AE v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 185
| CITATION: | AE v Commissioner for Children and Young People and Child Guardian [2014] QCAT 185 |
| PARTIES: | AE (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML043-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 19 September and 28, 29, 30 January 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Quinlivan Member Pendergast |
| DELIVERED ON: | 22 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Commissioner’s decision is confirmed. 2. Pursuant to section 66 of the QCAT Act the publication of the names of the Applicant and any children or young people for whom he is responsible and the names of any witnesses is prohibited. The reasons will be published in a de-identified format. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether case is exceptional |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | AE appeared for himself On 28 January 2014 he was supported by JT On 29 January 2014 was supported by PI |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian was represented by Mr Craig Capper |
REASONS FOR DECISION
AE is about 38 years of age. He was born in a central African country between 1972 and 1975.
On 11 July 2012 and subsequently on 15 August 2012 AE applied to the Commissioner for Children and Young People and Child Guardian for a Blue card.
The Commissioner issued a letter of refusal to AE on 11 February 2013. On 11 March 2013 AE sought a review of the decision. He said that the Commissioner failed to properly consider his submissions.
What is the Applicant’s version of events?
The Applicant’s story starts in a small African country. He was one of eight children. He attended school in that country where he reached the equivalent of year 11 standard before a civil war broke out. His father and three elder brothers were killed in about 1993. He says that to avoid persecution he moved with his mother and other family members to another African country.
There he lived in a refugee style facility in 1994 and 1995 where he completed the equivalent of year 11 and year 12 studies. He then undertook volunteer work at a primary school looking after and caring for young children. He had to complete 2 years of volunteer work before he could obtain a position as a fulltime prep teacher.
In 1997 a further civil war broke out and he was forced to leave and flee the country where he had sought refuge with members of his family. During the next 2-3 years he and his family were refugees in other parts of Africa. During this time his mother and some other family members were killed. He then moved to a detention centre in another country, by which time he was the eldest member of the family with only 2 younger sisters and 1 half sister surviving.
The elder of his 2 sisters was 16. She fell pregnant and gave birth to a newborn baby but she died while giving birth. As a result the Applicant was responsible for his 2 siblings who were then aged 7 and 3 as well as his niece who was the newborn baby.
He continued to live in a detention centre and got married in 1995 when he was about 24 years old. Following his marriage he had 4 children. Due to conflict with some extended family members who were threatening to kill him, he and his wife and family obtained refugee status and moved to Australia.
AE arrived in Australia on 21 February 2006 with his family. Since arriving in Australia he and his family have settled in Brisbane.
He has undertaken a significant amount of study since moving to Brisbane and has obtained various qualifications.
He separated from his wife in 2007. In 2009 he obtained a court order that makes him principal carer for his children and gives his former wife access to them. He says that he has full responsibility for his children’s health, education, religion and general wellbeing.
He claims that his ex-wife is content and happy with this situation. Two more daughters were born to the same relationship in 2007 and 2008.
Subsequently the Applicant formed a new relationship with a woman he met in a refugee camp. She came to Australia in 2005 and lived in Hobart but agreed to move to Brisbane to help him.
They became partners and have subsequently had 5 daughters together. His new partner also had 2 children from a previous relationship who are part of the extended family.
He produced evidence to demonstrate that he had signed documentation with the Department of Immigration and Multicultural Affairs undertaking to care of his sister, his half sister and his niece when they came to Australia.
At various times since his arrival in Australia, the Applicant has had up to 3 partners and responsibility in some form or other for up to 16 children.
The Applicant says that in 2008 the older of his 2 siblings left his house to live with her boyfriend for 9 months following an “unfortunate situation”. He says that her behaviour had been unacceptable for a number of months and that she would stay out all night without keeping him informed and he claims that on one occasion her boyfriend physically attacked him.
He asked her to leave the house, as her behaviour was a bad example for the other children. She subsequently returned to his house on the condition that her behaviour would change. She stayed until 2011 but her behaviour was a constant problem. Eventually he asked her to leave and find her own place to live.
The Applicant admitted that during the time his sister and half sister were living with him, on a couple of occasions they made claims to school authorities about inappropriate treatment at home. He said that these claims were investigated by Child Safety and found to be untrue.
What were the allegations that lead to this application?
AE made his application for a positive notice under section 199 of the CCYPCG Act on 20 July 2012. As part of the screening employment process the following criminal history was disclosed.
