DJM v Director-General, Department of Justice and Attorney-General

[2018] QCAT 222

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DJM v Director-General, Department of Justice and Attorney-General [2018] QCAT 222

PARTIES:

DJM  
(applicant)

v

DIRECTOR- GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML 006-18

MATTER TYPE:

Children’s matters

DELIVERED ON:

14 July 2018

HEARING DATE:

17 May 2018

HEARD AT:

Brisbane  

DECISION OF:

Member Clifford

ORDERS:

1.   That the decision of the Director-General, Department of Justice and Attorney-General, dated 7 December 2017 that the applicant’s case is an exceptional case, is confirmed.

2.   That, other than to parties to this proceeding, publication of any information or material that may identify the applicant, any complainant or any relevant child is prohibited.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for review of decision – where respondent declined to cancel a negative notice for a blue card – where non-serious offence – whether an exceptional case.

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of decision – where respondent declined to cancel a negative notice – where blue card declined – where non-serious offence - whether an exceptional case

Queensland Civil and Administrative Tribunal Act 2009,
Working with Children (Risk Management and Screening) Act 2000.

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
DJM v Commissioner for Children and Young People and Child Guardian [2012] QCAT

APPEARANCES & REPRESENTATION:

Applicant:

Mr L Young, LY Legal

Respondent:

Mr I. McCowie, Legal Officer

REASONS FOR DECISION

1. The applicant, DJM, is a 50 year-old man who in 2016 applied to the respondent seeking the cancelation of a negative Notice that had been issued to him on 31 May 2011.[1] The applicant wishes to obtain a ‘Blue Card’ under the Working with Children (Risk Management and Screening) Act 2000 so that he can undertake full volunteer services at his local lifesaving club. The applicant has lived in a NSW border town and has run a building business from there for many years. The applicant has two sons from different partners, one a young adult and the other aged 11 years.

   [1]The applicant sought review of the 2011 decision at the Queensland Civil and Administrative Tribunal but the Tribunal confirmed the decision of the then decision-maker, see DJM v Commission for Children and Young People and Child Guardian [2012] QCAT.  The applicant had previously been issued a negative notice on 9 December 2005.

2. The respondent declined to cancel the negative Notice on 7 December 2017 on the basis it was satisfied the applicant’s case was an exceptional case in that it would not be in the best interest of children to issue a positive notice.  It is that decision that is subject of this review.

   Legal framework

3. The Working with Children (Risk Management and Screening) Act (Working with Children Act) prescribes reviewable decisions, outlines that may apply for review and what the Tribunal may or may not do in relation to the review.[2] The Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that the Tribunal may either confirm the decision or set it aside. [3]

   [2]Working with Children (Risk Management and Screening) Act 2000, ss 352 and 354.

   [3]Queensland Civil and Administrative Act 2009, sections 17 - 24.

4. When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. [4]  The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. If a negative notice is issued, the applicant cannot apply to have the notice cancelled for a period of two years.

   [4]Op.cit, Working with Children Act, sections 6 and 360.

5. The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor,[5] provided guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case.  The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations. [6]  

   [5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

   [6]Op.cit, Working with Children Act section 226 (2).

   Material and evidence

6. The Applicant provided the Tribunal with his application, Statement dated 15 April 2018 with attachments, along with witness statements of Harry Theodore, clinical psychologist dated 16 April 2015, Kevin Bilsborough dated 15 April 2018 and Ian Ahrens dated 16 April 2018. All witnesses appeared before the Tribunal in person or by telephone. Mr Young was given the opportunity to exam and re-examine the witnesses and to provide a written response in relation to late material obtained under a Notice to Produce. Final written submissions were also provided. 

7. The respondent provided Reasons for Decision with all relevant documents attached (BCS 1-115) and (BCS 117-148) 2), including the decision of the previous Tribunal in the earlier application for review.[7] The respondent representative was given the opportunity to cross-examine the applicant and applicant’s witnesses, and to file late information received under a Notice to Produce.  Responses to that material and final written submissions were also provided.

