Anderson v Commission for Children and Young People and Child Guardian
[2010] QCAT 671
•24 December 2010
| CITATION: | Anderson v Commission for Children and Young People and Child Guardian [2010] QCAT 671 |
| PARTIES: | Mr Michael Anderson |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML082-10 |
| MATTER TYPE: | PRESIDING MEMBER: Mark Johnston |
| HEARING DATE: | 18 November 2010 |
| HEARD AT: | Cairns Courthouse 5 Sheridan Street CAIRNS QLD 4870 |
| DECISION OF: | Mr Mark Johnston |
| DELIVERED ON: | 24 December 2010 |
| DELIVERED AT: | Cairns Courthouse 5 Sheridan Street CAIRNS QLD 4870 |
ORDERS MADE: | 1. That the decision of the Commissioner for Children and Young People and Child Guardian made on 14 April 2010 to issue a negative notice to the Applicant MICHAEL JAMES ANDERSON is SET ASIDE; 2. That a positive notice be issued forthwith to the Applicant MICHAEL JAMES ANDERSON |
| CATCHWORDS : | Suitability for Blue Card - Young offender - serious drug charges - whether an exceptional case exists- assessment of unacceptable risk of harm. |
APPEARANCES and REPRESENTATION:
| APPLICANT : | Mr Michael Anderson self represented. |
| RESPONDENT: | Commission for Children and Young People and Child Guardian represented by Ms Karen Alton. |
REASONS FOR DECISON
BACKGROUND TO THE PROCEEDINGS
[1] The relevant legislation that applies is the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”) as amended and the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
The current Act is the Act that came into force on 1 October 2010 [Reprint 8B], and this Act is to be applied.
Application history
On 17 August 2009 an application for a positive notice and blue card was lodged at the Commission for Children and Young People and Child Guardian (“the Commission”) on the basis that Michael James Anderson (“the Applicant”) was an adult occupant in a Family Day Care setting.
The Queensland Police Service provided a copy of the criminal history[1] recorded against the Applicant, and Police Court Briefs (QP9s) detailing the particulars of the relevant offences recorded on the Applicant’s criminal history.
[1] Defined at Schedule 7 of the Act.
By letter dated 11 November 2009, the Applicant was invited to make submissions about why the Commissioner should not issue a negative notice. The Applicant provided submissions and supporting references.
On 14 April 2010 the Applicant was issued with a negative notice and the blue card was refused for the reasons set out in the accompanying Reasons document.
On 5 May 2010 the Applicant filed for a review of the Commissioner’s decision with the Queensland Civil and Administrative Tribunal (“the Tribunal”)[2], within the timeframe provided for under section 353 of the Act, and section 33(3) of the QCAT Act.
[2] Under section 354 of the Act.
A Directions Hearing was listed before the Tribunal on 13 July 2010, and a Compulsory Conference was held on 27 August 2010.
Relevant legislation
Jurisdiction
Jurisdiction for the Tribunal to hear and determine this matter is established under sections 6 and 9; and Chapter 2, Part 1, Division 3 of the QCAT Act, and section 354 of the Act. Under section 19(c) of the QCAT Act the Tribunal stands in the place of the original decision-maker, the Commissioner. However, under section 28(3) of the QCAT Act the Tribunal is able to consider fresh material not previously available to the Commissioner, and is required under section 28(3)(e) to ensure it has, so far as is practicable, all relevant material before it.
The Applicant’s activities are regulated activities pursuant to Part 1 of Schedule 1 of the Act.
The decision making process
In this matter, section 226 of the Act provides that the decision maker must have regard to the following in making a determination:
(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;
(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.
The Applicant has convictions for offences other than a serious offence[3] as defined under section 167 of the Act. Accordingly, section 221(1)(c) and 221 (2) of the Act provide that the Commissioner, and upon review 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.
[3] Defined at section 167 of the Act.
The term exceptional case is not defined in the Act, and case law has considered its meaning, as detailed under paragraph 5 of the Respondent’s Reasons document, to “…take it out and beyond the ordinary circumstances reasonably expected to occur”[4], and must be “…of the nature of or forming an exception; out of the enduring cause, unusual, special”[5]. This view was supported by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor[6] (Maher’s case).
[4] In the Marriage of Sandrk(1991) 104 FLR 394 at 399-400.
[5] Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288.
