Fa'Aoso v Commission for Children and Young People and Child Guardian [2010] QCAT 691

CITATION: Fa'Aoso v Commission for Children and Young People and Child Guardian [2010] QCAT 691 PARTIES: Mr Aaron Paea Fa'Aoso v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML038-10 MATTER TYPE: Childrens matters HEARING DATE: 26 July 2010 HEARD AT: Brisbane DECISION OF: Mr Mark Johnston, Presiding Member Ms Maureen O’Regan, Member DELIVERED ON: 26 July 2010 DELIVERED AT: Brisbane ORDERS MADE: [1] The decision of the Respondent made on 2 February 2010 to issue a negative notice is set aside. [2] The Tribunal directs that a positive notice be issued forthwith to the Applicant. CATCHWORDS : Suitability for blue card – past domestic violence and alcohol use – whether decision to refuse a blue card should be set aside APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Aaron Paea Fa'Aoso represented by Ms A J Hartley RESPONDENT: Commission for Children and Young People and Child Guardian represented by Mr Geoff Woodberry REASONS FOR DECISION Background to the proceedings [1] The Applicant is wanting to undertake volunteer work at the Church of Jesus Christ of Latter Day Saints, Bungalow. The Applicant applied for a Blue Card on 29 March 2009. In October 2009 the Respondent sent a letter to the -- 1 of 9 -- CML038-10 / Page 2 of 9 Applicant with a copy of his Police information, inviting him to make submissions about the Police information and why the Commissioner should not issue the negative notice to the Applicant. [2] The Applicant failed to make any submission and on 2 February 2010 the Commissioner issued a negative notice. [3] The Respondent’s reasons for coming to that decision are set out in a document entitled, “Reasons,” which is dated 1 February 2010. The crux of the Commissioner’s reasons are set out in paragraph 7.4 on page 6. The Applicant lodged an Application for Review dated 26 February 2010. In his Application the Applicant states as follows: My Police records do not contain any offences that are serious offences, and the circumstances surrounding the offences revealed do not reasonably constitute an exceptional case pursuant to s.1(iv) of the Act. This is evidenced by the fact that there have been long periods when no offences have occurred. However, I do accept that I failed to avail myself of the opportunity to make admissions with respect to my Police record, as was previously requested by the Commissioner. This occurred as a result of my work commitments – I pass them up – in the context of the volatile domestic relationship I was in from 2000 to 2008, with my second wife, that was provided to the Commissioner for consideration. I am now a single father and have the primary care of my son from my first marriage and my daughter from my second marriage. At no time have my children been subject to or witnesses domestic violence. The domestic violence that occurred in my second marriage must be considered in the context of the particular relationship. My second wife also perpetrated domestic violence against me. Orders were made in 2006. I was married to my first wife for five years prior to entering into the relationship where the subject domestic violence occurred, had a child with that first marriage. I maintained a close relationship with my first wife and there was never any domestic violence in that relationship. Accordingly, apart from one incident involving violence when I was 16 years of age, I have not been implicated in any violent situation until I entered into the relationship with my second wife when I was 25 years of age. Before I met my second wife, she had been in a succession of relationships where domestic violence was a feature of the relationship. My second wife herself had self-esteem issues and was hospitalized in 1998 for over-dosing on pills and she was also put on suicide watch at this time. My second wife did suicide in our family home in October 2008. Since that time I have committed myself to my fate, rarely drink alcohol, do not smoke -- 2 of 9 -- CML038-10 / Page 3 of 9 tobacco or other substances. All previous violent incidents in which I was involved resulted from the consumption of alcohol. I trust that the Commission will re-assess this decision with the benefit of more information about my previous offending in the context of the dynamics of my second marriage and the volatile nature of that particular relationship. I am now a best known Torres Strait Islander film and television actor. I play a role in a SBS TV series that just won two Australian film awards. I was also continually in the third series of this program. I have applied for a Blue Card as I have an opportunity of working in remote areas with indigenous children in health and education television programs. This has occurred as a result of my changing my life around in the past few years, despite the death of my wife. My application for a Blue Card should be reconsidered as my past behavior does not reflect on my current lifestyle and position in the community and does not amount to an exceptional case where a negative notice should issue. [4] The Tribunal conducted a Directions Hearing on 13 April 2010. We have misgivings about the process to this being set down for re-hearing. The Applicant’s legal representation involved with the Blue Card review process had sought the guidance of the Respondent and the Tribunal on how to best proceed. What resulted was, firstly, the filing of Affidavit material presenting what was perceived to be concerns. This involved Affidavits from the Applicant and Mr Gavin Jones ... Australia. [5] The witnesses weren’t made available for cross-examination by the Commission or the Tribunal. This is contrary to the normal practice in the Tribunal. This process also meant that other witnesses for the Applicant who might have given evidence were not produced to give evidence, and the only evidence that was given to the Tribunal