FA v Commissioner for Children and Young People and Child Guardian [2012] QCAT 499

CITATION: FA v Commissioner for Children and Young People and Child Guardian [2012] QCAT 499 PARTIES: FA (Applicant/Appellant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML243-11 MATTER TYPE: Childrens matters HEARING DATE: 30 May 2012 HEARD AT: Brisbane DECISION OF: G Quinlivan, Member DELIVERED ON: 14 September 2012 DELIVERED AT: Brisbane ORDERS MADE: The decision of the Commissioner for Children and Young People and Child Guardian made on 18 November 2011 to issue a negative notice and refuse the blue card application for FA is confirmed. CATCHWORDS: Whether applicant represents an unacceptable risk of harm to children – exceptional case – protective factors – risk factors APPEARANCES and REPRESENTATION (if any): APPLICANT: FA represented himself RESPONDENT: Commissioner for Children and Young People and Child Guardian (CCYPCG) REASONS FOR DECISION Background [1] FA seeks a review of the decision made by the Commissioner for Children and Young People and Child Guardian to issue him with a negative notice for a blue card. FA seeks to be issued with a positive notice and blue card -- 1 of 10 -- 2 that he requires if he is to be employed or is to volunteer in any capacity with children. [2] The application was heard in Brisbane on 30 May 2012. [3] FA is a 65 year old man. He was previously married to AC and they have 2 children – N who is 12 years old and W who is 10 years old. Both children live with their mother as a result of orders made in the Federal Magistrates Court in Brisbane on 27 August 2010. FA has ongoing contact with his children. Relevant law [4] The Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) gives the Queensland Civil and Administrative Tribunal jurisdiction to conduct a review of the Commissioner’s decision. On review, the Tribunal may:  confirm or amend the decision;  set aside the decision and substitute its own decision; or  set aside the decision and return the matter to the decision maker. [5] In its review jurisdiction the Tribunal must decide the review in accordance with the CCYPCG Act and the QCAT Act. In this respect, it has all the functions of the decision maker for the reviewable decision. The purpose of the review is to produce the correct and preferable decision, following a fresh hearing on the merits. In effect the Tribunal stands in the shoes of the decision maker and makes the decision afresh. The focus of the CCYPCG Act is the protection of children with their welfare and best interests being paramount. [6] The CCYPCG Act also sets out the procedures for deciding whether to issue a positive or negative notice. If the Commissioner is satisfied that it is an exceptional case in which it could not harm the best interests of children to issue a positive notice, then the Commissioner must issue a positive notice. The CCYPCG Act does not define the term “exceptional case”. However it is well established that determining whether a case is an exceptional case is a matter of discretion having regard to the merits of the individual case and the factors to be taken into account. In determining whether a case is an exceptional case in circumstances when a person has been convicted of or charged with an offence, the Tribunal, standing in the Commissioner’s shoes, must have regard to the factors set out in the CCYPCG Act. [7] The matters described are not to be considered in isolation. There may be other factors that may be relevant to determining whether a case is an exceptional case. One factor to be considered is whether an applicant presents an unacceptable risk of harm to children. Harm is defined to have the same meaning as it is given in the Child Protection Act 1999. -- 2 of 10 -- 3 [8] In Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 the Queensland Court of Appeal endorsed the approach taken by the former Children Services Tribunal which then had jurisdiction for reviews in assessing the risk of harm to children by identifying and balancing potential risk factors and potential protective factors when considering whether circumstances amount to an exceptional case. The evidence FA’s criminal history [9] As part of its decision making process, the CCYPCG obtained a police criminal check relating to FA. The history shows that FA has a criminal history spanning from February 1981 to September 2011. He has been convicted of a variety of offences. [10] The details of the charges, review of the charges and the outcomes are as follows: Date Offence Outcome 26 February 1981 Possession of firearm in a manner likely to cause alarm on 23 November 1980 Fined $60.00 10 February 1983 Stealing on 9 February 1983 Fined $100.00 restitution $10.00 27 July 1983 Wilful and unlawful destruction of property on 23 May 1983 Probation 12 months restitution $9.54 9 January 1990 Breached domestic violence order (5 October 1989) Convicted probation 9 months 26 June 1995 Breach Bail Act (contempt) Convicted and not punished 24 October 1996 Indecent assault with circumstances of aggravation (on or about 19 May 1995) Nolle Prosequi entered 17 March 1997 Enter dwelling house with intent (29 October 1994) Wilful and unlawful damage to property 29 October 1994 Assault occasioning bodily harm whilst armed with an offensive instrument (29 October 1994) Wilful and unlawful damage to Nolle prosequi entered Nolle Prosequi entered Conviction recorded recognisance $750.00 and to be of good behaviour for 3 years -- 3 of 10 -- 4 property (18 July 1994) 12 June 2003 Behave in a disorderly manner (on 14 March 2003) Convicted and fined $100.00 14 September 2010 Breach of order – respondent present in Court on (23 October 2009) No conviction recorded recognisance $500.00 good behaviour period 12 months 29 November 2010 Breach of order – respondent present in