BA v Commission for Children and Young People and Child Guardian [2012] QCAT 100

CITATION: BA v Commission for Children and Young People and Child Guardian [2012] QCAT 100 PARTIES: BA v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML144-11 MATTER TYPE: Childrens matters HEARING DATE: 9 and 10 February 2012 HEARD AT: Brisbane DECISION OF: Elizabeth Benson-Stott, Presiding Member Pam Goodman, Member DELIVERED ON: 24 February 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] The decision of the Commissioner for Children and Young People and Child Guardian made on the 25 July 2011 to issue a negative notice and refuse the blue card application for BA is confirmed. [2] The Tribunal prohibits the publication of the name of the Applicant, the name of the Applicant’s wife and children, and the names of the complainant and witnesses as referred to in the page 2 of the report of Dr Sue McCulloch dated 2 May 2008. CATCHWORDS: Whether applicant represents an unacceptable risk of harm to children – exceptional case – protective factors – risk factors – non-publication order APPEARANCES and REPRESENTATION (if any): APPLICANT: BA was represented by Mr Dan Sushames of Counsel with Harris Sushames Laywers instructing RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Karen Alton -- 1 of 27 -- 2 REASONS FOR DECISION Background [1] Mr BA (known herein as „Applicant‟), is the Applicant in these proceedings. [2] The Applicant resides in Brisbane with his wife and three children. He is currently working part-time for his wife and was until recently engaged in a course of study. On 13 March 2011 the applicant‟s university applied to the Respondent for a blue card on his behalf as he required one to complete his course of study. [3] As part of its decision making process, the Respondent obtained a police criminal history check regarding the Applicant. The history shows that the Applicant was convicted of “Receive Corrupt Benefit” on 8 December 2008. The history discloses that the Applicant was also charged with “procure sexual act by threat / intimidation” (between 6/9/07 and 13/10/07), “Demanding property, benefit or performance of services with threats” (between 6/9/07 and 13/10/07), and “Official corruption” (on/between 6/9/07 and 13/10/07)”. The evidence is that all charges arose out of the same behaviour by the Applicant, and that the latter charges were not proceeded with. [4] The Applicant was convicted of receiving a corrupt benefit and was sentenced to 18 months imprisonment to be released after serving three months on entering recognizance self $5,000 to be of good behaviour for three years. [5] The three year good behaviour period expired on 8 December 2011. [6] In accordance with reasons dated 25 July 2011, the Commissioner issued a negative notice. [7] The Applicant seeks a review of this decision and applied to the Tribunal on 16 August 2011 asking the Tribunal to set aside the Respondent‟s decision and for him to be issued with a positive notice and blue card. [8] The application was heard in Brisbane on the 9 February 2012 and 10 February 2012. The relevant law [9] The Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) confers jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) to review decisions of the Commissioner. [10] Section 24 of the QCAT Act provides that, on review, the Tribunal may: (a) Confirm or amend the decision; or (b) Set aside the decision and substitute its own decision; or -- 2 of 27 -- 3 (c) Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. [11] Section 19 of the QCAT Act provides: In exercising its review jurisdiction, the Tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [12] The Applicant‟s criminal history or charges did not contain convictions for serious offences as defined under the Act. The charge originally laid against the Applicant of „procure sexual act by threat/intimidation‟ is for an offence categorised as a serious offence, however the Applicant was convicted for an offence other than a serious offence, as defined at section 156 of the Act. Under these circumstances the Commissioner must issue a positive notice unless satisfied that the Applicant‟s is an exceptional case in which it would not be in the best interests of children for him to have a blue card. If this is so then the Commissioner must issue a negative notice. [13] In deciding whether to issue a positive notice in the Applicant‟s case the Tribunal must put itself in the shoes of the Commissioner and consider section 221 of the Act. The relevant provisions are outlined below: 221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence (1) Subject to subsection (2), the commissioner must issue a positive notice to the person if— (a) the commissioner is not aware of any police information or disciplinary information about the person; or (b) the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv)— -- 3 of 27 -- 4 For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). (c) the commissioner is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person. [14] In determining whether the applicant‟s case is exceptional, the Tribunal must have regard to the factors listed in s 226 of the CCYPCG Act. That section is set out below: 226 Deciding exceptional case if conviction or charge (1) This section applies if the commissioner— (a) is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence. (2) The commissioner must have regard to the following— (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court‟s reasons for its decision; (b) any information about the person given to the commissioner under section 318 or 319; (c) any report about the person‟s mental health given to the commissioner under section 335; (d) any information about the person given to the commissioner under section 337 or 338; -- 4 of 27 -- 5 (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. [15] The CCYPCG Act does not define the term “exceptional case”. The law is now well established that the determination of an exceptional case is a matter of discretion depending on the individual circumstances of the case. [16] In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated: “Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning „unusual, special, out of the ordinary course‟. This does mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.” [17] In the matter of OAA re (2006) QCST 142, the former Children‟s Services Tribunal found that, in determining an “exceptional case”, consideration is to be given as to whether the applicant presents an unacceptable risk of harm to the children of Queensland. [18] The focus of the CCYPCG Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999. [19] Section 6 of the CCYPCG Act provides that the Act is to be administered under the principle that the welfare and best interests of a child are paramount. Section 155 further provides that: “the paramount consideration in making a decision relating to employment screening is a child‟s entitlement to be cared for in a way that protects the child from harm and promotes the child‟s wellbeing” [20] The Tribunal must have regard to these factors in determining this application. [21] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities. In