[6] [2004] QCA 492.
Further, the (former) Queensland Children Services Tribunal held, in its decision of OAA Re [2006] QCST 14, that in determining whether an exceptional case exists, the principles considered in the Family Law jurisdiction can be transferred to the child protection jurisdiction, and consideration is to be given as to whether the Applicant presents an ‘unacceptable risk of harm to the children of Queensland’[7].
[7] As discussed at paragraph 41.
Harm is defined in the Act to ‘have the same meaning given in the Child Protection
Act 1999, section 9[8], namely:
[8] Schedule 7 of the Act.
(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a)physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Maher’s case, 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.”
However, the Respondent submitted that 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 caselaw that supports this proposition with the leading authority being McDonald v Director General of Social Security[9].
[9] [1984] FCA 57; (1984) 1 FCR 354.
Importantly, the Tribunal is bound by section 360 of the Act to make a determination on review upon the principle that the welfare and best interests of children are paramount. This paramount principle is also encompassed and reinforced under sections 5; 6; and 155[10] of the Act, that also bind the Tribunal in its decision making, and it is to this consideration that all others must yield[11].
[10] Section 96 of the unamended Act.
[11]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at para 29; Chief Executive Officer, Department for Child Protection v Grindrod (No2) [2008] WASCA 28 at para 70.
Any hardship or prejudice suffered by the Applicant is irrelevant to this paramount principle[12]. Further, “…any benefit which might be thought to flow to children by having access to the Applicant’s knowledge, experience and flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued”[13].
EVIDENCE
Documentary evidence (Respondent’s submissions adopted)
[12]Chief Executive Officer, Department for Child Protection v Scott (No2) (2008) WASCA 171 at 23.
[13]Grindrod v Chief Executive Officer, Department for Community Development[2008] WASAT 289.
Criminal history
The particulars of the Applicant’s criminal offending are summarised under paragraph 2.2 of the Respondent’s Reasons document.
Over a period of 4 months the Applicant regularly bought and supplied ecstasy (MDMA[14]) tablets on an admitted commercial basis, as evidenced in his written submissions[15], and only ceased when apprehended by police. In addition, the Applicant’s involvement with illicit drugs had escalated in that period from purchasing 10-20 MDMA tablets a month[16], to purchasing 100 MDMA tablets from an ‘unknown male’ just prior to being caught by police.
[14] 3,4-Methylenedioxymethamphetamine.
[15] [CCYPCG 019] at lines 5-7.
[16] As stated in the Queensland Police Service QP9 summary of facts at [CCYPCG - 010] at last paragraphs.
The available material points to the Applicant being a user of illegal drugs[17], however, there is no independent evidence available that the Applicant has undergone counseling or treatment to rehabilitate from this substance abuse.
[17] Ibid, for example, at the last paragraph where the Applicant ‘…may have supplied other people in ‘Bullys’ Nightclub when he was drug affected’’.
The seriousness of the Applicant’s offending was evidenced in the Court sentencing him to a term of imprisonment, albeit wholly suspended.
The Applicant’s offending at the end of 2006 is recent, and he has only just ended the period of his suspended sentence, in July this year. Accordingly, only a short period of time has elapsed where the Applicant has not been subject to a court order which included monitoring by probation and parole officers, and the Respondent respectfully submits that insufficient time has passed where the Applicant’s behavior has been unregulated for the Tribunal to be satisfied that the Applicant won’t return to drug related offending.
Although MDMA was categorised as a Schedule 2 drug under the Drugs Misuse Regulation 1997 (Qld) at the time of the Applicant’s offending, the danger of that illicit drug is reflected in the fact it was re-categorised as a Schedule 1 drug on 1 June 2008.
Applicant’s submissions
The Applicant provided written submissions at the time of applying for a blue card with the Commission, and also for the purpose of the review proceedings before the Tribunal, which can be summarised as follows:
· he was born in Ireland in 1987 and moved to Australia in 1990 after his father was transferred to the Australian army;
· he commenced a boiler making apprenticeship, however, ceased that for a period, and worked as a salesman at Harvey Norman where he met and moved in with some of the employees;
· he became embroiled in the ‘nightclub and party scene’ and, due to his unreliability, lost his employment;
· due to a lack of money, he commenced buying and selling illegal drugs as an ‘…easy answer to my problems’;
· he has ‘…seen first hand the negative effects of drugs’;
· he disagrees with the statement in the Reasons document that he may have supplied drugs to children;
· after being caught by police he turned his life around with the help of his parents, and is currently employed by Casa Engineering;
· he has been in a relationship since shortly after his arrest, is a step-father to his partner’s daughter, and has a young son from the relationship;
· he requires a blue card to allow his partner set up a family day care service at home, and additionally to allow him to become involved in his children’s sporting activities.
