AB v Commissioner for Children and Young People and Child Guardian [2012] QCAT 472

CITATION: AB v Commissioner for Children and Young People and Child Guardian [2012] QCAT 472 PARTIES: AB (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML180-11 MATTER TYPE: Childrens matters HEARING DATE: 19 and 20 July 2012 HEARD AT: Brisbane DECISION OF: Gwenn Murray, Presiding Member Murray Green, Member DELIVERED ON: 13 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian to cancel a positive notice and blue card and issue a negative notice is set aside and the pre- existing positive notice be reinstated. 2. The Tribunal prohibits the publication of the names of the applicant, the child, non-expert witnesses and the organisation in the decision relating to application number CML180-11 and the applicant’s current employer. 3. The applicant’s application for costs is dismissed. CATCHWORDS: Childrens matters – Blue Card – suitability to work with children – exceptional case – whether an exceptional case exists where no charges are made — non-publication order – Application for costs APPEARANCES and REPRESENTATION: -- 1 of 23 -- 2 APPLICANT: AB represented by Bosscher Lawyers and Benjamin Dighton, Barrister-at-Law RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Adele Noble REASONS FOR DECISION Background [1] AB had been working in a full time paid capacity as an administrator for a sporting association. He was also a coach. [2] AB has held a Blue Card for about six years. The last positive notice was issued to AB on 22 April 2011. [3] Allegations were made by a 14 year old girl (―the girl‖) that she had an intimate relationship with AB who was 24 years old. AB was providing private coaching sessions to the girl. She alleged they kissed, communicated on Facebook, she sent a photo of her bare breasts to AB‘s phone and he touched her breasts and vagina at his house on one occasion. [4] The police contacted the mother and the girl after receiving a child protection notification. The mother and the girl spoke to police on 20 November 2010 about the relationship and advised they did not wish to proceed with a formal complaint but reported the matter as AB held a Blue Card. Queensland Police Service (―QPS‖) conducted an investigation, AB refused to be interviewed by police. The result was no further action was taken by police except to inform the Commissioner for Children and Young People and Child Guardian (―CCYPCG‖) of the investigation on 27 June 2011. [5] On 9 August 2011 the Commissioner invited AB to provide information as to why his positive notice should not be cancelled and he be issued with a negative notice. [6] On the information provided, the Commissioner was satisfied that this was an exceptional case whereby the issuing of a positive notice and Blue Card to AB was contrary to the best interests of children and young people in the circumstances. AB was issued with a negative notice and his Blue Card was cancelled on 12 September 2011. [7] On 11 October 2011 the Tribunal received AB‘s application for review of this decision. Relevant legislation and case law -- 2 of 23 -- 3 [8] The jurisdiction to hear and determine this review matter is established under the Queensland Civil and Administrative Tribunal Act 2009 (―QCAT Act‖) sections 6 and 9 and Chapter 2, Part 1, Division 3. The Tribunal stands in the place of the original decision maker under section 19(c) and is able to consider material not previously available to the Commissioner under section 28(3). The Tribunal must ensure that it has, as far as is practicable, all relevant material before it. [9] The object of the Commission for Children and Young People and Child Guardian Act 2000 (―CCYPCG Act‖) is to promote and protect the rights, interests and wellbeing of children in Queensland (s 5). [10] The Tribunal is required to consider the same principles as the Commissioner and is also bound by section 360 of the CCYPCG Act where a determination on review focuses upon the principle that the welfare and best interests of children are paramount. This paramount principle is encompassed and reinforced under sections 5, 6 and 155 of the CCYPCG Act and it is this consideration to which all others must yield1. [11] The Commissioner made her decision to issue a negative notice and cancel AB‘s Blue Card pursuant to s 237(1)(b) of the CCYPCG Act that was based on investigative information referred to the Commissioner by the QPS. Section 305 of the CCYPCG Act provides that the Police Commissioner may decide that information about a person is investigative information and refer it to the CCYPCG. [12] Section 221(1)(b)(i) of the CCYPCG Act requires that the Commissioner must issue a positive notice to a person who has no conviction for any offence but about whom the Commissioner is aware of investigative information. The Commissioner therefore can only issue a negative notice if they are satisfied that this is an exception case (s 221(2)). [13] In deciding an exceptional case if investigative information exists, s 227 of the CCYPCG Act requires that regard must be given to when the acts or omissions constituting the alleged offence to which the investigative information relates were committed; and anything else relating to the commission of the acts or omissions that the Commissioner reasonably considers relevant to the assessment of the person. [14] The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities bearing in mind the gravity of the consequences involved2. [15] While the Tribunal must reach the required level of satisfaction based on the evidence, there is no onus of proof on either the applicant or the respondent. 1 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at paragraph 3 per MacPherson JA. 2 Ibid at paragraph 30. -- 3 of 23 -- 4 [16] In Maher’s case3 the Queensland Court of Appeal endorsed the approach taken by the former Children Services Tribunal of identifying and balancing potential risk factors and potential protective factors when considering circumstances amount to an exceptional case. [17] In Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 the Tribunal in its appeals jurisdiction4 considered the meaning of ―exceptional case‖. At paragraphs 31 to 34, the Tribunal states: [31] It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children. [32] There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that: ‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … . All these matters are matters of discretion’. [33] We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [34] This was, rather, a case in which the Tribunal was required to consider whether it was (in the words of former s 102(4), and now s 221(2) of the Commission Act) ‘… satisfied it is an exceptional case in which it would not be in the best interest of children’ for FGC’s positive notice to be continued. Investigation information [18] The CCYPCG requested the Tribunal to provide a notice to produce to QPS for investigation material. QPS provided CCYPCG with occurrence reports, police referral, activity log entries, transcripts of an electronically recorded interview with the complainant child and a transcript of a phone call between her mother and step father and AB recorded by the parents, and witness statements from: a. The girl and her mother, recorded by a police officer from the Child Protection Investigation Unit who received a notification with concerns about a relationship between AB and the girl. The police officer interviewed the girl and her mother. They were clear they did not wish to press charges against AB, but reported the matter as AB was a holder of a Blue Card. 3 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492. 