the case of Maher [2004] QCA 492, the Queensland Court of Appeal adopted the submission at paragraph 30 that: “...the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an -- 5 of 27 -- 6 exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.” [22] Neither party bears an onus of proof in regard to review proceedings, with the Tribunal Appeal Panel in the case of Storrs [2011] QCATA 28, stating that: “The tribunal agrees that a proper analysis of the law must lead to the conclusion that there is no onus on the Commissioner to convince the Tribunal that on the balance of probabilities Mr Storr‟s case was an exceptional case such that it would harm the best interest of children for him to have a blue card. The tribunal is required to determine whether an exceptional case exists or not after evaluating all available evidence before it without any party bearing the onus of proof that an exceptional case exists.” Further considerations of the law – The evidence of the psychologist [23] The Applicant provided copies of two reports from psychologist Dr Susan McCulloch, who he had seen on a number of occasions. The 2008 report was originally heavily edited by the Applicant but the Tribunal was provided with a full copy of the report by the Applicant‟s Counsel during the hearing. A second report was completed in October 2011. [24] The psychologist‟s reports dated 2 May 2008 and 2 October 2011 which formed part of the Applicant‟s case did not include any Curriculum Vitae of Dr McCulloch or details of her experience. [25] At the commencement of the hearing on 9 February 2012, the Tribunal queried with Counsel whether Dr McCulloch was appearing as a treating psychologist or as an expert. The Tribunal referred the Applicant‟s legal representative to Australian Psychological Society guidelines and raised concerns that if the guidelines were not followed Dr McCulloch‟s evidence may not support the Applicant‟s case. [26] Dr McCulloch is a counselling and forensic psychologist who has practised since 1985. She is a member of the Australian Psychological Society and the Australian Psychological Society College of Forensic Psychologists. She advised the Tribunal that that she was familiar with the Australian Psychological Society guidelines and Code of Ethics, along with the Forensic College guidelines. [27] Dr McCulloch informed the Tribunal that she was requested to be an expert at this hearing but has mainly treated the Applicant so she was torn between being an expert and treating psychologist so she stated she could be both the treating psychologist and the expert at this hearing. [28] This issue was addressed in the submissions from the parties. Both parties submitted that her evidence in relation to the risk of reoffending should not be relied upon by the Tribunal as Dr McCulloch was appearing as a treating psychologist. [29] Dr McCulloch provided two psychologist‟s reports which concluded with her opinion that the Applicant had a low risk of recidivism and made -- 6 of 27 -- 7 comments relating to the Applicant and her opinions of his risk of reoffending, and the low risk of harming children. [30] Insofar as Dr McCulloch‟s evidence is concerned, the rules of many courts specifically exclude people who have had a prior treating relationship with clients from providing expert reports for the client. Even where the rules of the court fail to explicitly exclude such reports, the prior treating relationship raises the question of impartiality of the treating psychologist. [31] Under the QCAT Act, this Tribunal is able to inform itself as it considers appropriate (s 28). The Tribunal does however hold a concern that given Dr McCulloch has treated the Applicant, she was bound by the Australian Psychological Guidelines to instruct her client to attend elsewhere for an expert report. The psychologist‟s report should only have reflected matters within her treatment knowledge – observations of treatment of the client, presenting issues, diagnosis, findings made, further treatment required, and progress made during treatment. The reports should not have been based on a forensic assessment as the psychologist had been the Applicant‟s treating psychologist. [32] In these unusual circumstances, the Tribunal considers it unsafe to rely upon her conclusions regarding the Applicant‟s risk of recidivism. As a result of the psychologist acting both as a treating psychologist and an expert psychologist providing an opinion, the Tribunal has been denied what might have been important evidence, and ultimately the Applicant has been denied the opportunity to present evidence to the Tribunal about his level of risk of reoffending. [33] The Tribunal will take into account the evidence of Dr McCulloch as a treating psychologist. The undisputed relevant facts [34] The Applicant has a conviction for the offence of „receive corrupting benefits‟ as well as charges for the offences of official corruption, „demanding property, benefit or performance of services with threats‟. „Procure sexual acts by threats/intimidation‟ is listed on the Applicant‟s criminal history. The evidence is that all charges arose out of the same behaviour by the Applicant, and that the latter charges were not proceeded with. In addition the offence and the alleged offences were not the result of a single occurrence. [35] The conduct occurred in approximately September / October 2007. [36] With regard to the offence, the Applicant was employed by a government department when he was considering an application lodged by a 27 year old woman. Several discussions took place between the woman and the Applicant during which the applicant indicated that he would consider the application favourably if the woman had sex with him. [37] The Applicant ultimately arranged to meet the woman at her home and went to her home where he was intercepted by police who had been monitoring some of the telephone calls. -- 7 of 27 -- 8 [38] The Applicant was charged with the offences listed above, and ultimately spent three months in jail between 8 December 2008 until 8 March 2009. Upon release he was placed on a good behaviour bond which expired 8 December 2011. [39] Since his release from prison, the Applicant‟s friends and family have noticed a positive change in his personality such as he has become much more communicative and less stressed, and is now more social. [40] The Applicant is now the primary carer of his three children (twins aged approximately one-and-a-half (1.5) years of age, and a child of approximately five (5) years of age) as his wife works. He is responsible for most care duties for the children and is often in the company of the children of family friends. [41] There is no evidence of any crimes or other anti-social behaviour against or involving children. Other evidence [42] Oral evidence provided to the Tribunal is summarised below so far as the Tribunal has had regard to the evidence in making its determination. Applicant‟s evidence [43] In evidence the Applicant advised the Tribunal that: [43.1] His initial reason for applying for the blue card was to teach TESOL in 2010. [43.2] He had edited the first report of the psychologist