Ali v Commissioner for Children and Young People and Child Guardian [2012] QCAT 717

CITATION: Ali v Commissioner for Children and Young People and Child Guardian [2012] QCAT 717 PARTIES: Mr Akhman Ali (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML118-11 MATTER TYPE: Children‟s matter HEARING DATE: 23 February 2012 HEARD AT: Townsville DECISION OF: Julie Ford, Presiding Member Katherine Lindsay, Member DELIVERED ON: 22 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice is set aside and a positive notice be issued forthwith to Mr Akhman Ali. 2. The Tribunal prohibits the publication of the names of the referees and of the organisations in the decision relating to application number CML118-11. CATCHWORDS : Suitability to work with children – whether an exceptional case exists – criminal history Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Commission for Young People v V [2002] NSWSC 949 McDonald v Director General of Social Security [1984] FCA 57 -- 1 of 12 -- Commission for Children and Young People and Child Guardian Act 2000, ss 5, 6, 155, 226 and 360 Criminal Code Act 1899, s 359F Queensland Civil and Administrative Tribunal Act 2009, ss 6, 9, 19(c), 28(3) and 66 APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Akhman Ali – self represented RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms Karen Alton REASONS FOR DECISION Background [1] Mr Ali had been working as a bus driver when an application was made for him to be granted a positive notice (blue card) to work with children on 9 June 2010. [2] The Commissioner for Children and Young People and Child Guardian (the Commissioner) had undertaken a criminal history check. Of note was that Mr Ali had been convicted of unlawful stalking on 4 September 2001. [3] Mr Ali and his wife had been jointly charged with one count of stalking his next door neighbour and her husband (count 2), between 1 August 1999 and 5 November 2000. Mr Ali was convicted of count 1 but acquitted of count 2. Mrs Ali was found not guilty on both counts. Mr Ali was sentenced to three years imprisonment. Mr and Mrs Ali were restrained from having any contact with the complainants under s 359F of the Criminal Code. [4] Evidence from the trial involved several aggravating features including setting up what appeared to be surveillance cameras directed at his neighbour; shining floodlights into the neighbour‟s yard; throwing objects over the fence; yelling obscenities; making sexual comments to the neighbour; setting up crucifix crosses on the fence to „exorcise the devil‟ being the neighbour‟s husband. [5] Mr Ali had appealed the conviction and the sentence imposed but the appeal was dismissed (former) and refused (latter) on 15 March 2002 by the Court of Appeal. -- 2 of 12 -- [6] On the information provided, the Commissioner was satisfied that the issue of a positive notice and blue card to Mr Ali was contrary to the best interests of children and young people in the circumstances. Mr Ali was issued with a negative notice on 19 July 2011. [7] On 10 August 2011 Mr Ali made an application to the Tribunal for review of this decision. [8] A compulsory conference was held on 12 October 2011 and, as the issue in dispute was not resolved, a one day hearing occurred in Townsville on 23 February 2012. Relevant Legislation [9] The jurisdiction to hear and determine this review matter is established under the Queensland Civil and Administrative Tribunal Act 2009 ss 6 and 9 and Chapter 2, Part 1, Division 3. The Tribunal stands in the place of the original decision maker under s 19(c) and is able to consider material not previously available to the Commissioner under s 28(3). The Tribunal must ensure that it has, as far as is practicable, all relevant material before it. [10] The object of the Commission for Children and Young People and Child Guardian Act 2000 (the Act) is to promote and protect the rights, interests and wellbeing of children in Queensland (s 5). Chapter 8 of the Act requires that decisions must be made under the principle that the welfare and best interests of a child are paramount. The Tribunal is required to consider the same principles as the Commissioner. [11] The Act is not a statute intended to impose additional punishment on a person who has criminal history. Rather, it is intended to put gates around employment to protect children from harm. [12] The Commissioner, and thus the Tribunal, must have regard to s 226(2) of the Act. Mr Ali‟s offence is not a serious offence and thus the Commissioner was required to issue him with a positive notice unless satisfied that, with the paramount consideration in mind, the case is an exceptional case for Mr Ali not to be granted a positive notice. The matters prescribed are not to be considered in isolation. Section 226 also allows for decision makers to consider anything else relating to the omission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. [13] 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. [14] The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v -- 3 of 12 -- Maher and Anor1, the Queensland Court of Appeal, at paragraph 30, adopted the submission 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 exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.