BJC v Commission for Children and Young People and Child Guardian [2014] QCAT 15

CITATION: BJC v Commission for Children and Young People and Child Guardian [2014] QCAT 15 PARTIES: BJC (Applicant) v Commission for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML092-13 MATTER TYPE: Children’s matters HEARING DATE: 22 August 2013 HEARD AT: Brisbane DECISION OF: Member Quinlivan DELIVERED ON: 17 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue BJC with a negative notice is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant, the names of the applicant’s child and the names of the witnesses. CATCHWORDS: Children’s matters – negative notice Commission for Children and Young People and Child Guardian Act 2000 APPEARANCES and REPRESENTATION (if any): APPLICANT: BJC represented himself RESPONDENT: Commission for Children and Young People and Child Guardian represented by Ms Louisa Keown -- 1 of 10 -- 2 REASONS FOR DECISION [1] BJC is a 54 year old man who has a passion for the sport of sailing. He has a particular interest in coaching and officiating at the Special Olympics. His aim is to gain employment as an instructor at his sailing club. [2] On 17 December 2012 BJC lodged a Blue card application in order to become a volunteer at the Special Olympics. At the same time applications were made by Special Olympics Queensland and Gold Coast Sailing Club Incorporated. [3] The Queensland Police Service provided the Commissioner for Children and Young People and Child Guardian with a copy of BJC’s criminal history. His history includes convictions for high range prescribed concentration of alcohol in New South Wales, breach of an order and breach of a bail condition in Queensland. [4] His history also includes charges for breach of domestic violence order and assault occasioning bodily harm whilst armed in Queensland. All of these matters are classified as offences other than serious offences for the purposes of the CCYPCG Act. [5] On 8 May 2013 the Commissioner refused the application for a positive notice and blue card and issued a negative notice to BJC. On 15 May 2013 he sought a review of that decision by the Tribunal. [6] BJC says that he requires a Blue card so he can continue his work at his local sailing club. He denies that he was convicted of anything “other than protecting my baby girl from harm by a diagnosed mentally ill person”. The role of the Tribunal [7] The Tribunal must consider this matter afresh. It may consider new evidence and it may confirm the original decision, amend the original decision or set that decision aside and substitute its own decision. [8] The Tribunal is required to make its decision based on the principle that the paramount consideration is the welfare and best interests of children. The decision is guided by the rights of children to be cared for in a way that they are protected from harm and their wellbeing is promoted. [9] The question for the Tribunal is to determine whether or not BJC’s past history is such that it should be regarded as an “exceptional case” where it is not in the best interests of children for a positive notice and Blue card to issue to him. -- 2 of 10 -- 3 What the Tribunal must consider in deciding an exceptional case? [10] Sections 221(c) and 221(2) of the CCYPCG Act provide that where a person has a conviction for an offence other than a serious offence the Commissioner and in this case the Tribunal must issue a positive notice to the applicant unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice. [11] The standard of proof upon which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v Maher & Anor1 the Queensland Court of Appeal at paragraph 30 adopted the submission that: “The Tribunal was required to be satisfied on the balance of probabilities bearing in mind the gravity of the consequences involved, that there was an exceptional case in which it would not harm the best interests of children for a positive notice to be issued.” [12] In a recent appeal decision of Eales,2 the Tribunal reviewed the decisions in the Maher3 and FGC4 and confirmed that the phrase “exceptional case” must be considered “in the context of the legislation which contains that phrase, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect”. Further the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation. In Eales, the Tribunal pointed out that: “What the Act does is to require an exceptional case being established if, for convictions other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act”.5 [13] The Tribunal also referred with approval to the comments of Philippides J. in Maher’s case which were also endorsed by the Tribunal President in FGC’s case) where she said, “the Tribunal found there were present a number of significant protective factors which constituted “exceptional circumstances”, such that it would not harm the best interests of children for a positive notice to be issued. It’s ultimate determination was made having regard to the criterion specified by the Act and its satisfaction that the criterion had been met. I can see no error in that approach”. [14] However the matters set out in the Act are not to be considered in isolation. Section 226 allows for decision makers to consider anything else relating to the commission or alleged commission of an offence that 1 [2004] QCA 492. 2 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCAT. 3 CCYPCG v Maher & Anor (2004) QCA 492. 4 CCYPCG v FGC [2011] QCATA 291. 