4 The Tribunal was constituted by Alan Wilson J, President and Ms J Ford, Member. -- 4 of 23 -- 5 b. A guidance officer from a neighbouring school who met with the girl as the girl expressed an interest in talking with a female guidance officer. c. A parent and member of the Association (―the parent‖). d. A girlfriend and team member with the girl (―the team member‖). The complainant child and her mother [19] The complainant child (―the girl‖) was 14 years of age at the time she made allegations concerning the applicant, AB. AB was 24 years of age at the time. He held a full time paid administrative position with the sporting association (―the Association‖). He was also a player and a coach. He provided individual coaching to players, including the girl from time to time. [20] QPS became aware of the relationship as the girl told her girlfriend who was a member of her sporting team (―team member‖) and she told another friend and the girl‘s coach. Together these young women told the girl‘s mother and a teacher from school (who was a member of the sporting Association). A notifier informed QPS through the Child Protection and Investigation Unit. [21] QPS contacted the mother and the girl in relation to the matter. On 20 November 2010 police recorded statements by the girl and her mother. They told police they did not wish to make a formal complaint, but raised concerns in light of AB being a Blue Card holder. [22] The girl stated that she and AB started talking on Facebook, texting about private coaching arrangements and then they started to meet up in August 2010 for private coaching sessions. She said during coaching on 28 August 2010 they first kissed. She stated they met up again on 2, 6, 8, 10 and 14 September 2010 when they kissed on the lips. She said they also met around the corner, at the Association, he picked her up after school or he drove her to work and they kissed on these occasions. [23] The girl stated that on 22 September 2010 AB picked her up from her girlfriend‘s house and they were going to do some individual training but instead he took her to his house. She told police they went into his bedroom and she described his bed sheets and doona, trophies in his room and the bathroom. The girl‘s responses to the police officer‘s questions gave the impression she was reluctant or uncomfortable to describe what transpired between her and AB in his bedroom. Her responses were brief and general. She explained they removed each other‘s outer clothes and laid on his bed in their underwear. She said that over the course of three hours they cuddled, kissed and touched each others bodies. She said he touched her breasts and her vagina underneath her underwear and that she touched him all over his body. Afterwards AB took a shower to freshen up. -- 5 of 23 -- 6 [24] Her mother provided additional details in a statement about this event that her daughter had told her; such as that AB laid naked on top of the girl, she touched his penis, he tried to remove her underwear and his erect penis hurt her vagina as he pressed against her. There was no penetration, she asked him to stop and he did. [25] The girl also hand wrote a statement with the dates that she met with AB and when they kissed including the 22 September 2010 when they went to AB‘s house and were intimate. [26] The girl told police that she felt scared of getting caught while she was with AB in his bedroom as she knew they were not supposed to be doing this as it was illegal because he was 24 years old. [27] The girl stated that AB drove her home after this. She saw him again the following day but nothing happened. She said the last time she saw him was the next week when he drove her home after practice and they kissed in the car. [28] She stated that her coach (who apparently was also involved in a relationship with AB at the time) told her to end the relationship. The girl stated she sent AB a text message on 2 October 2010 that ―it‘s got to stop‖ and that he never replied. [29] On 4 October 2010 the girl‘s stepfather contacted AB by text message and asked him to telephone them. AB phoned the stepfather straight away. They outlined the allegations to him. The mother and stepfather recorded some of this conversation. AB does not make any admissions to a relationship with the girl. The transcript of the audio shows some words were unintelligible but AB generally states that nothing like what the parents were describing to him, had happened with the girl or any other girl and promised them anything between them would not have caused them any concern. He assured them that he would stay well away from the girl in the future. At times it was stated in the transcript that AB was sobbing during the conversation when the parents made accusations about any sexual intimacy between them. Guidance Officer [30] A witness statement was provided to police by a school guidance officer. She stated she met with the girl on 3 November 2010. The girl disclosed to her that she had been in a relationship with her coach who was 24 years old and that it was ―sort of sexual‖ she outlined the same details of the relationship to she provided to police later on 20 November. The guidance officer then told her she would have to notify the Child Protection Investigation Unit, Child Safety and the Executive Director of Schools due to her disclosure as well as a phone call to her mother. Association member and parent -- 6 of 23 -- 7 [31] A member and parent of the Association provided a Statement to police. She also provided a reference for AB to the CCYPCG. She stated that she has known AB for eight years as a player and coach. He has also coached her sons. The mother of the girl had telephoned her to tell her that AB had ―behaved in an inappropriate manner‖ and she was surprised by this. She could not recall the exact conversation but that she said the girl and AB had been in a relationship. She stated that she did not believe that AB would be involved in this sort of behaviour which upset the mother (that the girl was not believed). [32] The parent told police that she has never observed or heard of AB being unprofessional or involved in or had allegations made about him. She said he was well respected and admired by the Association and its members. [33] The parent stated that AB had advised her that he had been accused of having an inappropriate relationship with the girl, that he was contacted by her mother and stepfather and that they were going to make a complaint to police. He said he wished to step down from his responsibilities of coaching and all other roles within the Association as he did not want to bring the Association into disrepute. As far as she knew he has had no contact with the girl at all and has abided by his self imposed regulation. Team member [34] A member of the