‟ [15] While a standard of proof is to be satisfied, there is no onus of proof on either the applicant or the respondent. There is a wealth of case law that supports this proposition with the leading authority being McDonald v Director General of Social Security2. [16] The Tribunal is bound by s 360 of the 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 ss 5, 6 and 155 of the Act and it is this consideration that all others must yield. [17] In Maher‟s case 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. [18] Risk factors may vary from the perspective of the assessor, but more particularly will vary according to the known facts. Risk in the context of the Tribunal is not concerned with what may be mere possibilities, but rather will require some foundation in fact. The Tribunal is looking at whether, in all circumstances, there is real and appreciate risk. It does this as part of its consideration of whether exceptional case exists. [19] The Tribunal is guided by the judgement of Young CJ in Eq Commission for Young People v V [2002] NSWSC 949 in [42] of his judgement where he refers to the necessity to find “a real and appreciable risk” to the safety of children. [20] Both written and oral evidence was provided to the Tribunal and has been considered in the Tribunal‟s deliberations. The Tribunal must consider the intention of the legislation, the emphasis on the discretionary rather than the prescriptive approach to the concept of exceptional case, and the factors in combination that may constitute exceptional case. The Commissioner’s submissions [21] The Commissioner took into account the following from Mr Ali‟s written submissions:  The Applicant commented on his strong work ethic and good employment history 1 [2004] QCA 492. 2 [1984] FCA 57. -- 4 of 12 --  He said that he works well with people of all ages including children  He is involved in community work as Vice President of a community organisation  He completed an anger management course in jail, and  The applicant‟s referee commented on his good character and respectful treatment of others. He states that he was not aware of any adverse incidents involving children. [22] The Commissioner considered that Mr Ali‟s “criminal history demonstrates a potential to engage in serious harassing, intimidating and threatening conduct over a prolonged period of time in response to conflict in order to achieve his desired outcome”. The offending occurred over a 14 month period from March 1999 to April 2000. Mr Ali was sentenced to three years imprisonment. The Commissioner considered that “the applicant was either in incarceration or subject to strict parole conditions for a substantial period of time in the last ten years, which would have impacted on his ability to engage in further offending”. [23] The unlawful stalking offence resulted in the complainant suffering “a great deal of distress and fear for her safety which led to medical conditions such as headaches. The complainant and her husband also suffered financial consequences as they had to pay two mortgages”. In response to a neighbourhood dispute, “he was deliberately causing the complainant and her husband to suffer significant emotional harm until they moved out of their property.” [24] The Commissioner further asserted that “the applicant‟s malicious and threatening behaviour in response to personal conflict is of direct relevance to his eligibility to work with children where situations of conflict may be expected to occur, and also suggests that he may present as a poor role model to children and young people in his care” [25] The Commissioner was not satisfied with the submissions provided by Mr Ali before issuing the negative notice. She could not place any weight on Mr Ali‟s assertion that he did not receive a fair trial. That the appeal against the conviction and sentenced were both dismissed was taken into account. Mr Ali had not demonstrated any remorse for the offending and its impact on the complainant, minimising his responsibility for the offending. The Commissioner acknowledged that Mr Ali had stated in his submissions that he “has chosen to reform himself and my thinking”, however in the light of the other submissions suggesting an absence of remorse or insight she could place little weight on this statement. [26] Similarly limited weight was placed on the referee statement provided to the Commissioner as there were very limited comments on Mr Ali‟s interactions with children and no knowledge of the offending was evident. [27] The Commissioner concluded that “in the light of the above issues, and in particular the applicant‟s ongoing tendency to minimise his offending -- 5 of 12 -- and his failure to demonstrate remorse for the offending, I am unable to conclude that the risk factors raised by the applicant‟s police information are outweighed by the supporting material provided by him and on his behalf and the lapse of time since the offending”. Mr Ali’s Evidence [28] Mr Ali stated that he has been married for 33 years with three children. He has two children at High School and one child who is in the final year of economics at university. He does not drink alcohol or take drugs. [29] Mr Ali gave evidence that