was from the Applicant’s expert witness Chris Richardson. [6] This conduct which was effectively agreed upon by the parties tied the Tribunal’s hands. The Tribunal accepts the comments of, or at least comments of the Commission’s representative, that as an experienced participant in these hearings and the model litigant who has a role to assist the Tribunal, they must stop a recurrence of this embarrassing situation. [7] The Tribunal was of the view that it had enough evidence to proceed. A similar occurrence could produce an adjournment or worse. In terms of these proceedings itself, the Tribunal did receive fresh evidence in terms of affidavit material, report and evidence of Dr Chris Richardson and oral evidence of the Applicant. [8] If I turn to the affidavit of Gina Lauren Eaton, what she states is that she was a former wife of the Applicant, that she was married to the Applicant prior to his marriage in 2008, that there was one child of the relationship, born on 19 April 1995, who is 15 and now lives with the Applicant in Cairns. -- 3 of 9 -- CML038-10 / Page 4 of 9 [9] The Applicant and Gina were married on 25 April 1995 and remained married for about five years. They found themselves growing apart, going in different directions, so they separated in 2000. Since separation and subsequent divorce was obtained, they maintained a good relationship. There was no domestic violence during the five year relationship with the Applicant, and Gina says she had no reason to report the Applicant to the Police for any reason. [10] Despite her living in Adelaide and the Applicant living in Sydney or Cairns, they always facilitated the Applicant spending time with his child. She felt it was a good relationship from the outset and he has been a devoted father and there has been no intervention in his wife’s arrangements for their son. For many years the Applicant and I attended ... made the arrangement in 2008 that our son, Ikia, would live with the Applicant in Cairns, as the child was entering the teenage years and would be better off living in Cairns under his father’s supervision. [11] She finishes her Affidavit by saying that the Applicant is a great role model for their son. [12] The Affidavit of Gavin Jones, the Managing Director of the company ... Australia – it is the Aboriginal and Torres Strait Islanders Communication and Events ... Annual Indigenous Awards at the Sydney Opera House ... national magazines ... lifestyle. [13] Mr Jones states he has known the Applicant for a period of 13 years since 1997 when he came to Sydney to work as a dancer in an Aboriginal and Torres Strait Islander dance group. He’s also known his family and his other brothers and he says: Aaron has worked with ... Australia as a professional for many years. This is ... TV and a number of events with children, including dancing with young indigenous dancers at the Sydney Opera House. Aaron has also escorted children dancers from the Torres Strait Islands to Sydney on many occasions in his role as a well-know Torres Strait Islander dancer. [14] In paragraph 8 he states: Aaron has become a well-known actor, sportsman and role model for Indigenous people, particularly children. This is partly because of his healthy, drug-free lifestyle. Aaron has always interacted with children and young people in an appropriate and respectful way. [15] He goes on to say that, as a result of his long term professional relationship with Aaron and the family, and as a result of many positive experiences of Aaron working with children and young people over many years, he would have absolutely no hesitation whatsoever in employing Aaron in such a capacity in the future. He said: -- 4 of 9 -- CML038-10 / Page 5 of 9 At no time have I ever had any concerns about his behavior or the appropriateness as a role model for children, young people and adults. [16] He goes on to conclude that: In the absence of any negative issues in respect to his dealings with children, ... the opportunity to see him as a role model to children and young people, as there are a number of Indigenous health and life-style issues that can be addressed with the assistance of a strong community role model. [17] Aaron gave evidence in addition to the written statements that he provided for the hearing. He talked about the fact that his father had died of cancer when he was about seven years of age and that his grandpa died at the same time, and he was brought up by his mother and grandfather. Losing his father and grandpa caused some significant changes in his young life, and losing two significant role models in his young life resulted in many personal issues for him in his late teens, and he offended at 16 years of age as a result of those circumstances. [18] He talked about being involved in dancing at the age of 13, which led him to work in a restaurant, dancing at the ages of 14 to 15 ... wrong crowd, he was drinking, and unlawful assault charges occurred in the context of a nightclub situation. He ... other forms of alcohol, his judgment was impaired and he ended up with altercations, and he was charged. [19] In 1991 he had the opportunity to go the United States and participate in a Janet Jackson choreography program in LA. His success led to a number of incidents involving going from one Aboriginal family. The Applicant became involved with Gina Eaton and was married on 25 April 1995. He maintained the relationship with her for a period of five years and had a child, Ikia, who was born on 19 April 1995. [20] The Applicant has continued the relationship with his son and in 2008 he moved in to the Applicant’s household. Gina described Aaron as a great role model for their son. [21] The Applicant entered into a second relationship. He describes his second wife, Kia-Ora, as having been the subject of successive relationships in which domestic violence was a feature of the relationship. The relationship started well. They were