Aruba v Commission for Children and Young People and Child Guardian [2011] QCAT 468

CITATION: Aruba v Commission for Children and Young People and Child Guardian [2011] QCAT 468 PARTIES: Miss May Roseleen Aruba v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML197-10 MATTER TYPE: Childrens matters HEARING DATE: 19 September 2011 HEARD AT: Brisbane DECISION OF: Ms Louise McDonald, Member Elizabeth Benson-Stott, Member DELIVERED ON: 19 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision of the Respondent made on 5 March 2010 to issue a negative notice is set aside; 2. The Tribunal directs that a positive notice for a blue card be issued by the Commissioner forthwith. CATCHWORDS: Blue Card – exceptional case – conviction for non serious offence APPEARANCES and REPRESENTATION (if any): APPLICANT: Miss May Roseleen Aruba represented by Fiona McAdam of Aboriginal and Torres Strait Islander Community Legal Service (NQ) RESPONDENT: Commission for Children and Young People and Child Guardian represented by Murray Briggs REASONS FOR DECISION BACKGROUND [1] On 13 September 2009 the applicant applied for a blue card to the Commission for Children Young People and Child Guardian, (“the Commission”). -- 1 of 8 -- 2 [2] On 5 March 2010 the Commission issued a negative notice. [3] On 29 November 2010 the applicant filed an application for the review of this decision in the Queensland Civil and Administrative Tribunal, seeking also an extension of time. An extension of time was granted by the Tribunal on 14 December 2010. [4] On 23 August 2011 a compulsory conference was conducted. [5] The application was heard on 19 September 2010. The applicant is an indigenous woman who lives in the Torres Strait. Due to the remoteness of the location, the matter was heard by teleconference. The applicant’s first language is Creole; however, no interpreter was available to assist in these proceedings. [6] Present at the hearing was the applicant, Fiona McAdam her legal representative, and Murray Briggs from the Commission. LAW TO BE APPLIED [7] The Tribunal may consider a review of a decision under ss 18 and 19 of the Queensland Civil and Administrative Act 2009, and is empowered by section 24 of that act to: (a) confirm or amend the decision, (b) set aside the decision and substitute its own; or (c) set aside the decision and return the matter to the decision maker with directions the tribunal considers appropriate. [8] The Commission’s decision of 5 March 2010 was made prior to the amendments to the Commission for Children and Young People and Child Guardian Act 2000, in April 2010, and the Commission’s Statement of Reasons refers to the Act prior to its amendments. By virtue of s 455 of this Act, the Tribunal has applied the current Commission for Children and Young People and Child Guardian Act 2000 (“the Act”.) [9] Section 221 of the Act requires that the Commission must issue a positive notice if the offence is other than a serious offence unless exceptional case exits. If an exceptional case exists it must issue a negative notice. The Commission considered s 102(a)(2) of the former Act. The Tribunal must consider its equivalent in the amended Act at s 226. Specifically in determining whether an exceptional case exits the Tribunal must consider: (1) This section applies if the commissioner— (a) is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence. (2) The commissioner must have regard to the following— -- 2 of 8 -- 3 (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357,the court’s reasons for its decision; (b) any information about the person given to the commissioner under section 318 or 319; (c) any report about the person's mental health given to the commissioner under section 335; (d) any information about the person given to the commissioner under section 337 or 338; (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. [10] A conviction is defined at Schedule 7 of the Acts as “a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.” [11] Section 6 prescribes the framework of principles for decision making and this is re-emphasised in s 155. The paramount consideration in making a decision under this chapter is a child's entitlement to be cared for in a way that protects the child from harm and promotes the child's wellbeing. Harm includes mental harm by virtue of the definition of harm in Schedule 7 of the Act, being consistent with section 9 of the Child Protection Act 1999. [12] Exceptional cases are not defined, but the case law suggests that they are determined on a case by case basis, as a matter of discretion, see Commissioner for Children Young People and Child Guardian v Maher and Anor [2004] QCA 492. Scherwin v Equal Opportunity Board (1994) 2 VR 279 held it is one that is “unusual”, “special”. [13] The principle that the welfare and best interest of children is the paramount consideration “to which all other yield” was confirmed in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. The family law test of risk of unacceptable risk of harm to children has been adopted by the Children Services Tribunal in considering whether an exceptional case exists. OAA Re (2006) QCST 142 applied in Johnson v Commission for Children Young People and Child Guardian. This unacceptable risk test has been -- 3 of 8 -- 4 endorsed as a “fitting comfortably” with the decision making approach under the Act, where the paramouncy principle prevails in both jurisdictions in OAA Re [2006] QCST 14 at paragraph 