girl‘s team also provided a statement to police. She stated she has known the girl for about four years through the Association and they were playing in the same team at the time. She was some years older than the girl but considered herself a close friend. She also knew AB well, since he was seven years old and described him as the ―go to guy‖ who runs things and an elite program. He was coaching the senior boys‘ team. She stated that although he seems very nice he had cheated on girls in the past when in relationships with them. [35] The team member stated that the girl was staying overnight at her house a couple of months before the team member provided a statement to police and the girl confided in her about her relationship with AB. She said it was affecting her marks at school and her sport. She said the girl told her they had been sending text messages to each other since June or July 2010 and she had gone to his house and that ―sexual stuff had happened there‖. The team member reported that the girl had told her how they had kissed and touched each others bodies and genitals. She stated the girl also told her that she and AB had met at the Association and other club facilities for coaching where they had kissed. [36] The team member reported the girl attended a party at her house in August 2010 when she noticed the girl was missing from the party for a while. The girl had told her she had met AB around the corner although she did not see this. [37] The team member stated that the girl told her the messages from AB became sexual. He would tell her what he wanted to do with her and she -- 7 of 23 -- 8 showed the team member a photo she said he had sent to her phone of himself bare chested. The team member said the girl received 20 or so text messages from AB each day and she showed some of the messages to her. She said he also sent a photo of his penis but the girl didn‘t show her this photo. The girl showed the team member a photo of herself in her underpants and bare breasted and said she had sent this photo to AB‘s phone as he had asked her to send the photo to him. The team member said the girl told her she wanted to stop the relationship and was crying. The team member told the girl she needed to end the relationship with AB. [38] The team member then approached a mutual friend from the sporting team and the girl‘s coach for assistance. Together the three young women told the girl‘s mother about the relationship. She said the mother was upset and angry but invited them to her home to talk with the girl together. The team member stated it was a very stressful situation; the girl was angry and embarrassed they had told her mother and very reluctantly she verified the facts to her mother. [39] The girl has since told the team member that the relationship has now ended and AB is not to have any contact with the girl. AB’s Evidence [40] AB took an affirmation when he provided evidence to the Tribunal. He was 24 years of age at the time the girl made the allegations against him. He is currently a single man and resides with his parents. He described a close and positive family attachment with his parents, siblings and extended family. Since resigning from his position at the Association he currently works in his family‘s business that he has been actively involved in this since childhood. [41] Dr Hatzipetrou provided a psychological report to the Tribunal that sets out AB‘s social history which is relatively uneventful. AB verified this information to the Tribunal. In short, after completing high school AB completed a Bachelor of Business Management with a double major in Management and Marketing. From school reports he was considered cooperative, conscientious and well mannered. There were no reports of disruptive or antisocial behaviour throughout his life. AB reported achieving various academic and sporting prizes. He has been very successful as a player and coach in this particular sporting field. [42] AB reported a history of intimate relationships that appeared to be unremarkable. He reported a relationship with the coach of a women‘s team at the Association and that this ended due to the accusations made by the girl. [43] He was a full time administrator of the sporting Association for about five years. He has been involved with the Association about 18 years playing sport and for nine of those years he also coached junior and senior boys and girls. He has held a Blue Card since he was 18 years of age. -- 8 of 23 -- 9 [44] In more recent years he coached boys and young men in ‗A‘ teams and State teams. To a lesser extent, AB has also coached girls and young women at similar skill levels. [45] He described the Association as a tight knit community and it clearly has been an important and large part of his life. [46] AB told the Tribunal that it was common for him to provide individual or one-on-one coaching to players who were of a high skill level; this included the 14 year old girl who played in the women‘s State team. Most of the women in the team are aged between 18 and 21 years of age. AB and the Association do not charge a fee for his coaching. He undertakes coaching as a representative coach with the Association. [47] AB said he has on occasions driven the girl to and from coaching in his car. [48] AB said on 22 September 2010 the girl contacted him and requested coaching, to which he agreed. She then asked him to pick her up from her friend‘s house and drop her home afterwards as her parents were unable to transport her. [49] AB‘s evidence was that his grandmother usually attends his residence to care for the family dog as it is ‗an inside dog‘ and requires being let out of the house for toileting. His grandmother was apparently ill on this day and not able to attend to the dog. AB therefore needed to return to the house to let the dog out. [50] AB said that he remained outside with the dog but the girl was left unattended inside his home. He said that after about 15 minutes he drove the girl home and then he returned to work at the Association. [51] AB told the Tribunal that young people and their parents have been to his home to collect uniforms, drop off fees or attend annual BBQs he may have arranged in the past. [52] AB said that some time after 22 September 2010 he told the girl that he could no longer coach her due to work commitments. He said she didn‘t particularly react to this. [53] AB said that he first became aware of the allegations made by the girl when her stepfather sent a text message to him at about 9 pm on 4 October 2010 and asked him to call them. AB telephoned them straight away. The parents informed him that the girl had told him that there was an inappropriate relationship between them. [54] AB said he was shocked when the parents made the allegations to him. [55] AB denied to the Tribunal that there was any incident of sexually abusive behaviour or attempts to engage the child in conduct of a sexual nature. -- 9 of 23 -- 10 [56] AB said his relationship with the girl did not go beyond a friendship. He denied there was an intimate or affectionate relationship between them. He said he did not kiss her, didn‘t hug her and never touched her body. [57] AB told the Tribunal that all players and parents (possibly 700 