Ford v Chief Executive, Public Safety Business Agency
[2014] QCAT 678
•19 November 2014
| CITATION: | Ford v Chief Executive, Public Safety Business Agency [2014] QCAT 678 |
| PARTIES: | Aaron Elliot Ford (Applicant) |
| v | |
| Chief Executive, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML112-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 24 October 2014 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member Clifford |
| DELIVERED ON: | 19 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Chief Executive’s decision of 28 April 2014, to issue a negative notice to Aaron Elliott Ford, is confirmed. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD REVIEW – where negative notice issued – where exceptional circumstances established – where exceptional case made out. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17 – 24 Chief Executive for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Ford, represented by Matthew Tutt of Fowlers Lawyers |
| RESPONDENT: | Chief Executive (formerly Commissioner for Children and Young People and Child Guardian) represented by Louisa Keown, Legal Officer (in-house) |
REASONS FOR DECISION
Background
Aaron Ford is a 43 year-old man who was born, and mostly lived, in Western Australia. He is the eldest of three sons of Suzanne and Boyd Ford.
Mr Ford completed year 12 schooling and undertook an electrical engineering apprenticeship. He completed the 4-year course and has been employed as an electrical engineer in the mining industry for 22 years.
Mr Ford moved to Queensland in late 2012. The Queensland Gas Corporation, in the Surat Basin, employs Mr Ford as a Quality Assurance Surveyor. Mr Ford works on a 3 week on, 1 week off basis, when he returns to live on the Sunshine Coast in a rented property.
Mr Ford has two young children, a daughter aged 8 years, and a son aged 6 years, from a relationship formed in 2005/6. Mr Ford and this partner separated in 2013.
Mr Ford has previously been married, but in 2005 the marriage broke down after six years.
Mr Ford also has a nearly 20 year-old son, from an earlier relationship, whom he financially supports but with whom he has limited contact.
In December 2013 Mr Ford applied for a ‘Blue Card’ so that he could become a paid Associate Member of his local surf club, so that his young children could be enrolled in the Nippers programme as junior members.
On 28 April 2014, the Chief Executive, (the then Commissioner for Children and Young People and Child Guardian)[1] issued Mr Ford with a ‘negative notice’.
[1]The Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) was repealed and replaced by the Working with Children (Risk Management and Screening Act) 2000 (Qld) on 1 July 2014.
On 10 June 2014 Mr Ford sought a review of the decision, by the Chief Executive to issue a negative notice, with the Tribunal.
The Chief Executive filed a Statement of Reasons with attachments. Mr Ford provided a response in June 2014, with references from his mother and a friend in Western Australia. In July 2014 Mr Ford provided an outline of his ‘personal history’, and in October 2014 he provided a Psychological Report from Janelle Bardsley. Following completion of the hearing, Mr Ford and the Chief Executive filed written submissions.
Legal framework
The purpose of a review is for the Tribunal, by way of a fresh hearing on the merits of the case, to produce the correct and preferable decision. In doing so, the Tribunal may either confirm the decision of the Chief Executive, or set it aside, and substitute it with its own decision or return it to the decision-maker with appropriate directions.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17 – 24.
On review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. Under this law the welfare and best interests of a child are paramount.[3]
[3]Working with Children (Risk Assessment and Screening) Act 2000 (Qld) s 155.
The Working with Children Act also provides that if an applicant for a Blue Card has no convictions, or the Chief executive becomes aware of a conviction, other than a serious offence, the Chief Executive must issue a positive notice. However, if the Chief Executive is 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, a negative notice must be issued.[4]
[4]Ibid s 221(2).
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 some 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 matters for consideration outlined in the law.
[5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Those considerations are outlined in section 226(2) of the Working with Children Act and include, relevant to this case, whether an offence is a charge or conviction; whether it is a serious offence; when the offence occurred; the nature of the offence and its relevance to employment or carrying on a business that may involve children, and the penalty incurred. Furthermore the decision-maker may consider anything else relating to the commission of the offence/s the decision maker reasonably considers relevant to assessment of the person.[6] This list is not exhaustive or prescriptive.[7]
[6]Op.cit, Working with Children Act ss 226(2)(a) and (e). Subsections 226(2)(b)(c) and (d) were not considered relevant in this case.