43. EVIDENCE Commission’s case [14] The Commission was informed by the applicant’s criminal history which notes a conviction for assault occasioning bodily harm arising from an incident on 11 May 2008 and the Queensland Police Service (QPS) Court Brief dated 21 August 2008 pertaining to the QPS investigation of the events of that date. The applicant did not provide any submissions to the Commission to argue the case against the issue of a negative notice. [15] The Commission considered that an exceptional case existed because the details of the offence as recorded on the QPS court brief indicted that the applicant was wielding a cane knife against the victim, and threatened to strike her with it. The Commission considered this material characterised the attack as a sustained violent attack, from a mature aged person who should have had the maturity to understand the seriousness of her behaviour. The Commission noted that the brief referred to dragging the victim along the ground and returning to punch the victim after time which could have provided a cooling off period. [16] The Commission argued that it was a recent incidence of violence. There was no evidence of anger management or alcohol counselling, and that the details suggested an unacceptable risk to children existed. Applicant’s Case [17] The applicant provided evidence on her behalf that she was a responsible and respected person within the small community in which she lived. She was born on Thursday Island and grew up on Boigu Island. She is educated to year 10. She has 10 children aged between 7 and 19 years. [18] Each of her children is in school or training. She is involved in the community through church activities and school activities, and active in community ceremonies. [19] Her evidence indicted that over the past 10 years she has been involved in raising her children and assisting to look after her brother’s children from time to time. Now that her youngest child is at school she aspires to work as a child care teacher, as she considers herself most skilled in the area of child care. She has been actively involved in the local church, assisting directly with the Sunday school children for two to three years until she was issued a negative notice. She has previously been active in the Parents and Friends Association. She indicated that she had a number of family members and church representatives whom she relied upon as support people, who were proximate within the small community. -- 4 of 8 -- 5 [20] She indicated that it was unusual for her to be drunk, and that she occasionally drank alcohol. The community operates under alcohol restrictions. [21] She indicated that the incident was a one off, and arose out of a family conflict with the victim. The children were asleep in their beds during the incident. She now lives harmoniously in the community with the victim, and she has apologies to the victim, who has in return apologised to the applicant for the harm caused to her. [22] The Tribunal notes Ms McAdam’s observations that availability of the council chambers to enable the hearing to proceed by teleconference was an unusual occurrence, and an indication of the respect in which the applicant is held in the community. It notes her further observation that the neither the applicant nor her family have been involved in other incidents, with the exception of a single juvenile issue with one young son. [23] The applicant’s witness Gausa Dau is a senior community member and senior teacher at the school. He stated that he had known the applicant since she was a baby and sees her every day, at school when she delivers and picks up her children. He also sees her at the shops on weekends and generally around the small community. He stated that she consistently delivers the children to school and that this was not always typical of other parents. He stated that the offence was out of character and was surprised to hear that she had and he was aware that the applicant had not been involved in any other aggressive acts either before or after the event of 11 May 2008. He indicated that the remote island community with a population of 240 people most of who were related, was aware of each other’s activities through gossip, and it was unlikely that he would be unaware of any incidents given the nature of the community. [24] He described the applicant as a loving and caring mother, who was not a violent person, and not prone to anger. Rather, she was quiet in nature, and not known to argue with people. He was surprised that the applicant was involved in the incident. [25] The tribunal considered Mr Dau was a respected senior person in his community and formed the view that he was a reliable witness. [26] The applicant submitted that she pleaded guilty to the assault the details of which were on a letter from her solicitor in those proceedings considered by the judge. This correspondence between the defence lawyer Michael Meyers and Cairns Prosecutions notes that the plea of guilty was on the basis: “May Aruba was “attempting to release (the sister) from the complainant’s grip, on my instructions this accounts for the assertions of dragging and tearing of clothing…” -- 5 of 8 -- 6 May Aruba “had initially gone out to the street and was exhorting the complainant to stop it. She instructs that she became involved in the physical contact with the complainant when she realised the complainant was not letting go of (her sister and continued to try to pull her