   Issue – is the applicant’s case an exceptional case whereby the issuing of a positive notice would not be in the best interest of children?

   [7]Op.cit.  DJM v Commission for Children and Young People and Child Guardian

8. It is undisputed that the applicant has neither a disqualifying or a serious offence as prescribed under the Working with Children Act. Furthermore, the Tribunal received no other information or reports in relation to the applicant as described under section 226(2) (b) (c) or (d) of that law. In the applicant’s case section 221 of the law is relevant to his circumstances. It prescribes that a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to the applicant.

9. The applicants criminal history outlines various offences between 5 July 1985 – 30 May 2016, including two mid-1980s alcohol related offences, an assault in 1992 and an assault, assault occasioning bodily harm whilst armed, stalking, numerous breaches of a domestic violence order between June 1997 – August 1999.  Various penalties were imposed, including imprisonment for 12 months, suspended for 3 years in relation to the assault occasioning bodily harm whilst armed matter. The extent of the stalking, breach DVO and Assault OBH are described in transcript of proceedings dated 25 March 2009, (BCS73 -76).

10. There are no further offences until a common assault charge in May 2016 for which the applicant pleaded guilty and was placed on a 12-month good behaviour bond.

11. The 1997 assault conviction and the 2016 common assault matter both relate to the applicant’s first and second ex-partner, both incidents described in police briefs as taking place in the presence of their sons, at the time aged 18 months and 9 years respectively. The stalking and breaches of a DVO also related to the applicant’s first ex-partner.

12. The 1992 assault matter was against a male taxi driver and alcohol appeared to be a feature. The assault occasioning bodily harm whilst armed in 1999 was against the applicant’s first ex-partner’s new male partner.

13. Whilst there is no criminal history between 1999 and early May 2016, it is clear from the previous Tribunal case that the applicant’s and his then partner’s relationship was under considerable strain between 2009, when she moved interstate with their son for 9 months, and 2010-2012 when they sought counselling. It is apparent from the counsellor’s notes, and as noted in the previous Tribunal decision, that the applicant’s then partner expressed fear because of physical abuse, unpredictable behaviour and excess alcohol consumption. (BCS 9-10)

14. Whilst the state of that relationship between 2012 and 2016 is unclear, it is clear following the 30 May 2016 common assault conviction that the relationship was very fragile as the applicant’s then partner obtained an DVO and left the relationship shortly thereafter. Furthermore, under the late Notice to Produce material, a Notice of Risk document filed in the Federal Circuit Court of Australia on 12 August 2018 in relation to the family law proceedings noted ‘the mother has been subjected to verbal denigration, stalking, threats to her personal safety and physical assaults by the father throughout their relationship. The child has been hit by the father, the child and mother are at risk of future family violence by the father’.

15. The applicant’s second ex-partner and their son now live interstate and the applicant has day contact with his son when he flies to Victoria on a monthly basis. The applicant testified that the arrangement is subject of a family law Court consent order that was finalised in January 2018, and that it will change at the end of the year whereby his son will visit him on a monthly basis, and for half of the school holidays.

16. At hearing the applicant testified that his convictions are in the past when he engaged in unruly behaviour. The applicant stated he understands the impact of his behaviour on others and his family. He testified he was regretful of this unsavoury behaviour and it presented as a poor standard as a parent. The applicant states he is seeking help from a clinical psychologist on how to deal with anger and general behaviour. The applicant testified he has learned moderation, that he drinks much less than when he was younger and that he now only drinks 3 - 4 beers some afternoons and that sometimes he has nothing. The applicant provided 12 pathology results for Carbohydrate Deficient Transferrin (CDT) levels, which were taken randomly between October 2016-2017 and which all indicate that the levels were not high enough to support/indicate probable alcohol excess. The applicant testified that he undertook these tests at the request of the family law Court as his ex-partner had alleged he drank a carton of beer a day. The applicant denies he ever drank a carton of beer. The applicant testified that he and his second ex-partner entered into Consent Orders in January 2108.