people) have his mobile phone number and would frequently contact him this way. He said the girl had sent him text messages to arrange individual coaching for her and he would have provided her with two or three coaching sessions. [58] AB told members of the Association, including the President, the Administrative Assistant, that the allegations had been made about him by the girl, that the parents had been in touch with him and they may report it to the police. [59] AB said he imposed restrictions upon himself immediately as he did not want the Association brought into disrepute. He immediately took two weeks leave from his position. He told them that he would have no contact whatsoever with the girl and would change his coaching arrangements. In conjunction with the Association members he changed the nights that he coached so as not to have contact with the girl. [60] AB said he took protective steps and made sure he had an adult with him while at the Association. He resumed coaching high school boys‘ teams. [61] AB said he was very upset and stressed about the allegations and regretted he had left himself vulnerable to such accusations being made, that is, there was not another adult present when he was with the girl who could attest to his character or verify that nothing had occurred between them. [62] AB was clear in his evidence that he understood the responsibilities of a Blue Card holder and that it was to ensure the safety of children and to conduct oneself in a professional manner while supervising and working with children and young people. [63] AB said the organisation has a child protection policy, he doesn‘t have a copy and not aware of what the policy states in relation to allegations made by a child. [64] AB said the girl sent him a photo of her bare breasts and it ―came out of the blue‖. He said this was the only inappropriate text received from her and he was shocked by it. There was some discrepancy about the timing of receiving the photo. This is discussed further on. AB told the Tribunal he was unsure when the girl had sent him the photo but it was around the time the contact was made by the girl‘s stepfather. He also said it was only a short time before the parents telephoned him, he estimated it was within that week. He did not delete the photo until weeks later after consultation with his solicitor. He said he ignored it. AB said he told some members of the Association about the photo. Referees’ Evidence -- 10 of 23 -- 11 [65] AB provided the written references of eight people to the CCYPCG: GT, SM, IS, DM, LL, TJ, HG and MC. They are members of the Association and parents of children coached by AB. They provided evidence to the Tribunal by telephone under oath. [66] All of the referees spoke in glowing terms about AB. He was described by them as trustworthy, responsible and committed to the players and the Association. It was clear that AB gave a great deal of his time to mentoring and developing players‘ skills and the growth of the Association. All of the referees said their children respected AB and thought a great deal of him. They trusted him with their welfare and development. They spoke of him as an excellent role model for young people and someone who was admired as a sportsman and member of the community. [67] All of the referees were aware there was a child protection policy in the Association but not aware of its content. Each verified that no complaint about AB or the alleged relationship was made to the Association. [68] Each of the referees described how AB immediately reported that accusations were being made against him, after he received the phone call from the girl‘s mother and stepfather. He told some of them details of the allegations and he told others generally what was said to have occurred. They said he self imposed regulations about taking time off work, not having any contact with the girl, changing the coaching arrangements so he was not at the Association when the girl was attending and that at all times he had an adult with him when he was with any child or young person. They said he followed all restrictions and acted appropriately at all times. [69] AB completely denied to the referees, the allegations made by the girl. All of the referees believe AB‘s denial that anything improper occurred between him and the girl. The following is a summary of information provided by the eight referees. [70] GT has known AB for 18 years, they have a long friendship. She has been a manager of a team coached by AB. She said that AB defended the rights of children in the Association and stood up for them if he thought they were unfairly treated. GT said she firmly believed AB was no threat to children, she was not aware of any complaint made against him previously. [71] SM is Vice President of the Association and has known AB for 15 years from when they played in teams together, they have a long friendship. She told the Tribunal that AB told her about the allegations about when they were alone in his house and also that he received an inappropriate photo of the girl on his phone. SM told him to delete it. She did not see the photo. [72] SM said AB was very affected emotionally and physically by the accusations and that it destroyed him professionally. She has assisted him to ―reflect, learn and develop self belief to be able to move on from this‖. -- 11 of 23 -- 12 [73] SM said there was a primary concern for the child in question and she was taken care of so she felt she could continue to come to the Association. She said her mother also wanted the girl to be able to continue to play sport with the Association. [74] IS has known AB for 15 years as an assistant coach, team manager and through their families‘ businesses. They have a close friendship. IS said AB has never lost his temper with a child, he is a positive role model and acts protectively towards children and young people in the Association. He does not have knowledge of the specific allegations and he said he did not have to ask AB if it was true because he knew AB well enough to know, and as a parent, he also knew it would not be true. [75] IS works with offenders. He does not have qualifications in the behavioural sciences but considers he has experience in being around and observing sexual offenders and that AB does not exhibit any of those behaviours. [76] DM has known AB for 8 years, he has coached her sons. She has held various positions in the Association. [77] DM told the Tribunal that about a week after AB returned to his position, it became apparent that the girl was seeking out AB‘s attention and this was ―becoming an issue‖, so they made sure there was another adult around AB to ―protect both parties‖. DM said she and several parents witnessed the girl ―stalking‖ AB trying to get him alone. She said the girl was coming to the Association at times she didn‘t need to be on the premises or sporting area. It was noted by a couple of committee members that the girl was looking for AB and ―hanging around‖ and she was seen going into AB‘s office when there was no reason to do so, apart from seeking out AB. DM said that when the girl had attempted to make contact with AB he always walked away or contacted a committee member to let them know. [78] DM