Fraser de Groot – psychotherapist
Although Mr de Groot has provided a letter of support for the Applicant, dated 4 September 2010, there is no evidence of any independent personality or psychological testing having been undertaken, and the nature and circumstances under which the drug-testing was undertaken is not known. Accordingly, the Respondent respectfully submits that this reference cannot be considered an independent report by an expert witness, and cannot be taken past its face value in support of the Applicant being issued with a positive notice and blue card.
Diana Day – partner’s mother
The mother of the Applicant’s partner provides support for the Applicant, stating she is aware of the police charges against the Applicant, however, that he has improved his life and interacts positively with children in the family.
Katrina Flint – neighbour
Katrina Flint speaks highly of the Applicant’s morals and principles, having known him for approximately ten years. However, Ms Flint makes no reference to the Applicant’s criminal offending, and the extent of her knowledge, if any, is not known. Accordingly, the Respondent submits limited weight is able to be placed on this reference.
Wayne Johnston – neighbour
Wayne Johnston speaks positively of the Applicant and his interaction with children, stating he has known the Applicant since he was 5 years old, and that the Applicant has learnt from his ‘mistake’. However, describing the Applicant’s protracted buying and supplying of illegal drugs as a ‘mistake’ is a minimisation of the seriousness of the Applicant’s offending, and it is not known whether this is due to Mr Johnston having a limited knowledge of the Applicant’s offending. Accordingly, the Respondent submits limited weight is able to be placed on this reference.
Alison Augostis – friend
Alison Augostis also speaks positively of the Applicant and his interaction with children. However, Ms Augostis also refers to the Applicant’s offending as a ‘mistake’ and, similarly, limited weight should be placed on this reference.
Oral Evidence
Michael Anderson
He told the Tribunal that he had a healthy positive upbringing. His father had a disability namely a bad back and he performed the role as the man of the house helping his mother and father. He had played a lot of sport as a child and had a wide circle of friends. He had no drug issues growing up and had not experimented with illicit substances. He obtained a boilermaker's apprenticeship after leaving school. He left that apprenticeship and got the job with Harvey Norman. Whilst at Harvey Norman the relationship he had with his school sweetheart broke down. His parents lived out of town and his workmates offered him a spot in their rental accommodation. He moved into their accommodation and over the next couple of months became part of their partying lifestyle which meant going out three or four nights a week to nightclubs and the occasional use of ecstasy.
This type of lifestyle involved late nights and the heavy intake of alcohol. He was late to work on the number of occasions and did not attend at all on other occasions. His evidence was that if he were still under the influence in the morning he would not go to work. This ultimately led to his dismissal from Harvey Norman.
He had been paying rent for his accommodation however following his dismissal and the rundown of his savings he was no longer able to pay the rent. His flatmates suggested to him that he could continue to live with them without paying rent if he helped them distribute drugs. His role was to supply the drugs to known associates and at nightclubs. When the police raided the accommodation he was living in he was asleep in his room. The police search found 90 tablets of ecstasy in his room and he was charged.
He talked to his parents after he had been charged and they set him up in a unit so that he could move straight away. He severed his connection with his flatmates and obtained employment as a boilermaker. He ceased taking drugs and stopped taking alcohol. It was around this time that he met up with his current partner. He made full disclosures to her of the trouble that he was in. They moved to Cairns, have a new baby, and plan to get married. She has a large extended family of which he has become a part. He has full-time employment and a positive relationship with his partner and stepdaughter. He did not experiment with drugs as a young person. He recognises the drugs impact directly and indirectly on children. He gave the Tribunal several examples of the harm that illicit substances impact on children.
He denied ever knowingly selling drugs to children. He provided drugs to adults in nightclubs and presumed that only adults would be using the ecstasy he supplied. He accepts that his actions were wrong and that he has to take responsibility for his own life and not blame others. He did not know that his co-workers were heavily into ecstasy and the party lifestyle before he moved in with them. It was only after he had moved in to the rented accommodation that he became aware of the drug issues. They were older and he adopted the partying lifestyle which as a naive youngster he found appealing.