17. The applicant also testified that he received very bad legal advice in relation to the 2016 charge and that he pleaded guilty because he was concerned his son would have to go in the stand. The applicant testified that he did not hit the complainant.

18. The applicant testified that he was confident this behaviour would not happen again and he opined that there should be no concerns regarding the safety of children.

19. Harry Theodore, clinical psychologist testified that he started seeing the applicant after the 2016 common assault charge. Mr Theodore testified that he saw the applicant on 19 occasions over a 16-month period in relation to his marital breakdown and to assist him to deal with issues regarding communications with others, addressing strong emotions about separation from the strong positive feelings he has towards his son. Mr Theodore testified that the applicant undertook an anger management program whereby he learned the triggers of his anger and how to modify his behaviour in a positive way. Mr Theodore testified that he thought the applicant had done quite well and that he understands the historical negative impact that alcohol consumption has had on his behaviour, and that he has now reduced his alcohol intake. Mr Theodore advised that whilst the applicant has 3 further appointments available to him under the current mental health plan, the previous appointments and the treatment came to a natural conclusion. Mr Theodore testified that he had no concerns about the applicant being issued with a blue card.

20. Ian Ahrens has been the applicant’s accountant for 15 years. Mr Ahrens is also active in the same surf-life saving club as the applicant. Mr Ahrens testified that he was aware of the applicant’s criminal history and finds the nature of the charges out of character for the applicant whom he opines is highly regarded in the community and who he has dealt with in a businesslike and respectful manner. Mr Ahrens testified that he had noticed in a social context that the applicant had moderated his alcohol intake. He described how 10 years ago contact with the applicant would have been to find him at the club slurring his words and clearly intoxicated, whilst 6 weeks previously they had been on a social trip away for one week and the applicant was enjoyable company and responsible. Mr Ahrens testified that he had not observed the applicant upset and saw him caring and fatherly towards his son. Mr Ahrens testified that he had no concerns with the applicant receiving a blue card.

21. Kevin Bilsborough testified that he has known the applicant for around 26 years and is a family friend. Mr Bilsborough testified that he has never seen the applicant act in a threatening or intimidating manner towards or in the presence of children. Mr Bilsborough testified that he, and his wife, are part of the applicant’s support network when the applicant has visits with his son. Mr Bilsborough testified that any issues the applicant has had with his son are dealt with appropriately with no sign of the applicant losing control. Mr Bilsborough described his own 11-year old daughter as adoring of the applicant. Mr Bilsborough testified that he understood the applicant had sought the help of a psychologist and he testified that he had noted the applicant had reduced his alcohol intake. Mr Bilsborough opined the applicant is not a threat or danger towards young persons but stated he is respectful, generous and helps people out. Mr Bilsborough testified that the applicant is deeply ashamed of his past actions, knows it is unacceptable and inappropriate and that he has to deal with it for the rest of his life.

22. The applicant submitted in relation to the FACS material obtained under Notice, that it in essence contains no new material excepts so far as an untested allegation of drug misuse is raised, and which the applicant denies. The applicant submits that the Tribunal should rely on the pathology reports as to the applicant’s alcohol intake and that the applicant now has regular contact and visitation rights with his son in Melbourne. The applicant finally submits that he has made changes to his life, recognized the detrimental impact that alcohol has had on his behaviour and now taken steps to moderate alcohol intake and has sought and continues to seek psychological help so that he can continue to better develop strategies to manage conflict. The applicant submits his is not an exceptional case and that a positive notice be issued and accordingly blue card.