Dr Susan McCulloch as he felt it was irrelevant to the application for a blue card. His wife also did not know about him being sexually molested in childhood. [43.3] He has an awareness now of how his childhood and his life has significantly impacted his life: [43.3.1] He grew up with ethical standards in which his father overly exerted authoritative power and had affairs; [43.3.2] He was sexually molested at the age of approximately eight (8) years; [43.4] Revolution in his home country of „I‟ when he was approximately thirteen (13) years resulted in great restrictions on his personal freedom and development; [43.5] He married his first wife at approximately twenty-four (24) years of age and divorced at approximately twenty-seven (27) years of age due to he and his then wife having different personalities; -- 8 of 27 -- 9 [43.6] He taught English to Adults while studying for a Bachelor of Arts (English translation and Interpretation) in „I‟. He obtained his Bachelor Degree in approximately 1997; [43.7] He started working for the Australian Embassy in December 1995 as a driver and was rapidly promoted. He left the Embassy in approximately September 2004; [43.8] In approximately 2003 he met his now wife RL and commuted regularly from „I‟ to the „EAU‟ where she lived. In approximately July 2004 he married his now wife; [43.9] In 2004 he obtained Australian citizenship. In approximately December 2004 he and his wife moved permanently to Australia; [43.10] The family moved to Canberra in May 2005. In late 2005, only a week after they had purchased a home in Canberra, he accepted a position of promotion to Brisbane and the family moved to Brisbane in February 2006. [43.11] Their first child was born in 2007 and both his mother and mother in law moved in with the family for an extended period. [43.12] The offence was committed in late 2007, at a time of great personal stress, both at home and at work. At the time of his offence he was withdrawn from his family and was not functionally communicating. [43.13] He was incarcerated from approximately 8 December 2008 until 8 March 2009, and upon release was placed on a good behaviour bond which expired December 2011. [43.14] At the time of the offence he had undergone many major life changes in a short period of time and didn‟t have mature and functional communications channels at home or at work. He feels that he now has the skills and maturity to deal with pressures appropriately. He believes that he is able to communicate now with family and friends, and use mature and functional communication in the process. [43.15] He had tried to gain insight into the offence – why it happened and how he could make sure that he doesn‟t harm others again, particularly children who are vulnerable. He stated that he spent a year thinking and struggling with himself and thinking of ways to overcome his mistakes and not repeat them. [43.16] He has an awareness now of how his experiences during childhood have significantly impacted his life, particular his relationship with his father who was emotionally distant and withdrew from his family. His was aware that his father had a number of extra-marital affairs. -- 9 of 27 -- 10 [43.17] He has over time since the offence was committed grown up and is now developed an awareness of how to recognise and deal with stress. He identified his triggers as: [43.17.1] Taking life seriously; [43.17.2] Making his workload and his work position his priority in life; [43.17.3] Not talking to family or friends; [43.17.4] Withdrawal from family and friends; [43.17.5] Conflict with his wife; [43.17.6] Being in a position of power when feeling overwhelmed. [43.18] His management of his stressors include: [43.18.1] Talking to his wife using functional communication; [43.18.2] When conflict arises to either leave talking for a time when he calms down, or taking time out; [43.18.3] Trying to look at the situation in different ways and see it in a positive and challenging way; [43.18.4] Managing lifestyle such as eating correctly and sleeping correctly; [43.18.5] Prioritising things; [43.18.6] Being assertive and saying no when needing to say no; [43.18.7] Thinking of the triggers which caused the stress; [43.18.8] Meeting with friends and making time for family; [43.18.9] Postponing any major life changes when stressed; [43.18.10] Seeing a counsellor when feel the need to see one. [43.19] He would consider anyone with any criminal history to pose some risk to children. For example, someone who had crashed a car could be considered a danger to children, but he cannot see how his offence relates to bringing any harm to a child. He has difficulty in linking his isolated offence to being considered a risk to children. [43.20] At the time of his offence he was not receiving psychological treatment. He didn‟t know anything about stress, what causes it and what it causes. He tried to figure out himself why he committed the offence and how he could prevent it happening again. He found some useful information on the web and also -- 10 of 27 -- 11 spoke to his family doctor, particularly in relation to the migraines he was suffering at the time. [43.21] He read psychologist Dr Susan McCulloch report approximately two (2) years after he was released from prison and it was then that he began to realise what stress can do. He spoke to his wife and family doctor about what causes stress, how to deal with it, and how to prevent it. [43.22] Approximately two (2) years ago (2010) his general practitioner treated him for depression, but the doctor gradually withdrew him off of this medication. [43.23] In 2010 he worked for IBM for approximately nine (9) months but resigned from this position to take up studies in audiology. [43.24] He has put his studies of a Master of Audiology on hold while awaiting the review of his application for the blue card as he requires a blue card to undertake placements in his study. [43.25] He did not gain insight or awareness of the impact of his childhood and in particular his relationship with his father until 2011. He had learnt that his father‟s behaviour impacted on him significantly. [43.26] When asked who his behaviour had harmed, the Applicant advised that he considered that his behaviour had harmed the complainant, his family, the government department that he had worked for and his former colleagues. The Applicant stated that he is ashamed of his actions. [43.27] The Applicant was asked how he had harmed the complainant. The Applicant advised that he could imagine the harm that she felt by putting himself in her shoes. He stated that she would feel that she couldn‟t trust the system and that Australia was a corrupt country. He stated that she would feel helpless and disappointed and frightened of people, particularly of people from the Middle East. [43.28] He felt that what he did was wrong as it has significantly affected him and his family. [43.29] He has sought rehabilitation such as: [43.29.1] Counselling with a psychologist; [43.29.2] General practitioner intervention such as treatment for headaches and pain, along with medication treatment for depression and taking of vitamin B pills; [43.29.3] Visiting a counsellor in approximately mid November 2011 through his wife‟s Employee Assistance Program for one (1) session to ensure that he was on the right path with the use of strategies; -- 11 of 27 -- 12 [43.29.4] Mainly through self education such as online learning about how to manage stress. [43.30] At the time of the offence he could not afford to pay for a psychologist or counsellor as he was under financial hardship. When he was asked by the Tribunal „Did your General Practitioner refer you to a Psychologist under the Medicare Better Access Program which fully funds sessions for a particular amount of time?