In relation to his breach of bail this came about because he was late having worked longer that day. He did report in and was issued with a formal breach that no penalty was imposed. He approached Fraser de Groot for advice and support. Fraser had been his father's therapist for a number of years. He accepts that he was young and stupid and has learnt from his mistakes. When he saw Fraser he was told that he had to undergo a drug screen is Fraser wanted to be sure that he was being completely honest with the clinician about ceasing all drugs. This random testing showed he was clear of all illicit substances. He understands the impact of his behaviour on his family especially his mother.
He has complied with his parole which finished in July. He accepts that what he did was a risk of harm to children.
Belinda Faye
She met Michael at a friend's party. They got to know each other well and she moved to Townsville with her daughter and they became partners. She was aware of his charges and how they occurred. She read the reports and was well acquainted with the circumstances around his offences. She had a zero tolerance for drugs. She also had a ten year old daughter who needed to be protected. He understands that there will be no drugs in their relationship and no party lifestyle.
He made an effort straight after he was charged to move to different accommodation; obtain a job as a boilermaker; and ceased partying and drinking alcohol excessively. He ceased contact with his former associates. They subsequently moved to Cairns. He has been an excellent partner and positive influence for her daughter. She is much more settled under his influence. He has been very supportive through her pregnancy. He has a caring character; is outgoing and good to be with. He is a happy person who handles life stresses and doesn't get angry. She is aware of how important to him, she and the children are. He has a good relationship with his parents. She has six siblings and has a good relationship with her mother rend her brothers and cousins. He has fitted well into their extended family which includes 13 grandchildren aged from two to 18. He has formed friendships with her family; has workmates; and formed friendships with a couple who are part of her antenatal group.
Her view is that he didn't have an addiction to drugs but that he made some wrong and stupid decisions. He accepts responsibility for his actions but she believes that he was vulnerable to being influenced by his workmates who were older men. If faced with a similar situation she has no doubts that the importance of his relationship with her and their children would prevent a repeat of his actions. He knows that a repeat of this behaviour be completely unacceptable.
Fraser de Groot – psychotherapist
He has known Michael's father for 15 years. He has been treating him for chronic pain and consequent depression. Michael didn't have an easy upbringing. His experience is that those who suffer from chronic pain are often angry and short tempered. Michael has overcome adversity and has become a productive person. He is a good worker well respected in his trade and this gives him great personal worth. He now has a maturity beyond his years. He referred to Michael's offending as “growing pains”. His view was that Michael didn't have the family upbringing that would have protected him from drifting into partying and drug taking. He strongly supports Michael because he doesn't see him as an unacceptable risk and would not have written the report or supported him at the hearing if he had any concerns. Under cross-examination he said that he would have no hesitation in supporting Michael for a blue card and would be confident with Michael having contact with his granddaughter.
His view was that Michael was naive and has grown up in response to what has happened to him. Many young people are protected by the affluence of their parents or are inculturerated by family about drugs and the risks that drug pose. He didn't have those protections and this was part of his naïveté. He has done a lot of learning which is part of his adaptability. Today is a rude awakening for him. When you have a childish outlook on life you have to choose whether to grow up or not. He has learnt to deal with adversity. He demonstrates no antisocial traits. He has no mental health problems or personality disorders. He has chosen his path. He has a good relationship. He has demonstrated his adaptability.
It was hard to live with a father with chronic pain because it was hard for his father to show a depth of love. He shows none of this with his partner or their children. His father has improved and he now has a good relationship with both of his parents. He has learnt to deal with this setback and now has as a good self-awareness. He has a set of values which will protect him from any relapse.
Alison Augostis
She had known Michael since the age of 10 as she had been working for his mother since the time. He spent a lot of time with her and his mother and she described him as “mummy’s boy”. He would go with her shopping and doing other household activities rather than socialising with his friends. Her own children call him “Uncle Mick”. She was fully aware of what had occurred. He had met with her on a number of occasions whilst he was going through the criminal system. He distanced himself from his co-offenders so that they could no longer have an influence on him. They were the wrong crowd for him as a naive young man. He was really regretful about what he had done. She would have no hesitation in him being involved with her children.