[7]Op.cit, Maher case.
Is Mr Ford’s an exceptional case - evidence
Mr Ford has a number of criminal offences. They have occurred, for the purpose of these reasons, in three periods of time.
Firstly, 1989 – 1995. Six offences all concerning excess alcohol and driving, for which fines and licence disqualifications ensued. Mr Ford was aged 18 – 24 years.
Secondly, 2006 – 2008. Two offences. The 2006 offence was for ‘Possess a prohibited drug (methylamphetamine)’. Mr Ford was fined $300.00. The 2008 offence, ‘No Driver’s licence’, for which Mr Ford was fined $250.00. Mr Ford was aged 35 – 37 years.
Thirdly, 2012 – 2013. Three offences. On 24 September 2012 (from an incident of 13 February 2012) ‘Possess a Prohibited Drug (Amphetamine)’. No evidence offered - Dismissed. And 7 January 2013 (from incidents of 29 September 2012) ‘Possess a prohibited drug (Methamphetamine)’. Fine of $750.00; and ‘Obscene acts in public’. Fine of $1,000.00. Mr Ford was aged 41 – 42 years.
Mr Ford has not been convicted for any ‘serious offence’ as prescribed by the Working with Children Act.
The two convictions and one charge, for drug possession occurred in circumstances when Mr Ford was in charge of a vehicle, and the drugs were found, when Police stopped Mr Ford for other reasons.
The obscene act in public related to circumstances whereby Mr Ford had parked his car in a car hire car park, and was observed by a member of the public, dressed in women’s high heeled boots and G-string, masturbating whilst partly outside, and then fully inside the car with a blanket.
Mr Ford’s general explanation to the criminal offences is that, in relation to the 2006 drug possession conviction, he denies that the very small amount of drugs found in his car were his, but another passenger who did not admit ownership, and so he pleaded guilty as they were found in his car.
In relation to the early 2012 offence Mr Ford notes the charge was dismissed and the course of events recorded and presented by the police were strongly disputed.
In relation to the 2013 convictions Mr Ford explained that he was under external stress with his relationship and family break-up. Mr Ford explained that it was a devastating time for him and he felt helpless especially as his partner had advised him she was moving to Queensland with their two young children.
At hearing Mr Ford gave an overview of his personal history, growing up in a supportive environment in Western Australia, and ultimately finding stable work in the mining industry. Mr Ford stated a move to Queensland was ‘not an option’ after his partner advised she was moving there with their children in late 2012. Mr Ford described how he works 3 weeks on in the Surat Basin, and returns to the Sunshine coast for one week where he has custody of his two young children. Each week off, Mr Ford ‘flies’ his mother and/or father from Western Australia to Queensland for the week. Mr Ford described how he is involved with his children’s lives full-time, and involved in school and out of school events. Mr Ford advised he applied for a Blue Card so that he could continue to enrol his children in the local surf club Nippers’ programme.
Mr Ford described being exposed to ‘pot’ growing up and stated that later he had to decide ‘work or drugs’. Mr Ford stated his first involvement with methylamphetamine was in 2006 after the break-up of his marriage. He stated he was ‘led astray’. Mr Ford stated he ‘did use’ methylamphetamine prior to the charge, but denied the methylamphetamine found in the car in relation to the 2006 offence was his, but stated ‘I’m responsible for what is in my vehicle’.
In relation to the February 2012 offence Mr Ford gave his version of events, and stated he was not ‘drug affected’ or ‘on a bender’ as described in the police information sheets. He stated he had been to the Casino that evening and had not used drugs. He stated he was about to drop a couple of people off at their homes, but decided to empty the car of rubbish at a service station, beforehand, which is when the Police intervened. An empty Clip seal bag that was found believed to contain traces of amphetamine. Mr Ford denied the bag was his. Mr Ford stated that that charge was dismissed, as police had no evidence to offer. Mr Ford Mr Ford stated that he ‘did not think it fair’ that he should be assessed on that matter.