said the mother of the girl contacted her. She did not make a complaint but wanted to be sure the girl was able to return to playing sport and she would be protected. [79] DM told the Tribunal that in her opinion, it was a problem that the girl was 14 and the youngest in her team. She said the other girls were 18 to 21 years old who were going out, partying and some had boyfriends. She said the older girls were doing things that were not appropriate for 14 year old girls. She felt the girl required more parental supervision than she was receiving. [80] LL was a paid assistant to AB when he held his position as Administrator. She has also known him for about 10 years through coaching. She stated in her reference that AB has expressed ―remorse for what he has done and suffered from anxiety as a result of the outcome‖. She explained to the Tribunal that she meant he was sorry that he had found himself in this situation. -- 12 of 23 -- 13 [81] TJ has known AB for 10 years he was President at the time of writing the reference for AB. The first he knew of the allegations was on 20 March 2011 when he was contacted by the CEO of the State Association for this particular sport. He reported that a complaint was received in relation to AB, that a woman phoned anonymously and claimed AB had acted inappropriately with a young girl and that police officers had seized his computer. The CEO asked TJ in an email if there was any validity to this complaint. TJ provided the email to the Tribunal. [82] TJ said he immediately contacted current Board Members to see if they knew about the matter. They advised at least two current members (MC and SM) were 100% aware of it and were taking necessary actions to protect parties. They said they had investigated it, police were involved, no computers were seized and AB was seeking legal advice. [83] TJ understood the child protection policy was that everyone had to have a Blue Card with a registry kept, which was updated regularly. He was not aware that there was any policy about investigating any complaint made by a child or any allegations that concern a child. [84] HG has known AB for 6 years. He is currently the Registrar for the Association. He expressed support for AB and how much time AB has put into developing the Association. Apart from the fact that he believes AB that there is no truth in the allegations, it gave him comfort that the police investigated the allegations and they decided not to charge AB. [85] MC has known AB for about 5 years and has worked with him closely on a daily basis within the administration and operation of the sport. AB reported the allegations to him and it was decided that MC would be a chaperone when AB returned to his duties. MC told the Tribunal that he had noticed that when AB returned to work the girl had tried to attract his attention on several occasions and follow him. He said these actions and his knowledge of AB‘s character led him to believe the accusations were unfounded. He told the CCYPCG in his reference that if AB had his Blue Card withdrawn it would be a great loss to him but a greater loss to the Association and the local community in general. Dr Hazipetrou [86] On 27 February 2012 the Tribunal recommend that AB obtain an up to date psychological report from an independent registered psychologist or psychiatrist as to his suitability for child related employment to be filed in the Tribunal. Dr Hazipetrou is a clinical psychologist and member of the College of Forensic Psychology and made a report available on the first day of the Hearing. This report was not available to the Commissioner prior to this. Dr Hazipetrou interviewed AB on three occasions in conducting his psychological assessment. He also considered a range of material including the CCYPCG documents, QCAT material, QPS material, copies of witness statements, the transcript of the record of interview between police and the girl and various academic records of AB. Dr Hazipetrou was fully aware of the allegations made against AB and that the -- 13 of 23 -- 14 allegations went beyond one incident at AB‘s home with the girl and include allegations that there was an intimate relationship between them where they met and kissed on a number of occasions. [87] Dr Hazipetrou understood that the mother and the girl withdrew their formal complaint to police officers5. [88] Dr Hazipetrou was well aware of the CCYPCG legislation concerning Blue Cards and suitability to work with children and young people and its purpose. [89] Dr Hazipetrou provided a very thorough and comprehensive report and evidence by phone to the Tribunal under oath. This was of great assistance to the Tribunal. [90] It would appear that AB has an unremarkable history within the social norms. He experimented with alcohol at age 18 but did not continue to partake due to his commitment to sport, tertiary studies and his parent‘s business. [91] AB presented to Dr Hazipetrou with no features of anti-sociality, criminal versatility or clinical features of adult psychopathy. In contrast he presented with a cluster of protective factors including functional social support, history of pro-social behaviours, emotional resilience and effective copying mechanisms. [92] AB told Dr Hazipetrou that he consulted a psychologist soon after the allegation was made as he experienced persistent and increased anxiety and stress which impacted on his day to day functioning. He reported the consultation was beneficial. [93] Dr Hazipetrou applied a battery of psychological assessments which predominantly focussed on the presence and severity of psychopathology. These tests found no indications of somatic or cognitive complaints or emotional, thought, behavioural or interpersonal dysfunction. AB presented to Dr Hazipetrou as remarkably well-adjusted. He also found AB to display insight and sound judgement. [94] AB denied to Dr Hazipetrou any incident of sexually abusive behaviour or attempts to engage the girl in sexual intercourse. He denied any kissing or cuddling with the girl. He vehemently denied touching the girl on her breast or vagina. [95] AB disputed the photographic image of the girl‘s breast was requested by him. He said the girl had sent the image to him on his phone at her own volitation. He also denied sending her a photo of his penis. 