthy criminal history but disputed the circumstances regarding some of his offending behaviour. CDA accepted that alcohol had been a significant factor in his offending behaviour. He described himself in the past as being a scum bag. [6] CDA applied to QCAT on 18 October 2011 for the Commissioner’s decision to be reviewed so he could obtain a blue card. [7] The application was heard on 9 August 2012. [8] CDA has convictions and charges for offences other than a serious offence under the Commissioner for Children and Young People and Child Guardian Act 2000. As a result the commissioner must issue a positive notice. However, if the commissioner is satisfied 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 that the Tribunal must consider. -- 2 of 8 -- 3 [9] Section 226 of the Act outlines the various factors that the Tribunal must take into account in deciding if CDA’s is an exceptional case. These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty. [10] The Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to the case must be considered to determine whether the facts of a particular matter constitute an exceptional case.1 [11] Section 6 outlines principles for administering the Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that the Tribunal must apply. Section 155 further 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” The evidence [12] DE gave evidence to the Tribunal by telephone. She is secretary of the local horse club. She said that she has known CDA for approximately seven years. Her only association with him is in relation to the horse club activities. She described how CDA would bring his grandchildren to the club and would help at clean up days and made trophies for the children. He would also take children on rodeo circuits. [13] She and the Committee had received a copy of CDA’s criminal record. She advised the Tribunal that she had seen no outburst behaviour at the club which caters for a wide age range from two up until adults. She noted that CDA had travelled long distances with children to take them to various events and that he helps at the club by assisting children on to the calves. [14] She noted that CDA’s grandson had been suspended from the club because of the grandson’s behaviour and that CDA had been requested by the club to work on certain matters with his grandson before his grandson could return. [15] DE advised that all the necessary steps had been taken and that CDA’s grandson had now returned to the club. [16] FJ gave evidence to the Tribunal that CDA had looked after her son X who had lived with him for approximately two years following the death of X’s father. She advised the Tribunal that CDA had never mistreated X and if it hadn’t been for him X would have got into a lot of trouble. 1 Kent v Wilson [2000] VSC 98. -- 3 of 8 -- 4 [17] FJ said she met CDA at X’s fathers funeral. She was aware of CDA’s criminal history in general but not of the details and she has not seen any matters that would concern her. [18] CDA said that he has turned his life around. He was on prescription medication for pain relief including morphine for approximately two years. He came off all of these drugs in 2009. He advised the Tribunal that following the charge in 2006 where he was found guilty of using a carriage service to menace, harass or cause offence he had stopped drinking rum and has a couple of beers per night. He said that prior to this he was a very heavy drinker. [19] In a DVD which CDA provided to the Tribunal about his life he stated that he was not a woman basher and hated drugs and drug users. In response to questions about why two of his charges involved assaults against women and why he had a number of drug offences he advised as follows:  On one occasion he was being attacked by five people including a woman and that woman suffered injuries as a result of him defending himself.  On the second occasion he was attempting to get his daughter out of a car and punched her boyfriend’s mother in the face. [20] He advised the Tribunal that he has never been involved with illicit drugs. His grandson had drugs at home which were apparently stolen and he “took the rap for his grandson”. On an earlier occasion when he was convicted for possessing dangerous drugs after pleading guilty, he claimed he took the rap for a young person. He stated that he has never hit a child and he has never had complaints from anyone about his treatment of children. [21] The Tribunal also had in evidence a report from a Psychiatrist Dr Keith Muir dated 19 January 2012. This report was prepared following a referral for a psychiatric evaluation. There was no formal testing undertaken and the evaluation took place over a couple of interviews. Dr Muir, who was not called as a witness, advised in his report that there would be no indication based on his examination that should be any concern about him having a blue card. Dr Muir concluded CDA does not have a diagnosable mental illness, although he has some interesting character traits but not enough to give him a diagnosis on DSM IV of the American Psychiatric Associations Diagnostic and Statistical Manual. [22] Also presented to the Tribunal was a certificate indicating that CDA had attended a course of six sessions on anger management. This certificate was dated 13 June 2012. In addition the Tribunal was in receipt of a brief report from Mr Peter McRae, a Clinical Psychologist of the Alcohol, Tobacco and Other Drugs Service from the District Health Service. In this report Mr McRae noted that CDA reported making significant changes in regard to his drinking practices over recent years and displayed pride in -- 4 of 8 -- 5 his efforts. Mr McRae concluded that CDA demonstrated a commitment to maintaining the positive gains he has made in order to support his family. [23] CDA advised the Tribunal that at the anger management course he recognised people who were similar to him twenty years ago. He advised that he rarely goes out and now walks away from trouble. He stated that the course opened his eyes a bit and that the course has quietened him down in that he does not yell at people anymore. [24] CDA made the following submissions to the Tribunal:  He wants to help children and he doesn’t want to see children getting into trouble.  He has respect in the town and will help anyone out.  He wants to do something to give something back.  He does not want to get into trouble and he doesn’t want kids to be on the street.  He submitted he is trying to do everything to be a respectable human being.  