In relation to the September 2012 incidents Mr Ford stated he did drugs on the day and things he was unaware of. He stated that he hadn’t used drugs prior and it was an ‘outlet for things going on around him’ and stated that it was ‘an easy way out’. Mr Ford stated he has a ‘disgusting’ feeling reading back on the incident. Mr Ford stated he thought he was in a private place, but that his ‘perceptions were clouded’ by the drugs.
Mr Ford denied using drugs between 2006 – 2012, and he opined he has never been addicted.
Since September 2012 Mr Ford stated that he has undertaken an online Lifeline training course on relationship breakdown and domestic violence, and has volunteered with Lifeline for about six months. Mr Ford also stated he helps younger people with the stress ‘Fly in Fly out’ has on relationships and is involved as a ‘connector’, a person who refers co-workers to appropriate services, in the ‘Mates in Construction’ programme.
Mr Ford opined he acknowledges his vulnerabilities around relationships but stated he thinks he can address the triggers. He stated he was a ‘bit angry’, but that now he is ‘more tolerant’. Mr Ford stated he might have 1 or 2 extra sessions with the counsellor to help him with his general well-being, dealing with conflict and why relationships break down.
Mr Ford stated that if the Chief Executive gets it wrong, in issuing Blue Cards, ‘kids get hurt’. Mr Ford stated any drug use is of concern and that he does not condone drugs in any way. He stated he let himself down.
Mr Ford described the drug-testing regime of the mining industry. He estimated he had been tested up to 100 times and has never failed. Mr Ford stated that he had been tested 3 or 4 times in the last 6 months. Mr Ford stated he would be instantly dismissed if he returned a positive drug test, or recorded an alcohol level over 0.05.
Mr Ford stated if his convictions had been ‘recorded convictions’, which they were not, he would be required to advise his employer and he would be dismissed.
Mr Ford stated that he is involved in Family Court proceedings with his former partner concerning child custody, but that matter is adjourned until February 2015. Mr Ford expressed hope that a consent agreement would be reached beforehand.
Mr Ford stated he had friends in Queensland and they are aware of drug use history and his vulnerabilities, but not the full details. Mr Ford stated it was embarrassing.
Janelle Bardsley, Psychologist, provided a report dated 6 October 2014. Ms Bardsley, a former Police Officer, noted that the report was made for the purpose of the review and Mr Ford understood how it could be used in the proceedings.
Ms Bardsley outlined Mr Ford’s personal and legal history and psychometric test results. Ms Bardsley noted Mr Ford’s Personality Assessment Inventory was entirely within normal limits. Ms Bardsley opined Mr Ford does not present with any current high risk factors or triggers, which could contribute to him reoffending. Ms Bardsley opines breakdown of his previous relationship appear to be the catalyst for his poor problem solving which has led him to experience intimacy deficits, loneliness and feelings of low self-worth. To mitigate these negative emotions Mr Ford used illicit substances and cross-dressing
Ms Bardsley opined Mr Ford’s ‘protective’ factors included strong family support, stable employment and his motivation to do all he can to support this children socially and academically. Mr Ford reported to Ms Bardsley that he is now more open and honest with his communication with friends and family.
Ms Bardsley opined Mr Ford appeared genuine in his expressions of remorse and sadness for the harm he caused.
Ms Bardsley opined the risk of reoffending is extremely remote, however opined Mr Ford would benefit form counselling to develop strategies to address relapse prevention.
At hearing Ms Bardsley confirmed her report and opined Mr Ford has previously ‘flown under the radar’, but that he has now had a ‘big wakeup call’ and has learned to manage his emotions better. Ms Bardsley opined Mr Ford was previously ‘emotionally immature’ but has ‘matured a bit’ and developed emotionally and moved away from friends.
Ms Bardsley opined on-going counselling would benefit Mr Ford moving forward to develop strategies for stress, to explore intimacy, sexuality and attachment issues and develop self-esteem, conflict resolution and relapse prevention.
Ms Bardsley opined Mr Ford was not a risk at all to working children.