5 Police contacted the mother and girl after receiving a child protection notification. When approached by police, the mother and girl said they did not wish to make a formal complaint but were concerned as AB was a Blue Card holder as noted earlier in these reasons. -- 14 of 23 -- 15 [96] AB claimed to be perplexed and stunned by the girl‘s accusations and the confrontation by her mother and step father. He was not aware the conversation was being recorded and was distressed at this finding. [97] AB told Dr Hazipetrou that he lost weight and could not sleep when he first found out about the accusations. He talked to Dr Hazipetrou about the impact on him and the distress he felt as a result of the unsubstantiated accusations. He thought this curtailed his lifelong devotion to the sport. He said it was difficult to manage in light of his track record in coaching and involvement with the Association, he felt a level of injustice against him. [98] Dr Hazipetrou discussed his risk assessment process. He told the Tribunal that it was important to understand that AB had not been charged with any offence and he denied the allegations against him. Dr Hazipetrou applied and adapted the Faithful Classification Scheme (FACS) which is not a risk assessment tool; rather it is a process to examine areas of risk categories people fall into when there are accusations but no conviction or charges. [99] In terms of risk, AB was between 18-25 years at the time of the accusations which is a risk group; this will change over time with age, maturity and marriage. Dr Hazipetrou said there was no evidence of disorders, no history of criminality; he is well organised with no marked impulsivity. AB did not condone or support relationships with children. [100] Dr Hazipetrou found AB did not present with risk factors. [101] Dr Hazipetrou said he can‘t assume the accusations did occur, if so, this would induce a whole raft of different questions. On the other hand he did not discount it and gave it plenty of attention in his assessment. [102] Dr Hazipetrou was asked for an assessment, as best he could, of the prospect that AB would be likely to become involved in an inappropriate way, with underage girls in the future if the behaviour of the girl described had in fact occurred. [103] Dr Hazipetrou noted the understandable difficulty involved in assuming that AB denied behaviour that had in fact occurred, in particular because it would mean AB was in denial, and proffered a tentative view. He said that even if there was some validity to the accusations there was no suggestion of recidivism. Within the wide range of testing conducted, AB scored within a very low range. [104] Ms Noble for the Commissioner submitted that the fact that AB kept the image of the child‘s breasts on his phone could be seen as a risk factor. According to Dr Hazipetrou, keeping the image was not a risk or protective factor, AB didn‘t know what to do with it, he sees it now as an error in judgement but at the time he thought he needed to wait and show it to his solicitor before he made a decision to delete it. He said he did not share the image with anyone else. -- 15 of 23 -- 16 [105] Dr Hazipetrou said it was a protective factor, that AB did telephone the girl‘s step father when he received the message from him to call the step father, as he had no idea the reason for their call. He said the transcript shows that AB was sobbing throughout the call. [106] Dr Hazipetrou found no symptoms or signs of mental health disorder or personality dysfunction. There were no urges, thoughts or attitudes reflecting the presence of paraphilia. There was no weight in any of the references to the allegations being true. In fact all of the school and academic material and testimonies from people who knew AB very well only paint a picture of a man who assumes responsibilities as an adult and worked diligently with the Association. No indication presented that he has ever been inappropriate to any child or young person previously. [107] In addition, Dr Hazipetrou said it was important to also consider that the allegations to police were ―withdrawn by the girl and her mother‖. Dr Hazipetrou said the allegations remained unsubstantiated and his findings suggest AB does not present as a risk to children. Discussion of the Evidence/Application of the Law [108] The Tribunal must consider whether this is an exceptional case in which it would harm the best interests of children if AB‘s blue card was reinstated. He has not been charged with an offence. The CCYPCG is obliged to issue AB with a positive notice unless an exceptional case exists (s 221(b)). [109] The Commissioner was concerned about the totality of the police investigation material that concerns allegations of sexual abuse of a child who was 14 years of age at time and AB was 24 years of age. He was in a position of power and responsibility as a coach and Administrator of the Association and already a holder of a Blue Card and fully aware of its function and purpose. Ms Noble, for the Commissioner submitted that the allegations amounted to an abuse of the child‘s trust in AB. [110] Ms Noble submitted that it was not allegations that concerned one incident of 22 September 2010 but it was that an intimate relationship developed between them. It was put that it was escalating behaviour on AB‘s part and that he engaged in grooming behaviour of text messages, Facebook communication, meeting secretly and kissing that led to the event of alleged sexual conduct that was said to have taken place on 22 September. [111] The mother told police the child was upset and devastated, she was not sleeping and crying when she gave her statement, Ms Noble submitted the girl was psychologically and emotionally harmed. [112] Ms Noble noted that these events were quite recent. [113] It was put to the Tribunal by Ms Noble that less weight should be given to the references as they describe AB as dedicated, with integrity, honest and -- 16 of 23 -- 17 hardworking. The references minimised the allegations, were in favour of AB and put his consideration before the child. She submitted they were expressed impartiality, but they didn‘t believe the child or test to see if the allegations were true. DM and MC said the child ―stalked‖ AB and placed blame on her. [114] Ms Noble submitted there were inconsistencies in AB‘s evidence concerning the sequence of events although she did not put this to AB until her closing submissions. In her closing submissions Ms Noble said AB told the Tribunal that he received the photo of the girl‘s breasts a couple of weeks before the step father called him on 4 October 2010 and he kept the image. She submitted that AB had been in contact with the girl after receiving this photo and this conduct would constitute a serious error of judgement and had implications for assessing risk factors. [115] The Tribunal directed that further submissions from both parties be provided to identify the relevant evidence of AB to verify whether the Commission‘s contention of sequencing events was accurate on the evidence. [116] Mr Dighton consulted the audio recording from the hearing and both parties accepted the phone call from the parents was 4 October 2010 and AB said he was unsure when he received the image of the girl‘s breasts but he thought it was a short time before the parent‘s phone call. AB also said that he had ceased coaching the child before she sent the image to his phone. [117] Mr Dighton argued that the Commissioner could not substantiate improper conduct by AB as the evidence does not support he had any contact with the girl after he received the image by text. [118] The Commissioner took no issue with the sequence of events proffered by Mr Dighton but submitted that irrespective of the timing of the receipt of the image AB showed improper conduct in failing to report the image directly after he had received it. [119] However, SM said AB told her about the image after he was contacted by the girl‘s stepfather by phone and she told him to delete it. [120] The Commissioner submitted that the totality of the evidence before the Tribunal demonstrates an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. [121] AB