he holds a law degree and is the Vice President of a community organisation in Townsville. He had travelled to Melbourne to undertake his articles. He had tutored at James Cook University for a few years and the ATSI Education Centre. In 1999, the period of the offences, he was travelling between Melbourne and his home, six weeks on and two weeks off back in Townsville. It was a stressful time travelling between two places to finish his articles. [30] Mr Ali stated that the offence for which he was charged came about from a dividing fence neighbourhood dispute. The neighbours moved in several months after the Ali's. Mr Ali had not been paid for the fencing work undertaken. He stated he was not home half of the time of the complaints made about him. He stated that cigarette butts were thrown onto their property; water was used to flood his property. He had erected the crosses on the fence line in response to placards being put on the fence “go home coons”. He acknowledged that things got out of hand. Things became more bitter between the neighbours and his family. It escalated, “tit for tat”. They had put a cold water hose on his dog at midnight and threw bricks at the dog. [31] Mr Ali stated that his sons knew of the neighbours‟ actions, hearing the term “black bastards” being called out from the neighbour. Two of their friends gave evidence at the court case. At the time the neighbour‟s two children would have been in their teens. [32] Seven supporting witnesses had given evidence at the trial which he stated also showed the racist taunts he and his family had endured. Neighbours had given evidence of seeing placards with racial themes. [33] Mr Ali maintained his belief that his evidence was not considered fully by the sentencing judge. The neighbour‟s husband was a prison officer and he did not believe the racial taunts made against his family were considered. He had been let down by the justice system. [34] Mr Ali served 19 months in prison. His family continued to live in the same house and survived on savings and Centrelink payments. While in prison he commenced a Masters in Law through the University of New England. He wrote letters for prisoners to the parole board and their families. He undertook an anger management course. He kept occupied by doing whatever he could that was offered in the way of courses. -- 6 of 12 -- [35] Mr Ali stated that „he went to pieces‟ on leaving prison, he lost the will to complete his masters, and he was unemployed. His wife was receiving counselling as she had had a nervous breakdown and was on sedatives. He did not have counselling, believing that he was strong enough to give it time. He thought counselling would make him appear „weak minded‟. He believed in dealing with problems himself. [36] Mr Ali got a truck licence and commenced worked as the bus driver at a High school. He lost this position due to the negative notice. [37] If a similar dispute occurred again, Mr Ali stated he would go to the police. With the dispute in 1999, he did not want to be seen as an informer. He would move away, return to Melbourne, and retreat as quickly as he could. He would not go „tit for tat‟ again, aiming for a more peaceful approach to resolve the problem. Dr M’s Evidence [38] Dr M has known Mr Ali since 2004. He considers him to be a hardworking man who is sincere and trustworthy. He acknowledged that the circumstances behind the stalking conviction were not entirely known to him. Even so, he still considered Mr Ali to be a man of character, respectful of his wife and children and he saw him twice weekly. At no time did he have concerns for the welfare of children in regards to Mr Ali‟s behaviours or demeanour. Dr K’s Evidence [39] Dr K has known Mr Ali for eight years, originally when Mr Ali was working as a handyman. They became friends as they could both converse in Hindi. He was not aware of the “intricate details” of the conviction against Mr Ali, but once made aware of the specific details of Mr Ali‟s previous offences by Ms Alton, Dr K expressed that he did not have concerns regarding Mr Ali‟s suitability to work with children. Mr Ali has visited his home on a number of occasions, undertaking handyman jobs and mowing lawns at his medical practice. He had laid some astro turf in the children‟s area of the surgery. Mr Ali‟s family members are patients of Dr K. He was not aware of any concerns regarding Mr and Mrs Ali‟s marriage. [40] Dr K stated that he had never seen Mr Ali angry, he was jovial and friendly. He had never visited Dr K as a patient with anger issues. He counselled Mr Ali to stop worrying about the conviction and acknowledged that he thought Mr Ali had been badly done by with the whole affair. Even with the full summary presented by the representative for the Commissioner at the hearing, Dr K still held the view that he was a suitable person to work with children. Discussion of the Evidence/Application of the Law -- 7 of 12 -- [41] The Tribunal must consider whether this is an exceptional case in which it would harm the best interests of children if Mr Ali were to hold a blue card. He has not been convicted of a serious offence, in accordance with the Act. The Tribunal must also consider the factors in s 226(2) of