‟, he responded that he had never been referred to a therapist. He did not feel the need for counselling unless it is necessary as he is feeling better within himself. [43.31] With stress he can become „tired and cranky‟, but he has learnt to explain to his family that he is not feeling good, and then proceed to either have a sleep or take some time out. [43.32] He understands his offending behaviour was related to stress, depression, miscommunication with his wife, conflicts with his wife, not prioritising things, team leader bullying, withdrawal from family, and an inability to handle power in a position. [43.33] He believes that he is able to communicate now with family and friends, and use mature and functional communication in the process. [43.34] In the last year, he has had a good marriage. [43.35] He has learnt from his past and why the offence occurred. Witnesses‟ evidence [44] RL, wife of the Applicant gave evidence to the Tribunal regarding the Applicant stating: [44.1] She was shocked when heard about the Applicant‟s offence. His behaviour was out of character for him and she never thought he would do something like that. [44.2] The Applicant has told her the details of his offending behaviour. [44.3] At the time the Applicant committed the offence he was under immense pressure as they had had their first child, they had moved interstate three (3) times in a short period of time, their parents stayed with them for up to nine (9) months, they had no social network in Brisbane when they relocated here, they used to argue a lot, they had a lot of problems in their marriage and they could not communicate, and the Applicant did not know how to manage stress. [44.4] Up until the offence was committed, the Applicant would not communicate, he was a strict person, and he worked a lot. [44.5] He tells her how much he still suffers through his unethical behaviour and how it has affected his family‟s life. -- 12 of 27 -- 13 [44.6] She has seen a gradual change in her husband over time since the offence. When he offended he went to a counsellor for help which is something he would not normally do. He now recognises the importance of getting professional help when he is under stress and can‟t cope. When they had the twins, and she found herself under great stress he encouraged her to seek counselling. [44.7] Around children, including his own and those of friends, he is engaged with them, he does not yell at them, he tries to explain things to them, and he is protective of them. [44.8] He can now communicate and the marriage is good. [44.9] He now believes professional help is necessary. He went to see Sue McCulloch who helped him, he printed out a lot of information on the internet in relation to stress, and he went to see her EAP work counsellor to see if he is on the right track. [44.10] Before he would get angry and raise his voice, now he tells her he is not in a good place and he takes some time out and calms down and comes back and talks to her. [44.11] She particular noticed the change in the applicant after the birth of their twins. He is now supportive and calm and taught her techniques to help manage her stress. [44.12] He now socialises with friends. Many of their clients who come to Australia are already friends and this helps with the socialisation; [44.13] He has developed insight into the harm he has done and what he did that affected his family. He says often he suffers when he thinks about what he has done and what it would have been for the complainant to go through and how it would have changed her life. He suffers for his actions; [44.14] The Applicant has been gradually working on himself and it took him a while to develop insight but she is now positive that he would not breach a position of trust again, and that he will not reoffend as he has learnt how to deal with power. [44.15] Today he is supportive, protective around children, and engaged with people. [45] Estelle Faghih, a friend of the Applicant gave evidence to the Tribunal stating: [45.1] She has known the Applicant for approximately fifteen (15) years. [45.2] He has told her that he was shocked with his actions and that he did not know at the time why he had done it. They have not spoken about the effect his behaviour had had on the complainant, but he has said he was sorry for what he had done. -- 13 of 27 -- 14 [45.3] She was surprised at how forthright the Applicant has become. He told her that seeing a psychologist has helped him. He told her that he had been under pressure from the move to Australia, then from Sydney to Canberra, then to Brisbane and dealing with a young baby and having relatives staying with him. [45.4] He said the psychologist helped him to realize the effect his father had on him, and that he‟d always been very hard on himself. [45.5] She has not seen the Applicant in person since approximately 2010. [45.6] Applicant appears happier and has a better lifestyle. She has noticed that the Applicant‟s migraines seem to have gone and he is more open than he previously was and is no longer reserved. [45.7] She would trust Applicant with her own children. [46] Fariborz Norouz, friend of the Applicant, gave evidence to the Tribunal about the Applicant stating: [46.1] He has known the Applicant for a period of approximately ten (10) years. He has had regular and frequent contact with the Applicant over a long period of time, including a period when he lived with the Applicant for approximately four months. He has noticed that the Applicant no longer has an “upset face” which is a difference compared to the time around the offence. [46.2] Sometimes the Applicant talks about the stress and how he can now cope. [46.3] The Applicant has not spoken to him directly about the offence, but they do talk about feeling stressed and finding a way to cope with stress. [46.4] The Applicant is a good person and the Applicant now asks people how they deal with their stress so he can continue to learn. [46.5] If he felt that the Applicant was not a safe person he would not take his son to the Applicant‟s house. If he cannot find a babysitter on days he needs to go to work then he has no hesitation in leaving his son in the care of the Applicant, even knowing the details of the offence. [47] Farahnaz Jafari, friend of the Applicant, gave evidence to the Tribunal about the Applicant stating: [47.1] She has known the Applicant for approximately thirteen (13) years. [47.2] She is the ex-wife of Fariborz Norouz, a witness in this hearing. She lives in Victoria and visits every five (5) to six (6) weeks staying with the