told the Tribunal he was shocked by the allegations made by the child, which he said he first knew of through the parents‘ phone call. He vehemently denied these allegations under oath. He had already received the image of the girl‘s breasts, (which he said was unsolicited and ―came out of the blue‖) shortly before the parents‘ call which should have alerted him that there was a problem. -- 17 of 23 -- 18 [122] He could not offer any suggestions as to why the girl would have made these accusations against him. [123] From all of the evidence from the eight referees and the information provided to Dr Hazipetrou from AB, it would seem AB has had an unremarkable social history. His evidence was that he had a girlfriend at the time of the allegations; the coach of the girl‘s team in fact, and according to AB the relationship ended due to the allegations. [124] The members of the Association immediately accepted AB‘s denial over the girls‘ word and there is no evidence to suggest that the Association conducted an investigation of the matter. The referees told the Tribunal that this was because they knew police were involved and did not want to interfere with their investigation. Although in the Tribunal‘s view, child protection matters are separate to police investigations. Again, in the Tribunal‘s view, it is not readily apparent how enquiries as to a child‘s current safety and wellbeing and conducting a risk assessment about potential concerns for other children; would interfere with a police investigation. [125] A child protection policy apparently exists but the content is not known to the members so they could not verify whether any investigation should take place or what the process is when allegations of sexual abuse of a child player have been made against a member and paid employee. [126] However, it was AB that immediately brought the allegations to the attention of the members of the committee and he self imposed a regulation which included him taking immediate leave, standing down from coaching of any girls and women and changing coaching arrangements so that he would not be in the grounds of the Association when the girl was playing or training. [127] Members imposed an adult chaperone upon AB which he welcomed. AB showed appropriate insight in immediately reporting the situation, removing himself from the situation and not contacting the girl. [128] The Tribunal carefully considered the Commission‘s submission that text messages, Facebook communication and secret meetings occurred between AB and the girl and that this amounted to grooming behaviour. [129] The Tribunal carefully considered all of the police material including the hand notes written by the girl who documented the dates of when she said she met with AB and they kissed and when she went to his house. [130] The girl‘s account of the relationship was consistent in what she told the police and in what her girlfriend reported in her police statement that the girl told her. [131] The Tribunal reads and carefully considers the statements and views expressed by children and young people and certainly considered the statements of the girl and other young people in this case. The Tribunal -- 18 of 23 -- 19 found it troubling that many adults in this case did not approach the girl and her parents to listen to her disclosures and ensure that she was safe and well. The mother telephoned one of the committee members about the allegations. [132] The girl and the mother did not approach police or make a formal complaint to police. Once contacted by police they reported the allegations as AB was a Blue Card holder. It appears to logically follow that a criminal prosecution and testing of the evidence that such a prosecution would involve, was never in prospect, at least from this perspective of the girl and her family. The police did not proceed with the matter and AB was not charged with any offence. [133] All of the referees attested to AB‘s character as a man who was well respected, selfless with his time in mentoring young people and someone who was well liked and a good role model. There was no material to suggest any behaviour in contrast to this. Each of the referees had the experience of AB coaching their children, all of whom were boys and young men. One referee also had daughters but it was not clear if AB had coached them. [134] The Association clearly relied on AB and as one referee told the Tribunal the loss of AB‘s Blue Card was a loss to him but a greater loss to the Association and the local community in general. [135] The Tribunal found no evidence of anyone seeing the girl and AB together on the occasions when the girl alleged they had kissed or when anything improper was said to have occurred. Any individual coaching, any kissing or simply alone talking with each other was not reported by anyone in any of the material. All of the referees were surprised by the allegations; none had ever seen anything between AB and the girl that gave rise to anything untoward occurring between them. [136] The Tribunal accepted Dr Hazipetrou‘s assessment and report that he found no evidence to suggest AB presents as a risk to children. [137] Having carefully considered and weighed all the evidence, the Tribunal cannot be satisfied that it is more probable than not, having regard to the seriousness of the allegations and the consequences that flow from them, that the events described by the girl occurred. This of course does not end the matter. A determination of whether the events described by the girl did or did not occur is not the purpose of the application before the Tribunal, although in the circumstances of this case, a finding of fact that the girl‘s allegations occurred would have had a substantial bearing on whether the Tribunal was satisfied that this was an exceptional case in which it would not be in the best interests of children to issue a positive notice to AB. [138] An exceptional case may still be made out upon a consideration of all the relevant evidence. [139] When considering whether this is an exceptional case, the Tribunal takes into consideration all circumstances as to whether there is real and -- 19 of 23 -- 20 appreciative risk to children by permitting AB to be issued with a positive notice. Risk factors may vary from the perspective of the assessor, but more particularly will vary according to the known facts. ―Risk‖ in the context in which the Tribunal must assess, is not concerned with what may be mere suspicion, but rather requires some foundation in fact. [140] The Tribunal accepts that phrases like ‗exceptional case‘ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation and the interests of the persons whom it is here, quite obviously, designed to protect is children.6 [141] As quoted earlier in these reasons, Philippides J has said that: ‗… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion‘.7 [142] The term ―exceptional case‖ is not defined in the Act and case law has considered its meaning, as detailed under paragraph 5 of the Commissioner‘s Reasons for her decision. What amounts to an ―exceptional case‖ must be such as to ―take it out and beyond the ordinary circumstances reasonably expected to occur‖8. Risk factors regarding AB’s suitability to hold a