the Act. [42] Mr Ali has a conviction. On 4 September 2001 he was imprisoned for an unlawful stalking offence (between 1 March 1999 and 27 April 2000) of his neighbour who was a female with two teenage children. Mr Ali was not found guilty of stalking her husband. [43] A restraining order was also made against both he and his wife from having any direct or indirect contact with these neighbours for 15 years. An appeal against the conviction was dismissed and an application for leave to appeal against the sentence was refused in the Court of Appeal Queensland. [44] The Commissioner concerns with the nature of the offence are reasonable. The Commissioner placed great weight on the police brief and sentencing transcript. There is evidence that Mr Ali set up „surveillance cameras pointing to the neighbours; he turned flood lights on at night knowing the husband was a shift worker; he threw objects into the yard; he yelled obscenities; Mr Ali followed the complainant; he made salacious comments. [45] In Mr Ali‟s defence there is also information that he and his family were subject to racist comments by the neighbours and items were thrown over their fence as well; his dog was hosed down by the neighbours at night. [46] What started as a neighbourhood dispute regarding a dividing fence escalated into a serious campaign of harassment. [47] Mr Ali did not demonstrate any insight into this harassment at the time, with evidence that he persisted even after receiving a letter from the neighbour‟s solicitor and being cautioned by the police a number of times. The female neighbour‟s health was adversely affected by Mr Ali‟s actions. The neighbour‟s moved to another home, paying for two mortgages before selling the property next to Mr Ali. [48] It was noted, that in the Court judgements at the time that Mr Ali set up crucifixes on the fence line to drive away the devil (the husband) which allegedly hindered the capacity for the neighbour‟s to sell their home. This is extreme behaviour which was not adequately explained by Mr Ali. He was considered by the sentencing judge to undertake a prolonged spiteful, hateful campaign to drive the neighbour‟s from their home. [49] Mr Ali informed the Tribunal, that during the time the events between him and the neighbours had escalated, he was travelling extensively between Melbourne and Townsville, being away from his family for several weeks at a time. He was not earning a large income, undertaking -- 8 of 12 -- his Articles for a Melbourne law firm. He had a family to support. There is evidence of racial intolerance on both sides of the neighbourhood fence. These factors do not minimise the severity of the offences, but places in context the pressures being experienced by Mr Ali at that time. [50] Is this offence relevant to employment that involves children? The Commissioner‟s view is that the offence demonstrates a potential to engage in serious, intimidating and threatening conduct in order to achieve Mr Ali's desired outcome. There is concern for Mr Ali‟s capacity to deal with personal conflict appropriately. It is asserted that Mr Ali‟s „malicious and threatening behaviour‟ in response to personal conflict is of direct relevance to his eligibility to work with children where situations of conflict may be expected to occur. Mr Ali may present as a poor role model as well. [51] Having read the judgements relating to Mr Ali‟s offences, it appears that there was no mention of children being present or any impact Mr Ali‟s behaviour may have had on them. None the less, the Tribunal acknowledges that it would have been a very stressful time for both Mr Ali‟s children and the neighbour‟s teenage children and that Mr Ali‟s behaviour at the time should not be condoned. [52] Mr Ali has been engaged with children since being released from his imprisonment several years ago. His referees, both doctors, believe that Mr Ali does not demonstrate threatening behaviour and they have seen him engaged with children. He worked with children and young people driving a school bus, with no reports of inappropriate behaviour. It is not unreasonable to conclude that the stressful environment of daily interaction with teenagers as a bus driver did not lead Mr Ali to the extreme actions of the past. For Mr Ali to hold a senior position within the Islamic community suggests that he is considered to be an appropriate role model in that context. [53] Mr Ali served 19 months in prison. The Tribunal agrees with the Commission that the significance of the 15 year restraining order reflects the Judge‟s consideration of the offence, the impact on the complainant and the lack of remorse at that time. Mr Ali still struggled with an appreciation of the extent of the adverse impacts of the offence on his previous neighbours. He considered he and his wife experienced stress, but was not forthcoming in his insights into the “great deal of distress and fear for (the complainant‟s) safety” that was of concern to the Commissioner. He still considers it to be a neighbourhood dispute that got out of hand, on both sides. He feels aggrieved that justice was not properly served. [54] However, Mr Ali was able to articulate how he would react if such a dispute occurred again. He is much