to the ground While May Aruba was trying to release (her sister) from the complainants grasp the complainant reached up and grabbed May Aruba’s T-Shirt and pulled down. She instructs that she had at this point not delivered any blows to the complainant whosoever but was rather involved in the struggle with eth a drunken person with the intent of pulling (her sister and now herself to the ground. The T shirt was torn offending where May Aruba’s modesty was offended and she ran back inside and put on another T-shirt. She then came out onto the street and punched the complainant to the face. The punch was with the left hand to the forehead. She instructs that she delivered the punch out of anger with the complainants conduct. She accepts that she may have caused injury as described in the QP9. On his basis I would recommend to May Aruba to plead guilty to assault occasioning bodily harm.” [27] Correspondence from Fiona McAdam to the Tribunal dated 5 September 2011 indicates that these above facts “were those read out in court for sentencing, not those in the QP9”. [28] This information was not available to the Commission in their decision of 5 March 2010. DISCUSSION OF THE EVIDENCE [29] In the absence of any court transcripts from the proceedings conducted in this remote community, it appears that this was the basis of the plea of guilty and subsequent conviction. [30] The Tribunal notes the established law that the Tribunal cannot go behind a conviction of guilt. Further, the Tribunal is of the view that the facts before the court were not those contained in the QPS brief, but those agreed between the prosecutions and defence as the basis of the plea noted above. The conviction is not assault occasioning bodily harm in company, nor are there any convictions for using weapons as alleged by the QPS brief relied upon by the Commission. The Tribunal does not consider it is going behind the conviction of guilty in respect for the specific plea for the single assault by way of the punch. [31] The Tribunal accepts the applicant’s evidence that her plea of guilty pertained to the punch of the victim and further also notes that the conviction is one consideration. In OAA Re [2006] QCST 14, at paragraph 45, the Tribunal, in considering unacceptable risk to inform whether an exceptional case existed, stated -- 6 of 8 -- 7 “The Tribunal makes it clear that the application of the unacceptable risk test is not restricted to a consideration of the circumstances of the persons charge. Other matters may be taken into account as well and indeed these matters may be decisive irrespective if the findings of the Tribunal in relation to the charge.” [32] Having regard to the section 226 considerations the Tribunal notes: [32.1] The applicant has a conviction for assault occasioning bodily harm. [32.2] The offence is not a serious offence within the meaning of the Act. [32.3] The offence of assault occasioning bodily harm was committed, but other allegations of wielding a cane knife were alleged and never tested in court and not part of the basis of the plea of guilty because the police withdrew the allegations before the Court. [32.4] The offence in May 2008 is relatively recent, but the Tribunal notes that there have been no subsequent offences since that time. It is noted that the applicant was mature aged when this occurred. [32.5] The offence itself was not directly relevant to children. The assault was upon an adult in an internal family conflict. No children were witness to the assault. [32.6] The penalty imposed for the conviction is no conviction recorded, a good behaviour bond, Recognisance of $500. The Tribunal accepts that the submissions of Ms McAdam that the routine penalty for this offence is probation and anger management education, and that the absence of this penalty reflects that it was a one off incident. [33] Other factors considered relevant include: [33.1] The tribunal considers that this was a one off incident in the context of an internal family dispute. While alcohol was consumed the night of the offence, there is no indication that the applicant has ongoing alcohol problems or anger problems which would make her a risk to children. The applicant has admitted shame about the event, and has reconciled with the victim who has in turn apologised to her. [33.2] The applicant has a strong connection to family and community and is an apparently respected member of the community. It is noted that she is viewed as a responsible parent and has no other criminal history. She has a history of community -- 7 of 8 -- 8 involvement through church, cultural and child related activities. These reflect strong protective factors. [33.3] While there is some indication of risk factors, namely the mature age of the applicant at the time of offence, and the relative recency of the offence, these are balanced against the protective factors. There has been no recidivism, which reduces the weight of these risk factors. [34] The Tribunal has formed the view that there is no evidence to suggest that the applicant poses an unreasonable risk of harm to children. The balance of the evidence suggests this is an isolated incident of aggression in the context of a family conflict. [35] Therefore, the Tribunal considers that this is not an exceptional case in which it is not in the best interests of children to issue a positive notice. As no exceptional case exists, and the offence is not serious, a positive notice must issue. -- 8 of 8 --