He has proven that he doesn’t want to get into trouble anymore. Why the Commissioner says CDA should not get a positive notice [25] Ms Alton advised the Tribunal that the test to be applied is that CDA must get a positive notice unless his is an exceptional case in which it is not in the best interests of children for him to have a blue card. [26] In relation to the report of Dr Muir her submission was that his final opinion should be tempered because the Tribunal has not heard oral evidence from him, there was no psychometric testing undertaken and that the report is largely one of self report. In this regard the Tribunal needs to consider how much weight should be given to it. [27] Ms Alton submitted that the Tribunal must accept the convictions on the criminal history noting that CDA does not deny any of them. The Commission continues to have concerns in relation to CDA’s insight. The Commission is also concerned about the contrast with CDA’s version of events in relation to the offences involving women and how this contrasts with the police evidence, particularly the incident involving his daughter where she was dragged out of the car. Ms Alton notes this was not an issue of self defence and that CDA’s behaviour was disproportionate to the circumstances. She also submitted that CDA overreacted in a heavily aggressive manner showing a lack anger control when he telephoned the police in 2006 in a very threatening manner. She submitted that this 2006 offence was recent and the nature of it was of concern. She accepts the recent changes in his lifestyle to which CDA referred in evidence. -- 5 of 8 -- 6 [28] Ms Alton referred to the long stretch of offending behaviour of CDA from teenage years to his late fifties involving alcohol. She contrasted this with the past six years where late in life there has been a relatively short period of non-offending. [29] Ms Alton submitted that in the DVD CDA minimises his offending and its impact on the victims, noting again that he responded in a disproportionate manner to the actions of others. She submitted that insight was an important factor in determining whether a person is likely to reoffend and referred the Tribunal to the case of TAA.2 [30] Ms Alton noted that CDA’s activities in relation to rodeo and boxing were commendable. [31] Finally she submitted that the Tribunal should, on the balance of probabilities, be satisfied that CDA’s is an exceptional case and should confirm the decision of the Commissioner. She also invited the Tribunal to consider whether a non publication order should be made using s 66 of the QCAT Act so that children can not be identified. Is CDA an exceptional case [32] We say it is. [33] The Tribunal must take into account the factors in s 226 of the CCYPCG Act in deciding whether an exceptional case exists. The Tribunal notes that CDA has a very long criminal history which involves a range of convictions and charges for offences including assault, drugs, using telephones to harass, stealing, breaking and entering. The offences were committed between 1964 when CDA was almost 14 years of age until 2007 when he was 57 years of age. None of the offences were against children, although there were occasions in which children were present when the offences or alleged offences took place. This occurred in relation to a small number of offences involving drugs and assaults. [34] The penalty imposed by the Court included jail terms, as well as significant number of fines. Some of the charges were dismissed or there was no evidence to offer. These however, are in the minority. [35] CDA accepts that his behaviour in the past was inappropriate and he expressed some sorrow for this in his application indicating he was not proud of what he had done. During the hearing he referred to himself as a “scum bag” when he was behaving inappropriately. [36] The Tribunal has identified potential risk factors and potential protective factors following the example in Commission for Children and Young 2 TAA re [2006] QCST 11. -- 6 of 8 -- 7 People and Child Guardian v Maher and Anor.3 The potential protective factors for the applicant, CDA, are:  There has been no violence against children.  CDA’s referees were very positive about his involvement with children.  He has been involved for a long period in sporting activities involving children and has provided significant assistance to both children and organisations through boxing and rodeo.  He has provided trophies for a long time for rodeo competitions.  He has given up alcohol and has not reoffended since then.  He has a long term friendship with a former girlfriend.  He has undertaken an anger management course albeit recently.  He has a strong desire to help others, particularly children.  He has taken himself off all prescription medication. [37] The potential risk factors are:  A lengthy criminal history of over 40 years.  Past alcohol abuse.  History of violence against both men and women.  Impulsivity and over reaction to circumstances leading to violence.  Limited insight into the impact of his behaviour on others. [38] The evidence from Dr Muir and the lay witnesses strongly indicate that CDA poses no risk of harm to children. The Tribunal found that CDA was an honest witness and was very open and frank in the DVD that he provided about his life to the Tribunal. [39] For a matter to be exceptional it must be different from the norm. It means the case is one that does not occur regularly or routinely.4 [40] CDA’s previous lifestyle and criminal history do not occur regularly. They are exceptional. There is relevance to child related employment because in some of his offending there were children present. [41] The Tribunal accepts CDA has changed his lifestyle and behaviour. However the Tribunal accepts the Commissioner’s submissions that he has excessively overreacted in the past, and that his very lengthy offending behaviour contrasts with a relatively short period of non- offending. 3 Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 4 R v Kelly [1999] 3 WLR 1100. -- 7 of 8 -- 8 [42] The Tribunal is not satisfied that CDA has demonstrated full insight into his offending behaviour. [43] The Tribunal is satisfied that CDA’s is an exceptional case in which it would not be in the best interests of children for him to have a positive notice and blue card. [44] The Commissioner’s decision to issue a negative notice is confirmed. Confidentiality and non publication [45] Ms Alton raised with the Tribunal the possibility of invoking section 66 of the QCAT Act so that the identity of children associated with CDA would be protected. [46] Reference has been to CDA’s grandson and the son of a witness. The Tribunal does not consider it appropriate that the public be able to identify them as they have a right to anonymity. [47] In these circumstances the Tribunal will make a non publication order in respect of the applicant’s name, the witnesses’ names and the names of their children in the interests of justice. These reasons will be published in a deidentified format. -- 8 of 8 --