blue card [143] AB did not immediately delete the photo of the girl‘s breasts from his phone. It could be explained as AB not knowing what to do with the image and eventually sought legal advice before he deleted it. [144] AB‘s remorse about the allegations is directed more that he is disappointed with himself that he was vulnerable to accusations, such as being alone with a young girl, rather than concern for the girl. [145] For completeness, it should be noted that the Tribunal gave consideration to whether AB would pose a risk to children into the future, should there be some truth to the girl‘s allegations as discussed within Dr Hazipetrou‘s evidence. Dr Hazipetrou‘s findings were that even if there was some validity to the accusations there was no suggestion of recidivism and that within the wide range of testing conducted, AB scored within a very low range. This is of some comfort to the Tribunal. However, if the Tribunal had found that the events described by the girl had occurred, then the Tribunal would have been concerned that AB not only abused the position of trust in which he was placed by the Association, but also showed a complete lack of judgement in actively participating in what was clearly an inappropriate relationship and in many respects, one that would have been harmful to the girl. Therefore, AB if issued a positive notice could present a risk to children in the future. However AB‘s reaction to the allegations, much of the evidence of the referees and Dr Hazipetrou‘s evidence moderate that potential risk to some extent. 6 See, eg, Kent v Wilson [2000] VSC 98 per Hedigan J at [22]. 7 And see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395-6. 8 The Marriage of Sandrk (1991) 104 FLR 394 at 399-400. -- 20 of 23 -- 21 Protective factors regarding AB’s suitability to hold a blue card [146] Evidence from AB‘s referees was that he is a good advocate for young people, he stands up for them when he thinks they have been unfairly treated and he has given much of his time without pay to assist in their development as players. Some of his referees, in fact, see a great loss to other young people and the community by AB not holding a Blue Card. [147] AB‘s referees consider him to be a man of integrity and trustworthiness; they speak in glowing terms of his coaching and preparedness to mentor young people. Each of them trusts him with their children. [148] He is very dedicated to the sport and the Association; it is a large part of his life. AB‘s community and family has embraced him and supported him through these allegations. [149] AB has had an unblemished record, in 18 years of being involved with the Association there has never been a complaint made about him. [150] AB has no record of charges against him previously. There is no evidence of any anti-social or inappropriate behaviour towards young people in the past or since the allegations were made. [151] His reaction to the allegations would suggest that he would not put himself in a position again where any future accusations could be made against him. [152] Dr Hazipetrou found a cluster of protective factors in AB‘s presentation such as functional social supports, a history of prosocial behaviours, emotional resilience and effective coping mechanisms. There was an absence of substance abuse disorders, mental illness and criminality with no violent disposition or history of aggression towards others. He has a supportive family environment and community of support in the Association. Dr Hazipetrou did not find AB to be a risk to children. Conclusion [153] AB has not been charged with an offence, the CCYPCG must issue a positive notice unless it is an exceptional case. [154] There is adequate evidence to demonstrate that there is not a real and appreciable risk that AB would harm children whilst employed or in undertaking volunteer work. For the reasons discussed, the protective factors outweigh the risk factors in this case. [155] On the evidence presented to the Tribunal we are not satisfied, on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for AB to be issued with a positive notice, a Blue Card to work with children. -- 21 of 23 -- 22 [156] The Tribunal orders that the Commissioner‘s decision to issue a negative notice to AB is set aside and pre-existing positive notice be reinstated forthwith. Non-publication order [157] Submissions were made by Mr Dighton for AB on an application received by the Tribunal 8 June 2012 for a non-publication order under s 66(3) of the QCAT Act 2009. The CCYPCG made no submissions with respect to the application. [158] Oral reasons and the decision were provided at the hearing on 19 July 2012 that the Tribunal accepted the submissions of the applicant and granted a non-publication order pursuant to s 66(2) of the QCAT Act 2009 with respect to the name of the applicant, the child, the non-expert witnesses and the applicant‘s employer at the time the allegations were made and his current employer. Costs [159] Mr Dighton made an application for costs pursuant to s 102 of the QCAT Act 2009 for the amount of $11,690. In summary, the basis of this application was that if a positive notice should issue and the Blue Card restored, then AB was not afforded natural justice by the Commissioner in her decision. Further, the applicant genuinely attempted to enable and help the Commissioner to make the decision on the merits. [160] With respect to the second assertion that AB genuinely attempted to assist the Commissioner in her decision making, evidence to the Tribunal was that an investigator from the Commission went to speak to AB to obtain his version of events. AB however declined to respond exercising his right to silence. While there can be no query with him exercising this right, it does not leave it open to be asserted that the Commission denied him natural justice. [161] Similarly, the submission at paragraph 18 of Mr Dighton‘s written submissions that "the Applicant went to considerable lengths to assist and enable the decision-maker to make the correct decision" appears to fail on the same point. [162] The Tribunal accepts the Commissioner‘s submission that AB did not challenge the status of the material received from the Commissioner for Police as "investigative information" and as such, it was reasonable for the Commission to act on this information. None of the persons who had provided statements to the Police were required by AB‘s legal representatives for cross examination at the hearing. [163] The Commissioner made her decision under the principles of the CCYPCG 2000 Act including s 155 relating to screening for regulated employment and regulated businesses that a child‘s entitlement to be cared for in a way that protects the child from harm and promotes the child‘s wellbeing. As -- 22 of 23 -- 23 mentioned previously, it is to this consideration that all others must yield. There is no evidence to suggest the Commissioner acted in a way that unnecessarily disadvantaged the Applicant in the proceedings and that the interests of justice are so compelling that costs should be awarded contra to s 100 of the QCAT Act 2009 that provides a presumption that each party bears its own costs. [164] The application for costs is dismissed. -- 23 of 23 --