more cautious and reflective about taking matters into his own hands. He now believes he would go to the police and if necessary move away from the environment. He does not consider counselling helpful, that he must deal with pressures himself, and not be weak. He accepted the need for his wife to receive -- 9 of 12 -- counselling due to depression caused from the whole affair. He was able to appreciate the possible impacts on the teenage children of the neighbours, on reflecting on what his children heard and thus experienced. [55] What else is relevant and should be considered in this review matter? Risk factors regarding Mr Ali’s suitability to hold a blue card [56] Mr Ali continues to have limited insight into his offending behaviours relating to the unlawful stalking conviction, whether he was unjustly served in the criminal court arena or not. [57] He is able to articulate the toll the whole affair took on his wife and himself, but struggles to acknowledge the damage (both emotional and financial) done to his previous neighbours. [58] He has not had counselling to address the extreme behaviours that emerged back in 1999. Protective factors regarding Mr Ali’s suitability to hold a blue card [59] Mr Ali has found solace and purpose in the highly valued role of Deputy President of a community organisation. [60] His referees still consider him to be a man of integrity and trustworthy, even against the background of his offending past. [61] There is no further evidence of Mr Ali behaving in an inappropriate or abhorrent manner within a family, neighbourhood, social or work context since 2000. [62] Mr Ali did utilise his time proactively while in prison, commencing a Master‟s degree, assisting other prisoners and undertaking an anger management course. [63] He remains married and his children are engaged in education and tertiary study. Mr Ali is focussed on continuing his role as husband, father and provider. [64] Mr Ali is enmeshed in the Muslim community in Townsville. He has developed friendships and positive working relationships with medical professionals who also hold status within the community. [65] There has been no criminal history since 2000. Conclusion [66] On all of 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 Mr Ali to be issued with a positive notice, a blue card to work with children. -- 10 of 12 -- [67] While appreciating the Commissioner for Children and Young People and Child Guardian‟s position, there is adequate evidence to demonstrate that there is not a real and appreciable risk that Mr Ali would harm children whilst employed or in undertaking volunteer work. The protective factors outweigh the risk factors in this case. [68] Mr Ali committed an offence that led to the conviction of unlawful stalking of a female neighbour in 2001. His actions were not targeted at children specifically, even though teenagers and his own children lived in the homes affected by the dispute between the adults. The evidence and the trial judge‟s decision and reasons were damning at the time. Mr Ali did not present as a credible defendant. [69] Mr Ali‟s actions have had considerable consequences for his family and his career. He experienced a period in prison and witnessed his wife fall into depression due to the strain of the conflict and subsequent trial. He himself struggled emotionally upon being released from prison, where he had sought anger management strategies and commenced a Master‟s degree in Law. [70] It is acknowledged by the Tribunal that Mr Ali continues to have limited insight and limited remorse for his actions in dealing with conflict that escalated with neighbours. However, he is now able to provide credible examples of how to resolve conflict in a more cautious and rational manner. He has not been convicted of any further offences nor is there evidence of further abhorrent behaviour on his part. [71] Mr Ali holds a position of high status within the Muslim community and a meaningful role within this community. He is welcomed into the homes of credible witnesses who are medical professionals and who are aware of the protective requirements for children in Queensland. While not seeking counselling to address managing conflict, Mr Ali has come through his own emotional challenges. He retrained and found work post prison term, remains in an enduring marriage and supports his sons in their education and career pursuits. Of a significant protective factor is that he is enmeshed in a close Muslim culture within Townsville. [72] The Tribunal orders that the Commissioner‟s decision to issue a negative notice to Mr Ali is set aside and a positive notice be issued forthwith. Non – Publication Order [73] On its own initiative, the tribunal is able to make a non-publication order under s 66 of the QCAT Act. The Commissioner does not oppose the making of such an order, to the effect that the decision be de-identified. [74] The Tribunal is satisfied that it is contrary to the public interest that the names of the witnesses, and the organisations named in this decision should be identified. -- 11 of 12 -- [75] The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of blue card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified. -- 12 of 12 --