Court Date Offence Order Holland Park Magistrates Court
24 October 2011
Breach of bail condition (30/9/11)
Conviction recorded no further punishment
Brisbane Magistrates Court
14 November 2011
Rape (between 1 May 2010 and 4 July 2010)
Rape (between 4 July 2010 and 28 April 2011)
Rape (between 4 July 2010 and 28 April 2011)
Incest (between 4 July 2010 and 28 April 2011)
Incest (between 4 July 2010 and 28 April 2011)
On all charges no evidence to offer
Brisbane Magistrates Court
2 December 2011
Breach of bail condition (28 October 2011)
No evidence to offer
Brisbane Magistrates Court
21 October 2011
Breach of bail condition
No evidence to offer
The Commissioner says in relation to the charges of rape and incest that the Applicant was 34-35 years old and the complainant was his sister who was 15-16 years old. AE points out that this is not strictly correct and in his life story indicates that the complainant was, in fact, his half sister.
The Commissioner advised that the complainant made a statement to police in relation to the charges. She was able to particularise 2 distinct incidents where the applicant allegedly raped her. The complainant also made further disclosures relating to regular sexual intercourse between her and the Applicant over a period of 2 years.
It was alleged that the first incident occurred when the complainant and the Applicant were residing at an address in South Brisbane. AE disputes this.
The Police material alleged that as a result of ongoing sexual abuse the complainant fell pregnant on at least 2 separate occasions. She provided details in relation to visits to doctors’ clinics regarding her pregnancies and stated that they were both terminated on instruction from the applicant. It was alleged that the Applicant had coached her into withholding disclosure of the relationship to medical staff and public officials.
The last incident when the Applicant allegedly had sexual intercourse with the complainant was while they were residing at Upper Mt Gravatt.
As a result of the allegations the police attended relevant medical centres and obtained medical records relating to the disclosures. The police confirmed that the medical files accurately reflected what the complainant had said and that she had undergone procedures to have two pregnancies terminated.
It was also alleged that she was issued with an artificial contraceptive that she had removed after she left the Applicant’s house. The police also allegedly identified medical documents where the applicant gave signed consent authorising the complainant to be provided with the contraceptive device.
The Applicant said that from 2007 to 2011 both his sister and half sister attended a local state High School. During that time he claimed that they started to plan how they could live together along with the applicant’s niece. As part of these plans he claimed that they also made allegations regarding his niece’s welfare to school officials and child welfare officers.
In relation to his half sister, the Applicant says that at the time he discovered that she was pregnant he consulted with a local GP and was referred to the Mater Hospital, the Royal Brisbane Hospital and the Marie Stopes International Clinic. He claimed that because of her age and state of health an abortion was performed.
As her Guardian he said that he was very concerned about her welfare but after much discussion between him and her GP, his half sister resumed her school studies. He said that in 2011 his half sister became pregnant again and following another abortion at the same clinic she moved out to live with his other sister. At this time and after the second abortion the Applicant claimed that he arranged for his half sister to receive advice regarding contraception so as to avoid a further pregnancy.
Again he contended that these matters were investigated by Child Safety and found to be totally false. He said that there was a very thorough investigation where Child Safety checked the children’s schools, family friends and members of the Church congregation. He says that no action was ever taken regarding his niece’s welfare. In relation to the 2 pregnancies he says that his actions were based on the advice of their GP, doctors at the Mater and Royal Brisbane hospitals and Doctors at the abortion clinic. He denies the allegations of sexual intercourse with his half sister.
He claimed that the Commissioner placed an unreasonable expectation on him to explain his half sister’s sexual/personal life and her pregnancy terminations. He says his half sister refused to ever say who was responsible for her pregnancies until she made the complaint to the police that she has since admitted was all a lie. AE said that his half sister could provide the Tribunal with a statement about this. He argued that since the allegations against him were false, there is no other reason for him to be considered a risk to children. Therefore there are no other risk factors against him. He would therefore like to be issued with a positive notice and a blue card.
The conduct of these proceedings
This matter was listed for a directions hearing on 5 April 2013 at which time directions were given as to the filing of material in anticipation of a compulsory conference to be held on 25 July 2013 with an anticipated hearing on 12 August 2013. Subsequently the matter was listed for hearing on 19 September 2013. At that time, the Applicant advised that he intended to rely on a large number of witnesses and that the time available for the hearing would not result in it being completed. Therefore, directions were made to list the matter for a 3 day hearing commencing on 28 January 2014.