Court (22 October 2010) Breach of order – respondent present in Court (24 October 2010) On all charges: no evidence to offer 10 May 2011 Breach of order – respondent in Court (on 4 January 2011) Recognisance forfeited $500.00 resentence for original offence: conviction recorded not further punished (re breach of/application against order imposed on 14 September 2010). Conviction recorded fined $900.00 14 September 2011 Breach of order – respondent present in Court (on 1 September 2011) Current charge [11] In relation to the proceedings dated 24 October 1996 regarding an indecent assault with circumstances of aggravation on or about 19 May 1995 details were provided as follows: The applicant was 47 years old at the time of the alleged offence. The complainant was a 42 year old female and the applicant’s former wife. The circumstances which gave rise to the complaint were that sometime after midnight on 19 May 1995 the complainant was in the lounge room of the complainant’s residence when the applicant attended at the house. The applicant, complainant and the complainant’s son had a conversation and the complainant’s son subsequently went to bed. The applicant allegedly took the complainant into her bedroom and put his penis in her mouth. The applicant was later spoken to by police but declined to be formally interviewed in relation to the matter. [12] On 23 August 2011 the Director of Public Prosecutions provided the following information to the Commission in relation to the decision not to proceed with the charge: -- 4 of 10 -- 5 On 24 October 1996 in the Brisbane District Court a nolle prosequi was entered in relation to an indictment charge in the applicant with one count of indecent assault with circumstances of aggravation. The Indictment related to an offence allegedly committed in 1995. The decision not to proceed on the indictment followed a careful consideration of a number of factors. The matter had been listed for trial on two previous occasions and on both occasions the trial was not reached in the Court list. As at 24 October 1996 the next available trial date was March 1997. The applicant had already spent 12 months in custody on remand for the offence and it was likely that, should the matter proceed to trial and result in a conviction he would not be required to serve any further time in custody. In addition the complainant in this matter indicated that she was no longer willing to proceed. Given the above factors it was deemed that the continued prosecution of this matter was not in the public interest. [13] The Tribunal notes that the alleged offence of “indecent assault with circumstances of aggravation” is categorised as a sexual offence in accordance with the CCYPCG Act. The offence is not categorised as a disqualifying offence. None of the other offences on the applicant’s police information are categorised as a serious offence. FA’s evidence [14] In his written application FA states: “I wish to be given a blue card for my church work were (sic) I play an important role in the general congregation and children’s ministry. I wish that some action be taken to end the traumatic experience with mistreatment that my two boys are experiencing.” [15] FA’s application was received by the Tribunal on 14 December 2011. On 24 January 2012, comprehensive directions were made by the Tribunal regarding the further conduct of the matter. In particular it was recommended that the applicant obtain an up to date psychological report from an independent registered psychologist or psychiatrist as to his suitability for child related employment. [16] At the commencement of the hearing the applicant appeared vague and confused and indicated that he was not relying on any materials. He was rambling and appeared unable to focus on the issues. [17] By way of introduction he spoke about various incidents including a breach of an order in September 2011 which resulted in him being placed in jail for 6 weeks. He described how he went for bail on three occasions through legal aid. However the Police objected to bail but told him that if he pleaded guilty that he would walk. [18] The applicant indicated that he brought the present application because a 10 year old boy wanted him to play, but he told him he couldn’t do it anymore. He said that the Lord had told him to bring the application and that he prays before he plays. The Tribunal understood this to mean that the reason for the applicant’s application was that he had been encouraged -- 5 of 10 -- 6 by a young member of the local church community to bring the application so that he could continue to play music and sing at church proceedings each week-end and that he felt that the “Lord” had encouraged him to do so. [19] Since neither parties had filed a list of witnesses they wished to call the hearing the Tribunal accepted that they would only be relying on written statements of witnesses and that no witnesses would attend the hearing. [20] At the hearing the applicant sought to rely on a large amount of material which he had been previously filed, consisting of correspondence to the Tribunal addressing various matters of importance to the applicant together with the following documents:  A letter from Pastor BM, Church Minister dated 19 October 2011;  A document headed affidavit signed by FA dated 6 June 2011;  A document headed affidavit signed by N but not dated;  A document headed affidavit and signed by “awa” but not dated;  A further document from Pastor BM dated 15 April 2011;  A statutory declaration signed by FA and dated 20 April 2011;  A further document headed affidavit signed by FA dated 1 September 2011;  A statutory declaration by FA dated 20 April 2011;  An document headed affidavit signed by RY dated 22 June 2011;  A document headed affidavit signed by FA dated 17 May 2011;  A letter from