5 Ibid at 12. -- 3 of 10 -- 4 the Commissioner reasonably considers to be relevant to the assessment of a particular applicant. What did BJC do? [15] As outlined above, BJC’s criminal history includes convictions relating to charges of high range prescribed concentration of alcohol in New South Wales (1997) and “breach of order – respondent served with order” (2011) and breach of bail condition (2011) in Queensland. He has also had charges for breach of domestic violence order (2001) and assault occasioning bodily harm whilst armed/in company (2009) in Queensland. [16] BJC advised the Commissioner that he refuted the drink driving offence because it did not relate to him. There was no independent evidence given to support this claim. Further he said that he “saw no reason to explain in the next couple” referring to the 2001 and 2009 charges as they were thrown out. [17] Turning to the charge of breach of domestic violence order in 2001, the police report indicates that BJC allegedly removed his defacto partner’s clothing and attempted to have sexual intercourse with her. His partner reportedly resisted his attempts and as a result he is alleged to have slapped her to the face and dragged her across the carpet of the unit. [18] The police information notes that BJC admitted to slapping his partner to the face but denied that he dragged her on the floor. The Commissioner points out that the applicant has failed to address these issues and did not deny the admissions he reportedly made to police. However in his response to the Commissioner’s reasons, BJC says that “nothing physical had transpired.” [19] Regarding the charge of assault occasioning bodily harm whilst in company in 2009, the victim was his partner’s son from another relationship. He was temporarily residing with his mother and BJC. It was alleged that BJC and the son became involved in a verbal disagreement. After the incident BJC spoke to police who allege that he admitted hitting the complainant with a baseball bat. [20] In BJC’s response to the Commissioner’s reasons he points out that the victim was under the influence of drugs and had threatened his daughter. As a result he was forced to escort the person from the premises. The Commissioner says that BJC does not deny hitting the person with a bat. [21] The Commissioner expresses concern that BJC’s child was apparently present at the time of the incident and submits that the use of physical violence in the context of a domestic setting in the presence of the child is an aggravating feature of this incident. [22] In 2011 BJC was on bail for the earlier charge. A condition of the bail was that he not commit any further offences while on bail. The police report says that they attended a unit block and located BJC in an underground -- 4 of 10 -- 5 car park. On this occasion the victim was again BJC’s defacto partner who reported to police that the applicant had been drinking and she had gone to bed. The applicant entered her room and assaulted her by pushing her into the wall, kicking her in the backside and slapping her several times to the face. [23] His partner also alleged that BJC had struck her several times to the face with a closed fist causing her lip and tooth to bleed and causing injuries to her elbow and arm when she tried to protect herself. The police report indicates that the applicant told police that his partner had got in his face so he slapped her. [24] BJC admits to slapping his partner once on the cheek. The Commissioner contends that BJC’s response suggests that he got into an argument with his partner concerning the alleged sale of a gold chain to a pawn broker and that he was “forced to defend himself”. He also claims that his partner was obviously a danger to herself as well as him and possibly his daughter. [25] In summary the Commissioner submits that BJC was attempting to justify his actions and minimise his responsibility on this occasion by suggesting that he was acting in self defence or the defence of another person namely his daughter. [26] In response BJC claims that he was attempting to protect himself and his daughter. Again the Commissioner points out that this indicates that his daughter was present at the time of the offences, which is an aggravating factor. The Commissioner’s case… [27] The Commissioner submits that BJC admits that his relationship with his partner was volatile and toxic. He states that his partner was suffering from significant mental health issues and would regularly threaten self harm, would throw herself around and was violent towards him. [28] The Commissioner points out that BJC claims that his defacto partner’s mental instability directly contributed to the incidents of offending and alleged offending in his history, for example, regarding the first incident he claimed that he was required to restrain his partner to prevent her causing any injury to herself or any further property damage in the home. [29] BJC denied that he engaged in excessive drinking or that he had any problems with alcohol but stated that in fact his partner had a significant alcohol problem. He said that she was an extreme drinker and that he had accompanied her to Alcoholics Anonymous meetings in the past to address her problem. [30] The Commissioner submits that BJC’s denials are contrary to the evidence that he did have a problem and had abused alcohol. BJC did not provide any independent evidence to support his denials. -- 5 of 10 -- 6 [31] BJC denied that he had ever been violent to his partner but could offer no explanation as to why she took out domestic violence orders against him. He said that in fact she took out domestic violence orders against a number of people including neighbours. The Commissioner submits that this leads to an inference that BJC was attempting to minimise the basis for the order. [32] BJC’s former partner attended the hearing and gave