Applicant and his wife as she has a five year old child who she has a commitment to visit. -- 14 of 27 -- 15 [47.3] She believes that the Applicant was under a lot of stress at the time of the offence. [47.4] Since the offence the Applicant has become open in his communication and carries himself with dignity. She was living with the Applicant‟s family when she first moved to Australia and this was shortly after the offence and has noticed a positive change in the Applicant since that time in that he has opened up talking more over the last year. [47.5] The Applicant has mentioned to her that he has regretted how his actions have affected everybody. In particular he has mentioned the suffering of his wife and daughter while he was in jail. [47.6] Her assessment is that the Applicant‟s interaction with children is good, and she would leave her own child in the care of the Applicant. [48] Dr Behzad Rafiee, General Practitioner and also friend of the Applicant, gave evidence to the Tribunal stating: [48.1] He is the General Practitioner for the Applicant for approximately eight (8) years. [48.2] He has been friends with the Applicant and has had a personal relationship with the Applicant for over ten (10) years. [48.3] The Applicant had told him that he was remorseful and sorry for what he had done. [48.4] The Applicant informed him that he committed the offence for some reason but the Applicant was not sure why but that he was under a lot of stress. [48.5] On 17 October 2007, he referred the Applicant under the Better Access Program for free sessions to see psychologist Chris Day, however there is no report from this psychologist received and he did not know if the Applicant had attended the psychologist. [48.6] He had informed the Applicant on a number of occasions of funded programs that the Applicant could access for free counselling. [48.7] At an appointment on 13 November 2010, the Applicant was not keen to receive medication or attend counselling that was recommended. [48.8] At an appointment on 17 March 2011, the Applicant presented worried about the outcome of his blue card and he was prescribed Aropax for a period of approximately one (1) month; [48.9] At an appointment on 8 November 2011, the Applicant informed him that his blue card had been rejected and he appeared highly stressed. The Applicant was counselled by Dr Rafiee on that -- 15 of 27 -- 16 occasion by talking about the issue and trying to find a way out. He discussed counselling with the Applicant and the funded sessions with a psychologist were revisited. The Applicant had informed him he did not need to see a psychologist at that time. [48.10] He and the Applicant, and their families socialise together. [48.11] He never thought the Applicant would commit this offence in the first place. [48.12] The Applicant is remorseful and he does not believe the Applicant is that type of person to commit that offence as the Applicant has come from a good family and had a good marriage. He would not commit this offence again. [48.13] The Applicant has never spoken to him about the impact this has had on others but has spoken quite often about the impact it has had on himself and his family. [48.14] The Applicant is a family man who respects his wife and children and would not offend again. [48.15] He has not seen the Applicant act inappropriately toward children. [49] Dr Susan McCulloch, treating psychologist of the Applicant, gave evidence to the Tribunal about the Applicant stating: [49.1] She had written the reports dated 2 May 2008 and 2 October 2011. [49.2] She has considerable experience in dealing with sex offenders. [49.3] She was requested to be an expert at this hearing but has also treated the Applicant so she was torn between being an expert and treating psychologist so she stated she could be both the treating psychologist and the expert at this hearing. [49.4] She has seen the Applicant on the following dates: [49.4.1] 16 October 2007 – approximately one (1) hour of treatment [49.4.2] 30 October 2007 – approximately one (1) hour of treatment [49.4.3] 6 November 2007 – approximately one (1) hour of treatment [49.4.4] 22 April 2008 – approximately one (1) hour of treatment [49.4.5] 28 April 2008 – approximately one (1) hour of treatment -- 16 of 27 -- 17 [49.4.6] 23 August 2011 – approximately three (3) to four (4) hours for an assessment in relation to this hearing and the blue card. [49.5] She believes the cause of the Applicant‟s behaviour was “in a nutshell” stress – from his own unrelenting standards, from the new baby and having extended family in the home and from work and attitudes he was experiencing at work. Dr McCulloch explored with the Applicant: [49.5.1] Applicant‟s cultural issues; [49.5.2] Applicant‟s changing core beliefs; [49.5.3] Applicant not having his own identity; [49.5.4] Applicant‟s personality shaped around his childhood. [49.6] The Applicant‟s offending was a result of the stressors in his life and had stemmed from learned behaviour developed through childhood and influenced by an authoritative father. [49.7] At the time of the offence, although he was intellectually aware of the standards and practices operating in Australia, he would regress to previously learned behaviours. However, now that he has had to face being charged and going to prison (from December 2008 until March 2009), he has now been shocked into making the adjustment. The Applicant is able to handle stress better and is less likely to behave in the way he has previously behaved due to undergoing therapy, being confronted by the consequences of his behaviour and (most importantly) experiencing the consequences of his behaviour. [49.8] Therapy has involved cognitive behaviour therapy looking at socialization, communication, affective feelings, identifying stressors and triggers, how his behaviour has impacted on others, and looking at how culture and stress have contributed to the offence. [49.9] At the initial treatment sessions the Applicant came in to the sessions very depressed and agitated. At these initial sessions she thought that the Applicant did not have insight but was intellectual in his presentation. [49.10] When the Applicant presented for the assessment on 23 August 2011, he presented in a different place emotionally and showed insight. He was calmer and in perspective and spending more time with family. He was able to articulate the consequences of his actions on others. He appeared to have developed his own coping system and he appeared to be able to apply strategies to manage his stress. -- 17 of 27 -- 18 [49.11] The Applicant has shifted in personality and attitudes since the offences and is likely to integrate more closely at an experiential level, not just an intellectual level. [49.12] During therapy the Applicant had acknowledged his behaviour as intimidating. At the time of the offence he was under a great deal of pressure and defaulted to the way he had been socialized to as a child, and was particularly affected by attitudes to women in „I‟, where it was common to have “women on the side”. [49.13] The Applicant was initially concerned about the consequences of his behaviour on himself and later in the