On 22 January 2014 the Applicant wrote to the Tribunal advising that he was having difficulty making contact with some of his witnesses as many were still on holidays or unavailable because of the start of the 2014 school year.
At the commencement of the hearing the Applicant indicated that a number of his witnesses would not be able to attend to give evidence due to these complications. He expressed annoyance at the constant chopping and changing of the Tribunal in relation to the conduct of his application. The Tribunal determined that the matter would proceed and that he should make all endeavours to try and arrange for as many of his witnesses as possible to be available. The Applicant in the course of the hearing advised the Tribunal that both his sister and half sister would be available to give evidence. Neither of these persons had previously filed statements pursuant to the directions provided by the Tribunal in the lead up to the hearing. However they both gave evidence in support of the applicant.
On both the first and for half of the second day of the hearing the applicant had a support person in attendance.
The law and the Commissioner’s position
The Applicant had charges for the offences of sexual intercourse – child between 10 and 16 years under authority and aggravated sexual assault – victim under the age of 16 years. It was alleged by the Police that these offences were committed against a girl who was either 14 or 15 years old.
The offences are defined as serious and disqualifying offences under the legislation. It is the Commissioner’s submission that they are directly child related and as a consequence highly relevant to the assessment of the applicant’s Blue card eligibility.
Section 221 of the CCYPCG Act requires the Commissioner or in this case the Tribunal to take into account charges as well as convictions when determining the applicant’s eligibility to hold a positive notice and blue card.
The Applicant also has a minor conviction that is not defined as serious under the Act. The Act provides that where a person has been convicted of an offence other than a serious offence, the Commissioner or the Tribunal must issue a positive notice to the applicant unless satisfied that the Applicant’s case is an exceptional case in which it would not be in the best interests of children to issue a positive notice.
The Tribunal has taken into account section 226 of the Act that sets out the criteria relevant to the determination of the issue of whether the case is exceptional.
The paramount principle in relation to any applications under the legislation is that the “welfare and best interests of a child are paramount”. Specifically in relation to child related employment screening decisions, section 155 provides that a child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
In the case of Chief Executive Officer, Department of Child Protection v Scott (No. 2) (2008) WASCA 171 at 23 it is stated that any hardship or prejudice suffered by the applicant by such a determination is irrelevant to this consideration. Likewise any benefit to children that may result from the Applicant having access to children because of his “knowledge, experience and flair in working with children” is not a relevant factor in deciding whether an exceptional case exists.[1]
[1]Grinrod v Chief Executive Officer, Department of Community Development (2008) WASCA at 289.
The task of the Tribunal is to decide whether it is satisfied that an exceptional case exists. The applicant has not been convicted of a serious offence. In the matter of CCYPCG v Eales [2013] QCAT, the Appeal Tribunal carefully considered the decisions of Maher[2] and FGC.[3] The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
[2]Commissioner for Children and Young People and Child Guardian v Maher and Anor (2004) QCA 492 at [29].
[3]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
In the decision of Eales the Appeal Tribunal further stated that
what the Act does is to require an exceptional case being established if for convictions for other than a serious offence, the Commissioner is to refuse a Blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.
In his submissions, the Commissioner confirmed the relevant provisions to be applied in this case. The Commissioner acknowledged that the Applicant is generally known in the community as a loving and caring father with well-disciplined and well-behaved children. No witnesses gave any evidence of any concern they had observed. In particular one witness said that in her long experience with the family she had seen no indicators of fear of the applicant.
The Commissioner pointed out that by way of contrast there was a vast amount of Child Safety material and many independent key statements that contained key themes of violence and threatened violence in the home, allegations of control and extreme discipline. The Tribunal accepts that the Applicant admits that he is a strict father and that he is responsible for 13-14 children across 3 households.
The Commissioner asserts that the Applicant has denied virtually every negative allegation made and doesn’t admit any others. He says that he never hits his children and only talks to them. He wants polite, well mannered, well-presented children who will make a successful contribution to the Australian community.
The Commissioner submits that the Applicant sought to control information provided to authorities and frustrate investigations. He says that there were repeated references in the material to the children being reluctant to engage with authority figures.