Pastor BM, Church Minister, dated 11 February 2012;  A document from FA received by the Tribunal on 15 February 2012;  A letter from NR, Church Clerk, dated 7 February 2012;  A handwritten document from FA dated 7 February 2012 together with various Court documents handwritten notations on them. [21] The applicant submitted that all his charges were without substance and that there was no concrete evidence to support them. He said that his first wife who was behind a lot of these matters suffered with pre-natal strangulation syndrome and that he had previously treated her through hypnotism but that she would never be better. [22] He pointed out that he had told the Tribunal Member on the previous occasion that “we are dealing with the salvation of young children”. When -- 6 of 10 -- 7 questioned by the representative from the Commission for Children and Young People and Child Guardian, the applicant said that he needs a blue card now so that he can play for the little children as a volunteer in his church. He said that the children are of all different ages and include his two children, N aged 11 and W aged 9. He says that he sees them every week-end and takes them to school. [23] When asked whether he had attended any counselling or other courses the applicant said that “no” he works on a spiritual level. He believes that “God speaks to his Pastor, BM, and that some people get instructions from God”. In relation to one particular incident involving a television set, the applicant indicated the Lord told him to go around so he went around through his concern for his boys. [24] In response to a question, the applicant said that he has a sense of humour but that after an accident that happened about 27 years ago he had difficulty controlling his anger. He has taken medication but has not attended any anger management courses. He then complained about corruption in the Philippines and said that in the end it all came down to prayer. He said that he was praying that the Tribunal would grant him a blue card. [25] When questioned further in relation to some of the incidents that had led to his various charges the applicant stated that, “all this stuff doesn’t mean anything to me it is all nonsense”. When asked about the effect on children of being exposed to domestic violence he said that he considers that it is terrible but that his children do know what is going on. [26] When asked whether it had an affect on his own children, he would not acknowledge that his children were present during any of the instances referred to in the material. The applicant dismissed or disputed most of the incidents referred to and pointed out that he has done missionary work and that he is angry that his former wife can get away with her allegations. He is disappointed with the legal system and he cannot deal with her mental problems. He is currently focussed on an alleged fraud in the Philippines. [27] In relation to a particular matter concerning the choice of his sons’ school he admitted that he had tried to “black mail” his son to come and live with him. [28] In the material provided by the applicant there are a number of items of correspondence from Pastor BM, supporting the applicant. In particular he acknowledges that he is fully aware of all the breaches of restraining orders that the applicant has had over the years and of other matters that have brought him before the Courts. BM indicates that he does not condone the applicant’s violation of the law and does not seek to minimise it in anyway. In spite of that he feels that the applicant is a person who is perfectly safe to work with children. [29] BM speaks of his observations of the applicant in company with his own children N and W and believes he relates well to them. He takes an -- 7 of 10 -- 8 interest in their school activities and shows the kind of fatherly love, tenderness and concern that any good father should have towards his children. He says that this love is reciprocated by the boys and in many ways the applicant is an exemplary father doing the best he can under the difficult circumstances of his marriage break up which he took very hard. [30] BM also points out that there are some winsome aspects to the applicant’s character in that he is a very jovial fellow who spreads a positive atmosphere in the company around him. He loves to sing and play his guitar in praise of God. The church Nominating Committee recognised his character and saw fit to recommend him to the role of an ordained deacon in the church. BM acknowledges that the applicant needs a blue card to be able to minister his gift of music and singing to the church children and that he would certainly trust the applicant to be in the company of any grandchildren he may be blessed with. BM fully supports the applicant in his application. [31] NR, Church Clerk, provided a further reference dated 7 February 2012. She acknowledges that FA has been a member of her church for approximately 18 months and is considered worthy of a position of deacon. She has never had any reason at all to question or feel uneasy in any way regarding his behaviour towards children. She confirms that she holds no reason to question his request to apply for a blue card which every church officer is required to hold. She requests that these matters be taken into consideration when reconsidering his request for a blue card on this occasion. The Commission’s submissions [32] The advocate for the Commissioner submitted that the evidence does not establish that an exceptional case has been established by FA. In particular, the advocate for the Commissioner referred to the ongoing nature of FA’s criminal offending as set out in the original reasons for the decision. [33] The Commissioner’s advocate identified ongoing concerns particularly in relation to the applicant’s lack