appointment in 2011 could explain consequences on others. In 2011 she noted that the Applicant was somewhat different because he had experienced the consequences of his actions. It was her view that the applicant had shifted his identity and grown up. He has developed his own strategy to cope emotionally, both in prison and in life. He had explored issues that had previously discussed in therapy and “come to grips” with those issues. [49.14] Further treatment was needed for monitoring and support particularly in relation to the Applicant‟s depression, the Applicant‟s relationship with his father, culture, and the many childhood issues that the Applicant faced. He has progressed in a positive way but if further counselling does not occur then there is a possibility of the Applicant regressing and returning to his default mechanisms. The Applicant required further counselling to safeguard against reverting to learned behaviours if faced with stressful and powerful situations in the future. [49.15] If the Applicant is placed in a children environment when further treatment has not occurred around the issues the Applicant still needs to address, then there could be a regression to his default mechanisms and him not handling that environment in a productive way. [49.16] It could be concerning that the times that the Applicant has attended for treatment or intervention by a psychologist or counsellor may be calculated around the legal issues. [49.17] Going to prison was critical in that he learned from his experience. He now has an awareness regarding his behaviour and his responsibility to himself and others. He has a greater self awareness. [49.18] The Applicant is more secure in himself. The Issue for the Tribunal [50] The Tribunal must determine whether, on the balance of probabilities, “an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice” has been established. Whether this is an exceptional case includes a consideration of whether -- 18 of 27 -- 19 there is an unacceptable risk that issuing a positive notice would harm the best interest of children. Any hardship or prejudice suffered by the Applicant flowing from such a determination is irrelevant to this consideration. [51] Unless the Tribunal is satisfied that issuing a positive notice would be contrary to the best interest of children, a positive notice must be issued. The Commissioner’s submissions [52] The Commissioner provided oral and written submissions which are summarised below. [53] Ms Karen Alton submitted the following with regard to the Applicant: [53.1] The Applicant‟s offence was recent having been committed in September to October 2007. The Applicant‟s period of good behaviour only recently expired on 8 December 2011, so the serious consequences for any further offending by the Applicant has only recently been removed. [53.2] The Applicant‟s offending was of a sexual nature in which he breached his position of power, authority and trust in relation to a person who was highly vulnerable and in a dependant position. [53.3] Although there was some expression by the Applicant of remorse and insight of his actions on the complainant, his main reflections were around the impact on himself and his family which was particularly supported by Dr Rafiee‟s evidence. [53.4] Dr McCulloch gave evidence that the Applicant would benefit from further counselling to address underlying issues and the Applicant reverting back to learned behaviours if faced with stressful situations. [53.5] In the absence of clear and significant insight of the Applicant into his offending, coupled with the triggers that resulted in the offending having not been fully addressed in counselling, the Applicant remains an unacceptable risk of harm such that his case is an exceptional one. [53.6] The Applicant‟s strategies he has learnt have been predominantly self taught to address his stress. This raises concerns regarding the strength of his strategies and whether they will remain in place. [53.7] The Applicant‟s offending is relevant to child related regulated employment as: [53.7.1] The Applicant crossed boundaries of professional and personal behaviour that are unacceptable by community standards which was reflected in the Court imposing a partially served actual term of imprisonment; -- 19 of 27 -- 20 [53.7.2] The offending was of a sexual nature where the Applicant used his position of power, authority and trust for his self sexual gratification with a highly vulnerable person; [53.7.3] The position of power, authority and trust was breached by the Applicant through deliberate and ongoing actions which was not a „one off‟ circumstance; [53.7.4] Although the offending was not against a child, the Applicant took advantage of the vulnerability of the complainant who was in a position of dependency on the Applicant; [53.7.5] The period of good behaviour imposed on the Applicant has only recently expired on 8 December 2011, and the serious consequences for any further offending by the Applicant has only recently been removed; [53.7.6] The complainant was an Adult, however the Applicant will be in a position of power if working with children who are vulnerable, and he has demonstrated he can cross ethical boundaries and misuse his power, authority, and trust. [54] The evidence still supports the original decision of the Commissioner that this is an exceptional case and the Applicant is a risk to children. [55] Ms Karen Alton, on behalf of the Commissioner, stated that a non- publication order should be granted to not publish the names and any identifying information of the complainant and witnesses listed on page 2 of the report of Dr Susan McCulloch dated 2 May 2008 relevant to the Applicant. She submitted that it is likely that the children of the estranged wife could be identified or traced in respect of any of the information before the Tribunal including the reasons for decision. The Applicant’s submissions [56] The Applicant‟s Counsel provided oral and written submissions which are summarised below. [57] Counsel submitted the following regarding the Applicant: [57.1] The Applicant has a good history in relation to children and that there is no evidence to assert that he is an unacceptable risk to children. [57.2] The Applicant is unlikely to be aggressive or act violently towards children or in their presence. [57.3] None of his offending related to children. [57.4] He has only had one conviction. -- 20 of 27 -- 21 [57.5] His treatment has enabled him to work through issues relating to stress which may trigger a default pattern of behaviour which contributed to his offending. [57.6] His incarceration had a positive effect on him and enabled him to realise that his behaviour and cultural influences were not acceptable in Australia. [57.7] He is committed and determined to rehabilitate himself. [57.8] Dr McCulloch gave evidence that the Applicant has developed insight and awareness as to his behaviour and that an improvement can be observed in relation to mechanisms he utilises to manage stress. [57.9] All referees of the Applicant knew of his offence and stated how the Applicant had changed in a positive way. [57.10] There is always some risks in anyone holding