In relation to the evidence and appearance by the Applicant’s sister and half sister the Commissioner points out that they both gave evidence and denied every statement attributed to them. He expressed the view that this is a remarkable situation because the Applicant contended that Child Safety had fabricated every statement.
The Applicant’s sister, in particular, goes further to indicate that the material from Child Safety is “absolute lies”. The Commissioner concedes that the Applicant’s half sister has an intellectual impairment and submits that allowance was made for this during his questioning. He acknowledged that she was a vulnerable witness who sought to deny all of the extremely serious allegations that had been made by her.
The Commissioner contends that an issue for the Tribunal to determine is whether the allegations made by the half sister are in fact true. He points out that when questioned about her pregnancies and in particular who the potential fathers of the children were, there was no clear answer.
The Commissioner also refers to the inquiries made regarding whether the Applicant’s half sister had been diagnosed with Chlamydia. He says that those enquiries were contemporaneous with the Applicant seeking medical treatment for the same condition. The Commissioner argues that a reasonable suspicion might be drawn from the coincidence of this medical evidence that both the applicant and his half sister were involved in a sexual relationship.
The Commissioner argues that other potential fathers should be discounted by the evidence, in particular, a 12 and a half year old neighbour who had been friendly with the Applicant’s half sister who was investigated and interviewed. However the Commissioner submits that there was no convincing evidence of any sexual relationship between the two.
As a consequence the Commissioner submits that the issue for the Tribunal is to determine what weight should be given to the various versions of events provided by the Applicant’s sister and half sister.
The Commissioner submits that it is apparent that the Applicant controls everything – money, school and the children’s behaviour. The Applicant says that it is just good parenting.
The Commissioner acknowledges the evidence from the sister and half sister to the effect that they wanted more freedom and independence but asserts that this does not explain the consistency and nature of the allegations that were made.
The Commissioner raises the issue of whether the Tribunal can rely on the Child Safety material. He says that the sister and half sister wanted to support the application by the Applicant for a Blue card “out of loyalty” for all he had done for them during some very difficult years in detention centres, etc.
The Commissioner also refers to the various referees and points out that the psychological report talks about the benefit to the Applicant and to his welfare of being able to obtain a blue card. He says that the premise of the report from the psychologist is flawed because it was based on an understanding that the Applicant had been found not guilty of the various offences. He submits that the Psychology Report did not address the risk of harm to children and only cursorily dealt with any insight demonstrated by the Applicant into his alleged offending and its impact, any risk factors or triggers and protective factors and any preventative strategies
The Commissioner submits that the evidence from the other witnesses is focussed on seeking assistance for the family and asking for help.
The Commissioner addressed a document that was provided by the Applicant that appeared to be a record of a meeting between the Applicant’s sister and half-sister at a Youth Advocacy Centre. He expressed concern as to whether this was a genuine document as there was no evidence as to its veracity.
The Commissioner asked how it came into the Applicant’s possession. The Applicant said that the document was received in the mail. The Commissioner suggests that it raises a concern that the Applicant’s sister and half sister were coached to frustrate the investigation.
In essence the Commissioner submits that the focus following the allegations against the Applicant regarding his sexual relationship with his half sister was on getting her out of the situation.
The Commissioner urged the Tribunal to consider that the Applicant has shown no insight or remorse in relation to the matters that have occurred. He has demonstrated no reflection on his own behaviour simply asserting that the alleged events did not occur. He expressed no understanding of the impacts of sexual abuse and would not explore or talk about the risks involved.
The Applicant expressed his strong view that the whole approach of the Tribunal was harmful to him, inconveniencing his witnesses and preventing him pursuing a career. The Commissioner submits that the Applicant will not accept responsibility because he believes he is a victim.
In response to the allegations against him, the Applicant submitted that he is proud that he was present at the hearing, that he has been listened to and that he thinks he has value and can offer value to the community. He expressed suspicion and concern about the role of the police and Child Safety. He pointed out that the Prosecution dropped the charges against him.
He apologised because he said that he thought that the application was about the charges that had been brought against him and didn’t understand the full scope of the hearing. He submitted that he tried to show the Tribunal that he didn’t attack his half sister, despite the grave harm that her false allegations had caused him.