of insight into his behaviour and its impact on his own children and other children. His relentless denial of responsibility for his actions and attempts to deflect blame to his former wives and their mental problems, his complete lack of remorse and his desire to justify his actions and minimise their impact are identified as high risk factors by the Commissioner. [34] In the Commissioner’s submission this minimising does not acknowledge his behaviour or the impact of domestic violence in any circumstance. The Commissioner’s advocate further submits that the applicant’s behaviour is an entrenched aspect of his life, that he demonstrates no anger management strategies and no willingness to change. He has not sought any counselling or rehabilitative assistance. His offending behaviour has continued up until recent times. -- 8 of 10 -- 9 [35] In relation to the supporting material provided by BM the Commissioner’s advocate acknowledges that BM has indicated that he was fully aware of the nature of the behaviour and concerns relating to the applicant but that he was not available as a witness at the hearing and therefore his evidence was not tested and therefore can only be given limited weight. In relation to the statement from NR the advocate submits that there is no indication in her statement that she has any knowledge of the applicant’s behaviour and offending and therefore the weight that can be attached to that is also questionable. [36] FA submits that a positive notice should be issued. In summary FA highlights that his children are subject to ongoing mental harm at the hands of his former wife, that he is completely blameless in relation to these matters and in his words “…there is no intention to deflect the blame, I lay the blame solely and squarely at the feet of these two women who were both diagnosed with a mental problem by a doctor.” Discussion and decision [37] The Tribunal must determine whether an exceptional case, in which it would not harm the best interests of children to issue a positive notice has been established. [38] FA’s evidence was the subject of considerable questioning by the Commissioner’s advocate. The Tribunal is not satisfied that he addressed any of the issues in a satisfactory manner. The Tribunal is concerned that FA did not provide an up to date psychological report from an independent registered psychologist or psychiatrist as to his suitability for child related employment for consideration in this matter. [39] The Tribunal has no evidence about FA’s psychological state apart from his own comments about how he thinks he is coping and dealing with situations as they arise within his current life. This is of particular concern given that FA has a history spreading over approximately 30 years of inappropriate behaviour. [40] Based on the evidence presented, the Tribunal identified some potential risk factors and some potential protective factors of FA following the example endorsed in CCYPCG v Maher. [41] Potential protective factors identified are: a. FA has some supportive relationships within his church; b. FA states that he wishes that his children have a good life; c. He appears to have a good relationship with his children. [42] Potential risk factors identified are: a. FA has a long history of offending with a matter still before the Court; -- 9 of 10 -- 10 b. Triggers that led to the offending have not been addressed through counselling; c. He lacks insight into his behaviour; d. He has not committed himself to any or any ongoing treatment; e. He has not expressed any remorse for his past actions. [43] The Tribunal must have regard to the relevant factors listed in the CCYPCG Act in deciding whether or not there is an exceptional case. [44] The Tribunal has only been presented with limited evidence about FA’s direct interactions with his own children and untested evidence regarding his contact with other children. FA did not avail himself of the opportunity to provide any other evidence about his history of offending and the strategies he might propose for dealing with his behaviour. [45] The police information that has been provided has been outlined above. FA has been charged with a variety of offences and has had convictions recorded with respect to some offences. At the time of the hearing there was still an outstanding matter before the courts. The evidence as set out in the reasons of the Commissioner regarding the various offences has not been seriously contradicted by the applicant and no attempt was made to produce any evidence apart from the applicant’s own analysis to support his own version of events. [46] The Tribunal is able to consider “anything else relating to the commission or alleged commission of the offences which it reasonably considers relevant”. The Tribunal considers that it is relevant that there is no evidence to suggest that the applicant has implemented any safeguards through ongoing counselling that might assist him not to revert to the sorts of behaviour that has characterised his life over the last 30 years. [47] Critically there is no demonstration by the applicant that he has any insight whatsoever into the impact of his behaviour on his own children or any other children. Conclusions [48] On careful consideration of all the evidence presented, the Tribunal is not satisfied that the FA has the necessary insight to deal with his inappropriate behaviour over many years. The Tribunal is not satisfied that he has made any changes to his life in recent years. [49] On the balance of probabilities, the Tribunal is not satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. [50] The decision of the Commissioner for Children and Young People and Child Guardian made on 18 November 2011 to issue a negative notice and refuse the blue card application for FA is confirmed. -- 10 of 10 --