living ... and he was working in security. It was only after her death that he got a real picture of the levels of violence that she had been subject to. [22] He described their relationship as intense. He explained that Kia-Ora was a very jealous person, and that as he was a very social person who made lots of friends. This at times caused tension between them. [23] After several months, things spiralled out of control and if he spoke to another women she became very angry. Things went from bad to worse. Kia-Ora started drinking heavily. He left and went to stay with his brother. -- 5 of 9 -- CML038-10 / Page 6 of 9 [24] He acknowledged that he had perpetuated domestic violence in the context of the relationship. He acknowledged that he was responsible for his actions. He went to Lifeline and undertook an anger management course, and he became involved with an Indigenous Men’s Group and he organized counselling for the relationship. [25] He demonstrated insight to the Tribunal on the effect of domestic violence on children and described how it could affect relationships. [26] The Applicant talked about pushing and shoving, he didn’t strike her or leave her with black marks. He conceded that psychological blows could be as damaging. He told the Tribunal that it had impacted on him and he recognized that it was not the correct behavior and it was not the way he was brought up. [27] He has worked with children in several different roles and has an understanding of the requirements of presenting as a model and knows that you have to have good principles as a leader. The Applicant has since made the statement that he is aware of the influence he has on his own children, children have always been part of his life ... death of his wife when she committed suicide, it was a huge blow that caused him to re-think his own life. [28] He became more active in his Church, obtained a level of success and changed his life. This included a decision to limit the amount of alcohol that he consumed. When entering into his next relationship he wrote up a couple of rules. One was no domestic violence, and two was no alcohol. The third was a strong commitment to his Church. [29] He called on Dr Richardson and organized her to provide a report, and Dr Richardson also gave evidence. In her report she said on page 1, in summary: The Applicant’s history provides evidence of his ability to turn his life around once he gained insight into the effects of any negative behavior then or attitudes. The first time this became evident was in the later years of high school when he adjusted to a point of being able to obtain an OP of 9, despite experiencing significant conflict and bullying because of his achievement in traditional dance. Most recent events which arose in evidence is his ability to ... turn the events of his life around relate to his acknowledgment that the use of alcohol had significantly ... conflict in his relationship with his second wife. He has in the last 17 months ceased using alcohol and has commenced regular attendance at Church. The events of the last two years have had a significant influence on him. He now cares for his two children and is seeking to continue with his acting career, in which he is a role model for young Indigenous children and he could potentially provide assistance for children through a variety of Indigenous organizations. -- 6 of 9 -- CML038-10 / Page 7 of 9 It would be unfortunate if he was not able to continue this aspect of his pursuits, because of the focus on the negative rather than the positive elements of his personal history. [30] On page 3 of her report, Chris Richardson has given her psychological opinion in relation to aspects 1 to 4 and says there is no indication of any of those being present in terms of his physical/psychological pathology. [31] She concludes her report by saying that: There is nothing from a psychological perspective that would preclude the Applicant from having contact with children. He has negotiated some very difficult periods during his lifetime, and now uses the coping skills learnt during those difficult periods to negotiate life’s challenges. Both currently and potentially in the future, he has on two significant separate occasions turned his life around and in the interim has become a successful actor, sportsman and father. It would unfortunate if he was not able to impart such knowledge to Indigenous children who are in significant need of quality role models. To focus on the negative aspects of his life, his past life, rather than focusing on the positive, such as his ability to survive negative experiences and adjust his life in a constructive and proactive way, would be likely to prevent those children ... [32] Dr Richardson has been a forensic psychologist for the past ten years. She has served on the State Parole Board and has experience of people ...: The fact that Aaron has been able to turn his life around was a significant factor in his favour. His ability to turn his life around will reflect on his behavior .... There is nothing in his profile that places children at risk. He has been able to alter his alcohol consumption to socially acceptable levels. His presentation is as a powerful person who presents in a very positive way. [33] Dr Richardson could not find any negative factors: If he falls back into depression and continues to take alcohol at inappropriate levels, this would have been of concern. Rather, he has organized to get support from his Church and to reflect upon his actions. He is a gratuitous person. He has the responsibility of ... His religious beliefs are a protective factor. He has shown that when a problem occurs, he will turn his mind to getting support. He knows the negative effects of alcohol. He is very proud of his culture and dancing has been very important to him. His desire to support Indigenous kids to show that they have choices is a positive factor. -- 7 of 9 -- CML038-10 / Page 8 of 9 He is a strong person who is striving to do the right things. [34] If we then move to the submissions of the parties, the Applicant’s solicitor talked about the early loss of role figures, father and grandfather, and the effect that that had upon him. He was the oldest of three boys. There was a pattern of conflict that he developed insight and chose to change his life and attended to do his Senior and achieved an OP9. [35] He’s maintained strong ties to family, his brothers, mother and grandfather, that he’s shown he has the ability to review his own actions and alter his life where he is going wrong, that he has an ability to adopt a positive approach. [36] He’s demonstrated remorse. He’s made admissions that his behavior has been inappropriate when he’s made the wrong choices. He’s tried to build bridges and strengthen his character, that the Church has helped him in terms of his personal character; that his brother, who is a Bishop of the Church in charge of children, is a very influential part in his life; that he gained success in his career and he’s avoided illicit drugs and has adopted an appropriate approach in relation to alcohol. [37] He accepts that domestic violence is inappropriate. He’s admitted that much of the issues with domestic violence were a feature of that particular relationship, and Dr Richardson gave evidence in that regards, too, as well as saying that in many ways he was as much a victim as a perpetrator. [38] The Commission notes that while there was a lot of information before the Tribunal that was not before the Commission, that one of the major hurdles for the Tribunal is that the Tribunal had to believe the Applicant as there’s no corroborative evidence before the Tribunal. There are the affidavits of Gina Eaton and Gavin James which support the Applicant’s capacity to look after children. Those witnesses were not put forward for cross examination. [39] The Commission’s representative didn’t make an issue in relation to that matter because of the particular way that the Directions Proceeding had been conducted. [40] The Commission submitted that in terms of the Tribunal’s determination or assessment of the Applicant’s character, that there were no other witnesses, that there was no other corroborative evidence saying that which was in the affidavits. [41] The Tribunal has heard that as a young person the Applicant has responded to racial slurs, but also knew that alcohol was a factor in relation to those offences. The Commission admitted that alcohol was a factor of the problems in relation to domestic violence. [42] The Tribunal accepts that evidence. The Applicant submitted that, to the Applicant’s credit, he has abstained from drinking alcohol. The Commission conceded on the basis of Dr Richardson’s evidence that the Applicant had the capacity to turn his life around and has had in fact done so. -- 8 of 9 -- CML038-10 / Page 9 of 9 [43] The two issues that the Tribunal had to focus on from the Commission’s point of view were the alcohol and domestic violence. The Tribunal accepts the submissions of the Commission that domestic violence and violence of any form is unacceptable to the society that we live in, and anyone who doesn’t have the right attitude in a way that imposes concerns as to the best interests of children. The Tribunal accepts in terms of that that the Applicant had shown insight and demonstrated remorse. [44] The Commission indicated that it would have been good to have someone from the Church, to have his mother or grandmother, and the Tribunal agrees with that. [45] There’s evidence of strong cultural attachments and ongoing success in his professional life. There was the stabilizing influence of religion and good supports, the fact that he had turned to supports, the fact that he had undertaken anger management and had tried to address his problems. [46] The Tribunal has thought long and hard about the issues, and its thinking in terms of its decision basically revolves around the following: the Tribunal has tested the evidence of Gina Eaton and accepted the evidence of Mr James. Both were people who have known the Applicant and seen his interaction with children over a significant period of time. [47] Their evidence was that the Applicant’s influence on children was positive and, more than that, the Applicant had the huge chance to play a very, very positive role that would benefit children by the work he was doing in Indigenous communities, giving young Indigenous children the information and choices to make better decisions and to offer them better health and other issues. [48] The impact of race and involvement in his culture is a significant protective factor. The Tribunal accepts the evidence of Dr Richardson, an experienced, registered psychologist, that there are many protective factors in the Applicant’s favour. [49] The Tribunal is prepared to accept the Applicant’s evidence because it is consistent with the evidence that the other witnesses have given, and which the Tribunal referred to earlier. He has demonstrated insight into his actions and taken steps to address the issues. [50] He has demonstrated remorse. The Tribunal finds he’s participated in Church, a real personal commitment, and as such a protective factor. [51] The Tribunal has much evidence before it of positive protective factors. The Tribunal has much more evidence before it than the Commission did. This gives the Tribunal a much better basis to assess whether or not the Applicant is an unacceptable risk or not. [52] The Tribunal is of the view that the weight of the evidence, and there is a preponderance of it if the Applicant’s evidence is accepted, which the Tribunal does, that he doesn’t constitute an unacceptable risk, and accordingly, the Tribunal has come to the view that it is appropriate to overturn the decision of the Commission and to rule that the Applicant be granted a Blue Card. -- 9 of 9 --