23. The respondent acknowledges that the applicant has sought assistance from Mr Theodore, who testified the applicant has learned to manage his anger effectively, has reduced his alcohol consumption and had supportive referees.  However, the respondent submits that the risk factors, including a history of violence against two former partners in the presence of children, history of breaches of DVO, unprovoked assault and significant violence against the applicant’s first ex-partner’s new partner, and the recency of the 2016 assault, outweigh the protective factors of seeking help and having supportive friends. The respondent submits the applicant’s offending history is adverse to an assessment of his ability to safeguard the best interests of children and young people in his care. The respondent submits the risk factors renders the case an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card.

24. Since the Tribunal’s decision in 2012, a decision and reasoning with which this Tribunal concurs, the applicant has had a serious relationship breakdown following a common assault charge in May 2016, perpetrated against his former partner in the presence of his son. A charge in which he pleaded guilty for reasons, as testified, as concern that his son would be put on the stand and that he received bad legal advice.  A charge of assault for which he now denies.

25. The applicant was placed on a 12-month good behaviour bond, until May 2017. During that period, and beyond, the applicant has been engaged in an almost 2-year family law dispute whereby he undertook over a 12-month period random CDT testing and sought psychological assistance, and reportedly reduced his alcohol intake and learned to manage his emotions/anger better.  The applicant and his second ex-partner signed consent orders in January 2018 in relation to their son.

26. At hearing the applicant presented as a quiet person, responding in only a limited manner unless prompted for further information. He was a poor historian and at times quite forgetful stating, contrary to the police reports, that his son wasn’t present during an incident of assault against his first ex-partner in June 1996, and denying that he had kicked her while she was on the ground. The applicant appeared not to be able to find words to describe what impact exposure to violence would have on children, other than it ‘wouldn’t be good’. The applicant denied that he had ever drank a carton of beer a day, and appeared keen to contradict this specific allegation of his second ex-partner, notwithstanding admission of previous alcohol misuse and evidence from his witnesses that he has reduced his alcohol intake more recently, and as was evident by the CDT pathology results.

27. The Tribunal remains concerned about the applicant’s criminal history of violence, not only family violence against two former partners, but violence against a taxi driver and a partner of a former partner. Whilst most of the criminal history is over 20 years ago, the reported violence against his second ex-partner is recorded as occurring throughout the relationship until the relationship ended following the assault in May 2016. Whilst the Tribunal notes the applicant’s submission that these allegations are untested, the Tribunal concurs with the former Tribunal’s conclusion that the applicant has engaged in a pattern of threatening and violent behaviour in the context of a domestic relationship. The applicant’s second ex-partner has consistently reported to a counsellor, police and in other proceedings, of on-going violence from the applicant often in the context of excess alcohol consumption. Sadly, it appears that behaviour has continued, not withstanding the applicant’s then assistance from a counsellor, up until 2016.

1. Whilst the Tribunal acknowledges Mr Theodore’s testimony that the applicant has undertaken an anger management plan successfully, and that he has reduced his alcohol intake, the applicant has done so in the shadow of family law proceedings and whilst he has been subject of a good behaviour bond. The good behaviour bond would have been finalised in May 2017, his treatment with Mr Theodore in late 2017 and the family law proceedings only concluding, by consent orders, in January 2018. This is all very recent activity in the context of a long-standing history of poor anger management, alcohol misuse and reported family violence.

2. Family violence, even when it is not specifically directed to a child, has a long-lasting and negative impact on children’s development and diminishes their sense of trust and security from those who should be their greatest protectors.  The Tribunal encourages the applicant to continue to seek assistance from professionals as necessary and to maintain a reduction in his alcohol intake. However, given the long-standing history of violent offences coupled with the recency of the last conviction of violence against his then partner and in the presence of his then 9-year old son, the Tribunal is satisfied that his is an exceptional case and that it would not be in the best interest of children for him to be issued a positive notice and his previous negative notice cancelled.

3. Finally, as much information raised in this matter was obtained under a Notice to Produce and involved child safety and domestic violence matters and laws, the Tribunal prohibits, other than to parties to the proceedings, the publication of any information or material that could identify the applicant, any complainant or relevant child.[8]

   [8]QCAT Act, section 66.