a blue card, however the question is whether or not the risks are unacceptable. [57.11] The applicant has developed insight and awareness of the effect of his actions on himself, his family, and others. [57.12] He knows he has done wrong, he knows his limitations, and he does not present as a risk to children. [57.13] He has learnt from his mistakes, and is moving toward his future where he is growing and continuing to learn. [57.14] The case does not meet the definition of „exceptional‟. [57.15] That a positive notice should be issued to the Applicant. [58] Counsel submitted written reasons in relation to a non-publication order that the decision of the Tribunal be de-identified given that there may be media attention attached to the Tribunal‟s decision which may bring unnecessary and harmful attention to the Applicant and his family, and may have an adverse effect on the complainant and her family. The Tribunal’s view [59] The Tribunal has very carefully considered the oral and written material before it. The Tribunal has also carefully considered the Commissioner‟s reasons for decision dated 25 July 2011. The Tribunal is mindful of section 226 in its analysis below. [60] In doing so the Tribunal identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. [61] Potential protective factors of the Applicant are: -- 21 of 27 -- 22 [61.1] The Applicant has supportive relationships with friends who are aware of his offending behaviour. [61.2] The Applicant has a stated desire to put the past behind and build a better life for himself, his wife, and his children. [61.3] He has attended five (5) treatment sessions with a psychologist and one (1) treatment session with a counsellor. [61.4] He has the support of his wife. [61.5] Caring for his three (3) children of which two (2) are twins. [61.6] The Applicant has no criminal history since 2007 and there is no evidence of abhorrent behavior since 2007. [61.7] There has been no known harm against children. [61.8] The Applicant has some coping strategies which he implements in his everyday life. [61.9] The Applicant is employed in his wife‟s business and has been engaged in studying. [61.10] He has stated some remorse for his actions. [62] Potential risk factors of the Applicant are: [62.1] An offence that has breached community standards of acceptable and appropriate behaviour which was reflected in the Court imposing a partially served term of imprisonment. [62.2] The offence involved not a single impulsive act but a considered and calculated course of conduct over approximately a period of a month. [62.3] The Applicant‟s persistence in carrying out the sexual demands on a vulnerable complainant. [62.4] His position of power, authority and trust over a person in a vulnerable position was used to attempt to obtain sexual gratification. [62.5] There was an abuse of power over a vulnerable person in relation to his offence. [62.6] The offence was quite recent and his good behaviour bond of three years only expired on 8 December 2011. [62.7] His demonstrated preparedness to cross ethical boundaries when employed in an official role. [62.8] Although the offending was not against a child, the complainant was in a position of dependency upon the Applicant, a position the -- 22 of 27 -- 23 Applicant had been in for a number of years and in which the Applicant should not have taken advantage of. [62.9] Greater focus of reflections into the consequences of the Applicant‟s actions revolve around the impact on himself and his family. [62.10] Triggers that led to the offending have not been fully addressed through counselling. [62.11] Although Applicant expressed remorse and appeared to describe an acceptance of responsibility, his true insights into the consequences of his actions impacting negatively on the complainant are not clear from the evidence. The Applicant did not appear to demonstrate sufficient consideration of the effect of offending on the vulnerable complainant as his main focus was on the impact it has had firstly on himself and then on his family. [62.12] The Applicant has not been employed in a position of power, authority, and trust since the offence, and his ability to cope in that situation has not been tested. [62.13] Without ongoing treatment there is an increased risk of the Applicant reverting to his learned behaviour. The Applicant has not committed himself to ongoing treatment. [62.14] The Applicant did not seek counselling that his general practitioner referred him to on a number of occasions when severe stress and depression were identified. [62.15] The Applicant required further counselling to safeguard against reverting to learned behaviours if faced with stressful and powerful situations in the future. The Applicant would be exposed to his learned behaviour with children if he did not address his treatment needs. [62.16] It has not been until the appointment on 23 August 2011 that the Applicant had gained considerable insight into his offending behaviour. Prior to this appointment in 2011, the Applicant could only „intellectualise‟ strategies for coping. [62.17] There is some concern that the Applicant‟s only engagement with counselling and psychologists may have been in association with legal matters. Treatment has occurred on the following dates and in relation to legal matters and intervention with counselling: [62.17.1] 16 October 2007 – approximately one (1) hour of treatment with psychologist; [62.17.2] 30 October 2007 – approximately one (1) hour of treatment with psychologist; [62.17.3] 6 November 2007 – approximately one (1) hour of treatment with psychologist; -- 23 of 27 -- 24 [62.17.4] 22 April 2008 – approximately one (1) hour of treatment with psychologist; [62.17.5] 28 April 2008 – approximately one (1) hour of treatment with psychologist; [62.17.6] Incarcerated from approximately December 2008 until the March 2009; [62.17.7] 16 August 2011 – Applicant filed a Review Application with the Queensland Civil and Administrative Tribunal; [62.17.8] 23 August 2011 – approximately three (3) to four (4) hours for an assessment with psychologist in relation to this hearing and the blue card; [62.17.9] Mid November 2011 – approximately one (1) hour with an EAP Counsellor; [62.17.10] 8 December 2011, the period of the good behaviour bond imposed on the Applicant by the Court expired; [62.17.11] February 2012, the Queensland Civil and Administrative Tribunal hearing. [62.18] The Applicant has been in counselling for a short period of time which has been only six (6) counselling sessions. [62.19] Mental illness, namely depression, which could resurface when exposed to workplace stressors. Section 226 of the Act [63] The Tribunal must also take into account matters listed in this section of the Act in deciding whether or not there is an exceptional case. [64] The Tribunal notes that the charge initially laid against the Applicant of “procure sexual act by threat / intimidation” is categorised as a serious offence under the legislation, although the applicant conviction was for an offence other than a serious offence. [65] The offence occurred in 2007 over approximately a one (1) month period. A major consideration for the