evidence on his behalf. She said that she had suffered significant mental health issues over the course of her relationship with him and when asked about the specific incidents of violence that had been identified she stated that she couldn’t recall the incidents. She stated that instances of violence or conflict in her relationship with the applicant were minimal and isolated. [33] BJC’s mother also gave evidence and stated that she believed he had moved forward from the events of the past and he was mature and non- aggressive. She confirmed that he had been involved in a difficult relationship with his partner and that she had bipolar and suffered from mood swings. His mother said that he had been subjected to violent behaviour via his partner including one time when he was stabbed with a knife in his shoulder. His mother also claimed that he is a very loving father to his daughter and they have a good relationship [34] Towards the conclusion of her evidence, BJC’s mother disclosed to the Tribunal that his daughter had regularly been in and out of foster care. Any involvement with the Department of Communities, Child Safety and Disability Services had not been evident from the material before the Tribunal. It was considered that BJC’s involvement with the Department was highly relevant to the proceedings and a notice to produce was subsequently issued to the Department. [35] Subsequently, material was received from the Department of Communities, Child Safety and Disability Services. The Commissioner noted that the information confirmed that BJC and his partner became involved with the Department in around 2003. He submitted that that the material showed that a child protection notification was recorded in December 2003 where it was alleged that BJC had physically assaulted his daughter. Further concerns were expressed that he was an alcoholic and would verbally abuse his child on a regularly basis. At the time the notification was substantiated due to risk of the child suffering emotional harm. [36] It appears from the material that the applicant did not have contact with his partner or his daughter for a period of almost 5 years. [37] In 2009 further concerns were raised by the Department in relation to the wellbeing and safety of the child. On this occasion it was due to his partner’s mental health concerns. Around this time, BJC appears to have resumed contact with his partner and child. -- 6 of 10 -- 7 [38] The Commissioner contends that reference is made throughout the material to BJC having regularly engaged in domestic violence towards his partner. The material specifically states that their relationship was characterised by such violence. [39] The Commissioner expresses concern that although BJC was subject to domestic violence orders, he continually engaged in inappropriate and intimidating behaviours towards his partner. He says the material also suggests that BJC was the dominant partner and demonstrated controlling and aggressive behaviour that the Commissioner submits is characteristic of possible anger management issues. [40] The Commodore of the Sailing Club also gave evidence at the hearing. He confirmed that he has known BJC for approximately 2 years through his involvement with the club. He said that BJC had made positive contributions to the Club. He described him as honest and a hard worker. He was aware that he had problems with alcohol and with his former partner. However he did not indicate any real knowledge of BJC’s offending and alleged offending behaviour. [41] The Commissioner submits that it is not the role of the Tribunal to re-hear or determine the alleged offences. The role of the Tribunal is to determine what is in the best interests of children and young people. He says to do this requires a careful evaluation and analysis of the risks in order to prevent future potential harm to children and young people. [42] The Commissioner contends that the evidence demonstrates that BJC has a propensity for violence when faced with conflict or when feeling aggrieved. He claims that BJC constantly attributed all the incidents of violence to his partner’s mental health issues. [43] He claims that there are many inconsistencies between BJC’s written and oral evidence and that BJC continued to minimise the seriousness of the events that occurred. [44] The Commissioner also argues that the Tribunal can be satisfied on the balance of probabilities that the various incidents occurred because of the various admissions made by BJC in the records maintained by the independent authorities. [45] The Commissioner asserts that little weight can be afforded to evidence of his former partner because of her inability to recall details that had previously been provided to the Police and the Department. The Commissioner also reminds the Tribunal that it appears that BJC’s daughter was present during the alleged incidents. [46] The Commissioner submits that to issue a Blue card to BJC means he would be free to work in any child related employment or business regulated by the CCYPCG Act. Further a Blue card cannot be issued conditionally to work as a volunteer or a paid employee with a sailing club. -- 7 of 10 -- 8 [47] The Commissioner says that BJC fails to acknowledge any responsibility for his actions despite the conflict between his current versions of what occurred and the independent records and previous admissions made by him. [48] The Commissioner says that BJC has failed to demonstrate any level of remorse for his conduct and alleged conduct and he has failed to demonstrate any significant level of insight into the impact of his conduct on the other people involved. He has not expressed any concern