What has changed in Michael? He is now more independent and prepared to do his own thing. He has taken on a personal relationship that included acceptance of a stepdaughter. He has distanced himself from the past by severing his contacts with his co-offenders. He has moved out of the area to Cairns and found employment. He has grown up and learnt from his mistakes.
Respondent’s Submissions
Risk to children and young people
The Applicant asserted that he has not supplied illegal drugs to children, however, in addition to using illicit drugs himself at a young age, and supplying drugs to his friends, he admitted to police that he may have supplied drugs to people at a nightclub, indicating a lack of insight into his role in creating a market for illicit drugs in the community, which has a far reaching impact on the wider community, including young people. In the published decision of TAA, Re [2006] QCST 11[18], the (former) Children Services Tribunal stated at paragraph 97 of its Reasons:
“The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.”
[18] (26 June 2006).
The Applicant, through his criminal offending and substance abuse choices, has exercised poor judgement which impacts upon his current capacity to exercise cogent decision making, an important consideration for someone engaged in regulated employment.
Summary of risk factors
There are a number of risk factors apparent in the Applicant’s offending which raise concerns about his eligibility to be issued with a positive notice and blue card, including:
·the Applicant has recent convictions for drug-related offending, which involved more than a ‘one-off’ incident;
·the drugs being sold and supplied by the Applicant are serious such that they are now categorised as Schedule 1 drugs under the Drugs Misuse Regulations 1997;
·the Applicant only ceased his offending when apprehended by police;
·the gravity of the Applicant’s offending is reflected in the term of imprisonment imposed by the court, albeit that the sentence was wholly suspended;
·there is evidence of the Applicant using illicit drugs, however, there is no independent evidence of any counselling or treatment that he has undertaken for rehabilitation from that substance abuse.
The Respondent relies upon the totality of the material before the Tribunal, including the Reasons document accompanying the negative notice issued to the Applicant, and any further submissions subsequent in these proceedings, and respectfully submits that the Tribunal can be satisfied to the requisite standard that the Applicant’s case is an exceptional one such that it would not be in the best interests of children for him to be issued with a positive notice and blue card, and that the original decision by the Respondent to issue a negative notice to the Applicant ought to be confirmed.
Discussion of evidence
The crux of the Respondent's concerns is the serious nature of the charges and subsequent conviction. The Applicant made a choice to sell amphetamines. The other co-offenders received terms of imprisonment for their conduct. The Respondent accepted that the Applicant was not the driver of the criminal enterprise.
The Applicant has been on parole until July 2010 so that he has not been able to demonstrate a significant period without supervision to support his submission that he is not a risk of relapsing.
The Commissioner is right to have serious concerns about the harm that illicit substances have on our society. They impact on children directly and indirectly.
The Tribunal is of the view that there are a constellation of positive protective factors in the Applicant’s favour. These include:
(1)the Applicant has developed insight into the effect of his offending and was able to give examples to the Tribunal at the hearing;
(2)the Applicant has expressed remorse for his actions. Evidence for this comes from a number of the witnesses and confirmed that it was expressed in the period following his arrest;
(3)he has no history of use of drugs before or after these events;
(4)he has sought help from his family and taken steps to remove himself from the situation in which he found himself;
(5)he has grown up as a consequence of these events;
(6)he has become involved in a personal relationship that provides support and guidance;
(7)he experienced a positive upbringing and has an ongoing positive relationship with his parents;
(8)the relatively narrow timeframe of the offending behaviour;
(9)his increased maturity as a consequence of the events that have occurred;
(10)the successful negotiation of his parole;
(11)the absence of criminal offending prior to these events;
(12)a partner who has not used illicit substances and who has a zero tolerance to illicit substances;
(13)the positive steps that he has taken to rehabilitate himself;
(14)the character evidence from a number of witnesses who had known the Applicant before and after these events;
(15)the Applicant has developed good coping strategies and has surrounded himself with supportive relationships; and
(16)his self worth has improved as a consequence of the standing he has achieved in his trade.