Tribunal is: has enough time elapsed since the Applicant began implementing the strategies which he says he has learned from his counselling and his online research? Can the Tribunal be satisfied he has turned the corner? [66] It is relevant that none of the witnesses considered the Applicant to be a risk to children. The Tribunal has no reason to doubt the sincerity of the witnesses. However, none of these witnesses ever thought that the Applicant would commit his 2007 offence. [67] In relation to the nature of the offence and its relevance to employment involving children, the Tribunal notes that although the offending was not -- 24 of 27 -- 25 against a child, however the complainant was in a position of dependency upon the Applicant, a position the Applicant had been in for a number of years and in which the Applicant should not have taken advantage of. The Applicant was in a position of power, authority and trust over a person in a vulnerable position when he attempted to gain self sexual gratification. [68] In relation to penalty, the Tribunal notes that the Applicant was incarcerated for approximately a three (3) month period and then placed on a good behaviour bond until December 2011. [69] Finally the Tribunal is able to consider anything else relating to the commission or alleged commission of the offence which it reasonably considers relevant. [70] The Tribunal considers it relevant that the Applicant has not, since his conviction, been placed in a power situation where he has been faced with a high level of stress where he might be tempted to misuse his power. As a consequence, he has not been tested. Conclusion [71] On the balance of probabilities, the Tribunal is satisfied that exceptional circumstances exist, and the negative notice should be confirmed. The Tribunal is satisfied that the Applicant poses an unacceptable risk of harm to children. [72] The Tribunal is concerned that the Applicant has not been tested in relation to a situation involving power, trust, and authority since the offence was committed. [73] The Tribunal is concerned that the Applicant was in a position of trust and power which he misused at the expense of a vulnerable person. There was clearly a power/authority imbalance in the relationship. Even though the Applicant‟s offence was not in relation to children, should he obtain a blue card he will be in a position of power, trust, and authority when working with children. The Applicant may be exposed to his learned behaviour with children if he has not addressed his further treatment needs. [74] It is the Tribunal‟s view that the Applicant requires further counselling to safeguard against reverting to learned behaviours if faced with stressful and powerful situations in the future. As noted above, the Tribunal does not have the benefit of an assessment by an expert addressing the question of the risk of the Applicant‟s recidivism. Such a report would have been of great benefit to the Tribunal. [75] The Applicant has presented the Tribunal with evidence of several protective factors. The Tribunal accepts that the Applicant has made some changes to his life in approximately the past twelve (12) months. The Applicant is to be commended for making the efforts he has made so far. -- 25 of 27 -- 26 [76] The notice regime is largely focused on an Applicant‟s history and the Tribunal accepts the Commission‟s concerns regarding the Applicant‟s appropriateness to hold a blue card because: [76.1] the offence was of a sexual nature. [76.2] the offence involved a breach of position of power and authority. [76.3] the Applicant was in a position of trust. [76.4] the fact that Applicant has provided a greater reflection into his consequences of his actions revolving around the impact on himself and his family. [76.5] Dr Susan McCulloch‟s evidence that the Applicant required further counselling to safeguard against reverting to his default mechanisms if faced with the position of power or stress. [76.6] Dr Susan McCulloch‟s evidence that if the Applicant is placed in a children environment when further treatment has not occurred around the issues the Applicant still needs to address, then there could be a regression to his default mechanisms and him not handling that type of environment in a productive way. [77] The Tribunal agrees with the Commission‟s concerns and believe that they raise sufficient concerns about the applicant‟s case for the Tribunal to accept that there is an unacceptable risk. [78] The Tribunal has applied the criteria set out in section 102 and for the reasons set out above the Tribunal is satisfied that by application of the law on the subject previously set out to the facts and circumstances as found by this Tribunal and the views it has formed on relevant matters this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to the Applicant. [79] The Tribunal therefore orders that the Commissioner‟s decision to cancel the Applicant‟s positive notice and blue card be confirmed. Reasons for non-publication order [80] The Tribunal is able to act under subsection (1) on the application of a party to the proceeding or on its own initiative. Both parties sought a non- publication order. The Commissioner sought such an order to include the names and any identifying information of the complainant and witnesses listed on page 2 of the report of Dr Susan McCulloch dated 2 May 2008. The Applicant did not oppose this application. The Applicant submitted written reasons in relation to a non-publication order that the decision of the Tribunal be de-identified given that there may be media attention attached to the Tribunal‟s decision which may bring unnecessary and harmful attention to the Applicant and his family, and may have an adverse effect on the complainant and her family. [81] Non-publication in the present circumstance can be justified on the basis that the publication of names and any identifying information of the -- 26 of 27 -- 27 complainant and witnesses listed on page 2 of the report of Dr Susan McCulloch dated 2 May 2008 relevant to the Applicant may have an adverse effect on the complainant and her family, and bring unnecessary attention to the Applicant‟s wife and children. [82] The Tribunal is satisfied that the publication of the name of the Applicant, the name of the Applicant‟s wife and children, the names of the complainant and witnesses as referred to on page 2 in the report of Dr Sue McCulloch dated 2 May 2008, in this decision should be prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. [83] The principles of openness and accountability can still be achieved and maintained through a non-publication order. The public interest is served by permitting the public to access details of the blue card matters, the decisions made by the Tribunal, and the reasoning behind the decisions. [84] Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of name of the Applicant, the name of the Applicant‟s wife and children, and the names of the complainant and witnesses as referred to on page 2 in the report of Dr Sue McCulloch dated 2 May 2008 in this decision. The publication of this decision and the reasons will occur, albeit de-identified. -- 27 of 27 --