He says that the Commissioner’s representative confused him during the course of the hearing. He submitted that the paperwork that he provided to the Tribunal shows how he looks outside of the hearing and in the general community. In relation to the pregnancies experienced by his half sister he said that he was shocked by the first pregnancy and he took his half sister to get help. He said his half sister could not look after herself so he gave her advice but she didn’t listen to him because she saw him as trying to control her.
He blamed his sister who he says took advantage of the situation to get his half sister out of the house and move her to live with her. He says that he was involved in getting them a commission house. He also says that he felt that his sister and half sister were endeavouring to get their other younger sibling away from him as well. In doing all of these things the Applicant says that they forgot all the things that he had done for them and were motivated by their desire to be part of a much less disciplined and constrained lifestyle than they had had in his home. He pointed out that he does not know where they live but at the same time they were prepared to come and attend at the hearing. He also indicated that his sister had asked him to “stand” at her wedding the previous year.
He pointed out that his half sister has an intellectual disability and inferred that this may affect her comprehension of the veracity and seriousness of the allegations that she had made against him.
The Applicant makes strong reference to the material that he provided to the Tribunal as demonstrating that he is acknowledged as a good person in the community. He says that he gets help from the community and as a result he likes to help the community as well. The Applicant impressed the Tribunal as being extremely articulate and clearly very intelligent.
He admits he is very strict and controls the money in the households. He says he tries to provide balance and limits money to the various household members unless they need it. This is particularly in relation to the provision of day-to-day funds for school activities and similar matters.
In relation to the allegations made against him, the Applicant describes these as a “lot of lies”. He suggests that there are cultural issues involved and that some of the things that have been said are misinterpreted and not what was actually said. He says that these are serious matters and nothing that has been said during the hearing can make him guilty. He claims that he understands about protecting children and he will never give up in his determination to prove himself right. He said that God may bring the truth out.
The Applicant said that he wanted the Tribunal to offer him a Blue card. He said organisations have the ability to take action if they see something that needs to be done. In particular he pointed out that it is the role of Child Safety to take children away but they did not take his children away in response to the allegations that had been made against him. Therefore he argued that the action of the Department had validated his position.
Matter of concern
During the hearing the Tribunal received evidence regarding a relationship that the Applicant had with another young woman. The initial information received by the Tribunal would suggest that this young woman was born in March 1993 which, based on the evidence available, would suggest that she gave birth to the Applicant’s child when she was 16 years and 12 days old, at that time. The applicant was 37 or possibly 34 years of age at the time the child was born. However the evidence was equivocal and there was other evidence that suggested that the relationship between the Applicant and the mother of this child started when the young woman was 17 years of age and in grade 12 at high school.
When the young woman fell pregnant the evidence was that her own family disowned her and have not had contact with her or the child since its birth. The Applicant produced other evidence that shed further doubt on the age of this young woman.
Overall, the Tribunal has not given any weight to these matters.
Should the applicant receive a positive notice and a blue card?
The task for the Tribunal in this matter is to determine if this is an “exceptional case” in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
We accept that when considering if this is an “exceptional case” the approach that we must adopt is to consider the application of the concept of an “exceptional case” unhampered by any special meaning or interpretation.[4]
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
We have considered the various potential risk factors and protective factors that have been identified. The Commissioner argues that the applicant has failed to acknowledge any responsibility whatsoever regarding the allegations brought against him especially his half sister but also as detailed in the various reports from Child Safety. Consequently the Commissioner points out that the applicant has failed to express any insight or remorse in relation to his alleged conduct. We note that the allegations all involved incidents relating to children or young people for whom he is responsible.
The Commissioner points out that AE in his written and oral submissions contends that there is a lack of understanding on the part of authorities about his culture and his discipline of those children and young people for whom he is responsible. Further AE claims that it is his half sister and sister who have lied in their allegations. These lies he says have been embellished as a consequence of the involvement of the various individuals to whom complaints and allegations have been made.
The Applicant has conducted these proceedings by himself, albeit with a support person on both the first and second days of the hearing. He has raised his concern about the availability of witnesses in spite of the extensive directions provided by the Tribunal to endeavour to ensure that he is afforded natural justice and is able to produce the evidence that he believes is relevant to these proceedings.
Throughout the conduct of the proceedings the applicant has demonstrated a range of emotions to the Tribunal. He has been single minded, argumentative and determined in his approach. At times he has appeared hostile, suspicious, confused but at the same time passionate about his children’s future.