The decision-making process of the Commission, and now the Tribunal is guided by the High Court decision of M v M (1988) 82 ALR 577. The Tribunal would extrapolate the following from that decision:
i.The purpose of employment screening is not to re-try the Applicant’s case. Neither the Commission nor the Tribunal is a court exercising criminal jurisdiction;
ii.It is not the role of the Commission, or the Tribunal to arrive at a definitive conclusion on the issue of guilt or innocence. The Applicant’s guilt or innocence is a secondary consideration to the determination of what is in the best interests of children and young people;
iii.The issue here is whether this is an exceptional case in which it would not be in the best interests of children and young people to allow unfettered access to them by a person against whom allegations of misconduct have been made.
The decision in M v M has recently been reiterated in the decision of W and W (2005) FLR 92-235.
The Tribunal is mindful that the decisions in M v M and W and W were based on a consideration of a father’s contact with his child where the father was alleged to have sexually abused that child. The Tribunal’s decision under the Act in this case on the other hand involves a consideration of a person’s contact with any Queensland children in circumstances where it is alleged he has supplied dangerous drugs. Both behaviours present risks of harm to children.
[57] It is instructive to refer to some passages from the judgment of the Full Court of the Family Court in W and W. At Paragraph 96 it is (inter alia) recorded:
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, without due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child,” (emphasis added).
In the following paragraphs of the judgment the Full Court in W and W went on to consider the “wider issue” of how to assess whether there is a risk of abuse occurring if contact were granted and the magnitude of that risk.
The authoritative test propounded by the High Court in M v. M was set out as follows at p. 77, 081:
“That a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.”
In paragraph 98 of its decision in W and W the Full Court proceeded:
“The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
“It should be noted that the M v M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’.”
In paragraph 105 of the judgment in W and W the Full Court quoted with approval certain remarks of Fogarty J in N and S & anor (1996) FLC 92-655 at p. 82,
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be asked such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
“This is not a catalogue of correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
In paragraph 106 of W and W the Full Court described that in N and S Fogarty J went on to discuss the standard of proof necessary for a finding of unacceptable risk, stating that
“His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may be useful in some circumstances. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.” (emphasis added)
The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.
The Tribunal is satisfied the purposes of its decision-making that the circumstances leading to the offence were somewhat unusual or extraordinary.
The way in which the Applicant has handled the stresses of his life since his conviction has seen as entirely appropriate. This passage of time since the conviction is a relatively short period. The evidence is that the Applicant served his parole without incident. The Applicant has worked hard most of his young life this is clearly a positive protective factor. The Applicant has found a new partner and they have started new family. The evidence before the tribunal is that this is a supportive and positive relationship. This is another protective factor in the Applicant’s favour.
There are risks were someone has committed drug offences. The role the Tribunal is to weight up those risks with the protective factors in evidence before the Tribunal.
In the decision in Commissioner for Children and Young People v. V-BC200206295 in which Young J. makes reference to a decision of Peterson J in which case Petersen J stated:
“Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact…. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present.”
Young CJ then quotes from the judgment of Haylen J in Prince Jefri Bolkiah v KPMG [1999] 2AC 222, 236-237. At [100] Haylen J said:” I am not able to accept the submission for the Respondent Commission that, so long as there is any risk however minimal, an Applicant may reoffend and therefore pose a risk to the safety of children, then an order and declaration of s9(4) cannot be made.
His Honour said this because he was of the view that Parliament could not have intended to set up a statutory right to make an application if the only people who could make the application were, because of their previous convictions for a serious sexual offence, denied any ability to obtain an order because they were by definition some risk, see [101]. His Honour examined the Second Reading Speech in the Lower House that the purpose of the screening related policies and procedures were to reduce unacceptable risks of people working with children. Furthermore, in the Legislative Council the Attorney-General had said that the object of the series of Bills, including the Bill for the present Act and the Commission for Children and Young People Act was ‘to achieve a balance between protecting employees and protecting children from abuse. It is important that we protect reasonable civil liberties’. His Honour also referred to the fact that the Wood Royal Commission from which the legislation had it genesis referred to an ‘unacceptable risk certificate’.
The New South Wales legislation is different from the Queensland legislation however the discussion of the concepts of risk is useful for the context of the decisions that the Tribunal must make. This is similar to the decision in Williamson v Director of Public Prosecutions [1999] QCA 356 that there must be some basis not a mere theoretical or possible risk.
The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
The onus is on the Tribunal to be satisfied that he is an unacceptable risk to children. The onus is on the Brigginshaw standard (on the balance of probabilities) to show that the Applicant is an unacceptable risk to children.
What is the meaning of risk? Haylen J said:
“It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’. The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.