that his actions may have resulted in emotional and physical harm on his former partner, her son or more particularly his own daughter. [49] When challenged regarding these matters, the Commissioner submits that BJC failed to reflect on his actions and identify anything he might have done differently in the circumstances. [50] The Commissioner also points out that BJC failed to provide any professional evidence regarding the issues of his insight, any risk or protective factors, triggers for offending and preventative strategies employed by him to reduce the risk of further offending or harming behaviour. Should BJC be granted a Blue card ? [51] The Tribunal must grant BJC a Blue card unless it is satisfied that this is an exceptional case in which it would not be in the best interests of children to do so.6 In making this decision, the welfare and best interests of children are paramount7, as is their protection from harm and promotion of their wellbeing.8 The Tribunal has considered the factors described in the legislation9 and other relevant matters that are particular to this case.10 [52] BJC submits that his involvement with the sailing club provides him with the opportunity to help with the improvement and well being of all concerned. He says it is of great significance to him. Due to his personal circumstances a few years ago when he broke his leg he could not foresee a bright future but because of his involvement with sailing, his quality of life has improved beyond measure. [53] BJC says with respect to the concerns expressed by the Commissioner that he is a person who by nature avoids conflict. He says that can defuse verbal abuse appropriately and he has no wish to be involved in physical conflict. He claims he is someone who would rather “take one for the team” rather than be involved. [54] He describes the past troubles with his relationship with his former partner as having been put in the past. He says that the only contact they now 6 CCYPCG Act s 221. 7 CCYPCG Act s 5, 6. 8 CCYPCG Act s 155. 9 CCYPCG Act s 226. 10 CCYPCG v Lister (No 2) [2011] QCATA 87. -- 8 of 10 -- 9 have is in compliance with Family Court orders. He says they both get on quite well now that they are not living together. [55] BJC points to the overwhelming support that he has received from people at the sailing club particularly from the Commodore. He says that he now lives in a quiet loving environment with his daughter and mother. [56] There is no evidence that BJC has acted inappropriately since around April 2011. [57] BJC has not expressed or demonstrated any remorse or regret over his behaviour but he has indicated that he regards the future as bright and that he will avoid conflict in the future. The Tribunal is concerned that that he has not expressed any insight or concern into the impact of his conduct on his former partner, her son or more particularly his own daughter. [58] The Tribunal is particularly mindful of the submission by the Commissioner that the evidence demonstrates that BJC has a propensity for violence when faced with conflict or when feeling aggrieved. [59] The Tribunal finds that there appear to be many inconsistencies between BJC’s written and oral evidence and that BJC continues to minimise the seriousness of the events that have occurred. [60] The Tribunal has carefully considered all of the material presented and is satisfied on the balance of probabilities that the various incidents occurred or that incidents of a similar nature happened. [61] In assessing whether this is an exceptional case, the Tribunal has taken into account the apparent risk factors and protective factors, plus BJC’s level of insight into his behaviour. [62] BJC’s former partner gave evidence in support of his application but the Tribunal found her evidence to be lacking in substance and of little assistance. [63] Despite BJC’s assurances, the Tribunal is not satisfied that his daughter was not present during some of the alleged incidents. [64] The Tribunal accepts that to issue a Blue card to BJC means he would be free to work in any child related employment or business regulated by the CCYPCG Act. [65] The Tribunal finds that BJC has failed to accept any responsibility for his actions despite evidence that is in direct conflict with independent records and previous admissions made by him. [66] A Blue card would entitle BJC to have unsupervised and unfettered interactions with children. The Tribunal is not convinced that BJC would be able to manage those relationships in a protective way. -- 9 of 10 -- 10 [67] In the absence of any proper explanation for his past behaviour, and as BJC has not demonstrated a significant level of insight into the potential damage that can be done to children by witnessing or being involved in such incidents, the Tribunal finds that this is an exceptional case where it would not be in the best interests of children for BJC to be granted a blue card. [68] The Tribunal orders that the Commissioner’s decision be confirmed. [69] The Tribunal has determined that it is in BJC’s daughter’s best interests and in the interests of justice that a confidentiality order be made in these proceedings so that the child is not able to be identified in any way. [70] Accordingly, pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicant, and his children, and the names of the witnesses. The reasons will be published in a de- identified format. [71] The orders of the Tribunal are: 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue BJC with a negative notice is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant, the names of the applicant’s child and the names of the witnesses. -- 10 of 10 --