In relation to the allegations against him the applicant has on occasions been vague, unresponsive and defensive as well as confrontational.
The Commissioner points out that the applicant has criticised the role of the police, the Child Safety Department and the Commissioner and has expressed his frustration because they have questioned his cultural, religious and parenting abilities. He appears to rationalise his responsibility in relation to these matters and in particular in relation to the extensive records maintained by the various organisations that have had dealings with his families.
The Tribunal has had the benefit of hearing evidence directly from AE, his current partner, his sister and half sister who was the source of the primary allegations against him. The Tribunal is satisfied that the applicant is very frustrated and angered by what has occurred.
The Tribunal has considered the evidence provided by all of the applicant’s witnesses in particular his partner and 2 siblings. The Tribunal was left with the clear impression that both his sister and his half sister gave evidence under a sense of obligation or responsibility for the likely damage that has been caused to the applicant by the allegations that were made.
Clearly both his siblings found themselves in a difficult situation. The truth of their allegations has not determined but it is clear to the Tribunal that the allegations have been repeated on numerous occasions to various independent persons and bodies.
For whatever reasons the siblings and in particular the Applicant’s half sister appear to be attempting to redress a situation that has spiralled out of their control.
It is not the role of this Tribunal to determine the truth of the allegations. However the Tribunal is satisfied that the evidence provided by the Applicant’s partner and his 2 siblings is not an accurate account of the situation. The Tribunal is conscious and places great weight on the Commissioner’s submissions that it must consider the best interests of children and not any benefit or detriment that the applicant may suffer if he were not to get a blue card.
We have taken into account that AE has been convicted of an offence that is not defined as a serious offence and did not involve children. The Court did not record a conviction in relation to that offence and as a result the Tribunal accepts that the Court decided on a lenient approach.
The Tribunal has taken into account the substantial amount of material received from Child Safety and the history as outlined in that material. The Tribunal accepts that the Department has previously chosen not to take any formal action but is still mindful of the serious nature of the allegations that have been raised against the Applicant.
The Tribunal has taken into account the various references provided by the Applicant. As would be expected those references are largely very positive towards the applicant and he submits that they should be given great weight.
The difficulty for the Tribunal is that the allegations raised against him have largely taken place in the privacy of the Applicant’s own home with no other independent witnesses present. The Tribunal was satisfied however that the referees provided by the Applicant were impressive to the extent of their knowledge of events.
A major concern for the Tribunal is the unequivocal denials by the Applicant of any responsibility for any of the conduct that has been alleged against him. The psychological evidence does not assist the Tribunal to determine the level of insight he has or the potential risks of him being granted a Blue card and positive notice.
The Applicant has placed great weight on his attitude of strong discipline for those children he is responsible for and this presents as a concern to the Tribunal in the context of the Applicant seeking employment in any environment where children with challenging behaviours may be involved. The Tribunal has considered the fact that a Blue card is transferable and is not satisfied that the Applicant has demonstrated that he has addressed the concerns identified by the Commissioner.
The Tribunal is satisfied that the Applicant is a man who is anxious to ensure that his children and those young people he is responsible for are successful adults who contribute to Australian society. However the Tribunal has considered all of these matters and has come to the view that this is an “exceptional case” where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to the Applicant at this point in time.
The challenge for the Applicant is to address the allegations which have been brought against him in the context of his understanding that even if these allegations are not true, they have been raised as a consequence of the treatment that his sister and half sister may have received while in his care. These are significant matters that will need to be addressed in any future application.
The Commissioner has sought a non-publication in relation to these reasons and the decision in this matter. He has submitted that it would not be in the interests of the children involved for the details to be published. He also points out that it may be contrary to provisions of certain other legislation. The Applicant has sought to have the reasons published in an identified format to demonstrate to the children exactly what has taken place. Again the Tribunal finds that this demonstrates a further lack of insight by the Applicant.
The Tribunal has determined that it is in the interests of the children and young people who are subject to the Applicant’s responsibility that an order is made, so that the children are not able to be identified in any way.
Accordingly the Tribunal makes the following orders:
1. The Commissioner’s decision is confirmed.
2. Pursuant to section 66 of the QCAT Act the publication of the names of the Applicant and any children or young people for whom he is responsible and the names of any witnesses is prohibited. The reasons will be published in a de-identified format.
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