I think the answer to this question is Yes and No. There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sex offence and its circumstances; the second is the current danger, if any, posed by the Applicant to children. Subs(5) deals mainly with the first focus, that is, that the Tribunal must evaluate the seriousness of the offences taking into account the age of the Applicant when the offences were committed, the age of the ‘victim’ at the time and the difference in ages. The second involves the assessment of the Applicant’s character now which includes the seriousness of the prohibited person’s total criminal record, a matter mentioned by (5) (e) and any other matter which the Tribunal considers relevant. Subs (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the Applicant’s current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an Applicant unless there was a good reason not to so exercise it.”
The Commissioner was right to refuse Mr Anderson at first instance on the basis of the information that was before her. The Tribunal has had the advantage of much more evidence then was before the Commissioner and is of the view that Mr Anderson's circumstances are sufficiently unusual that with the protective factors in evidence that the Tribunal is not satisfied that he is an unacceptable risk.
The Tribunal incoming to this decision placed emphasis on the following factors:
(1)his age and level of maturity at time of offending;
(2)the absence of any offending behaviour prior to this turn of events i.e. he had a positive upbringing;
(3)the significant amount of evidence that the Applicant had made positive changes to his life to address the issues around his offending;
(4)the presence of the significant number of protective factors outlined above;
(5)the fact that the Applicant was not a driver of the criminal enterprise;
(6)the evidence that the Applicant was not a drug addict which is supported by the absence of drug taking since the charges but significant period of time in the context of drug addiction; and
(7)the evidence that came from a counsellor who had known him before and after his offending behaviour and who was in a very good position to address the issue of risk.
The issue of risk comes back to his conviction as there is nothing outside that which raises any specific concerns.
The Tribunal takes the view that Michael’s conviction must be taken into the context of:
(i)his criminal history as a whole;
(ii)the special features or factors in Michael’s conviction; and
(iii)the balance between risk and protective factors.
The Tribunal is satisfied undertaking this weighting exercise that it has not been established on the balance of probabilities that Michael is an unacceptable risk to children. The Tribunal was impressed by and placed weight on the evidence given by the Applicant’s counsellor Mr Fraser de Groot. The offence is significant but in the context of the other factors isn’t sufficient to establish on balance an unacceptable risk to children. Because of the unusual nature of the circumstances of this case: a young applicant with serious drug offences the Tribunal has set out the parameters upon which this decision has been based which might be of assistance to the Commissioner and prospective applicants in future cases.
Section 102 A (2)
As to section 102 A (2) matters:
(a)(i) the offences involved: (a) a conviction of supplying dangerous drugs and possessing dangerous drugs and the supply of dangerous drugs under the second schedule; for which the Applicant was convicted and sentenced to one years imprisonment wholly suspended two years; (b) a conviction for receiving or being in possession of property obtained from trafficking or supplying; and possessing dangerous drugs under the second schedule; for which the Applicant was convicted wholly suspended for one year.
(ii)the offence is not a “serious offence” but is viewed as offences of significant concern to the community;
(iii) the offence was committed over 4 month period in 2006;
(iv) the offence involved the supply of amphetamines on a commercial basis. The Applicant supplied drugs at nightclubs and to known associates;
(v) the penalty of 2 years and1 years imprisonment was imposed, a relatively severe sentence. The Judge acknowledged the special circumstances in the case in setting suspending both sentences and placing the Applicant on parole for two years.
(b) See the discussion above on risk and protective factors.
The only feature which can be suggested as satisfying the Tribunal that this is an exceptional case is the Applicant's conviction for serious drug offences and the severe penalty he received as a result. The Tribunal has explored this feature and has made findings in relation to it.
The Tribunal is not satisfied that this is an exceptional case in which it would be in the best interests of children for a negative notice to be issued. The Tribunal is not satisfied that the Applicant is an unacceptable risk of harm to children.
The Tribunal acknowledges the use of the Respondent’s submissions for setting out: the relevant Application history; relevant legislation; and the decision making process.
The Tribunal accordingly makes the following Orders:
1.That the decision of the Commissioner for Children and Young People and Child Guardian made on 14 April 2010 to issue a negative notice to the Applicant MICHAEL JAMES ANDERSON is SET ASIDE;
2.That a positive notice be issued forthwith to the Applicant MICHAEL JAMES ANDERSON
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