Mrs Ford provided a statement, undated and signed by her and her husband, outlining Mr Ford’s personal history, the stress of the relation breakdown on him and his commitment to his children. Mrs Ford outlined the strong family support.
At hearing Mrs Ford reiterated her support for her son and stated Mr Ford was previously in a hard place, but now he is focussed on his children. Mrs Ford opined Mr Ford has matured and coped well over the last 12 months in the face of family court proceedings and his father’s ill health.
Darren Dorant, a long-time friend of Mr Ford’s provided a statement dated 6 March 2014 supporting Mr Ford and highlighting a close family network, stable employment and involvement in his children’s lives.
Submissions
Mr Ford’s legal representative, Mr Tutt, submitted that as Mr Ford’s offences are not serious offences, he should be issued with a positive notice as intended by the legislature, as his case is not an exceptional case, in that it would not be in best interest of children to issue a positive notice.
Mr Tutt submitted, relying on the matter of Lane[8] that as the circumstances of Mr Ford’s offences are not exceptional circumstances, his is not an exceptional case.
[8]Lane v Commission for Children and Young People and Child Guardian [2014] QCAT 49 at 21.
Mr Tutt submitted, with particular focus on the September 2012 offences, that these occurred during a relationship breakdown, did not involve children, were not violent and were not exhibitionistic, unlike in the matter of Ward [9], as Mr Ford thought he was in a private location, and is very embarrassed and remorseful about the incidents.
[9]Ward v Chief Executive Public Safety Business Agency [2014] QCAT 399.
Mr Tutt submitted that in his testimony, Mr Ford was candid about his recreational drug use and accepted responsibility, and did not seek to understate his offending.
Mr Tutt further submitted that the 2006 offence and the 2012 offences are not demonstrative of any consistent or regular offending. Mr Tutt submitted that since September 2012 Mr Ford has moved to Queensland for employment and to be closer to his children and that this contact has been positive.
Mr Tutt, relying on Ms Bardsley’s report, submitted that Mr Ford has developed insight into his behaviour, has the ‘protective’ factors of strong family support, employment and a close and involved relationship with his children, to reduce risk of reoffending. And Ms Bardsley concluded that risk of reoffending is ‘extremely remote’.
Overall, Mr Tutt submitted that Mr Ford should be issued with a positive notice as his offences were not serious, occurred in the context of relationship breakdown and proposed relocation of his children to Queensland. That these circumstances are not exceptional, and that Mr Ford has gained insight and is at low risk of reoffending, and he has many protective factors in place.
The Chief Executive submitted that ‘the offences of concern’, include those convictions and charge between 2006 and 2012. The Chief Executive noted Mr Ford was 35 years at the time of his first drug conviction, and 41 years at the time of the most recent charge and conviction. The Chief Executive submitted that the continued offending and recent nature of the offences raises concern of significant risk of recidivism, and that Mr Ford’s criminal history as a whole raises significant concerns as to his ability to present as a positive role model, and act in the best interest of children.
The Chief Executive submitted that whilst it recognises Mr Ford has committed to remain drug free in the future, has a close relationship with his family who provide support and guidance, has had stable employment for his entire adult life, and that Psychologist, Janelle Bardsley opined that Mr Ford’s clinical profile was entirely within normal limits and his risk of reoffending extremely remote, there were a number of risk factors. These included Mr Ford’s ability to respond appropriately to life stressors, and whether he has developed skills and strategies to make appropriate behavioural choices in the future.
The Chief Executive noted that whilst under the influence of a significant amount of methylamphetamine, Mr Ford engaged in acts of masturbation in a public place while wearing little clothing. The Chief Executive submitted that a member of the public, who reportedly felt ‘sickened’ by the actions, witnessed this highly concerning act. The Chief Executive submitted that Mr Ford paid little regard for whether he exposed others, including children, to this behaviour.
The Chief Executive further submitted that, at hearing Mr Ford was not full and frank in his oral disclosures regarding drug use, as when he was directly questioned on drug involvement outside the offences, he denied he had involvement and opined he was ‘unlucky’ to have been apprehended by police on the three times he had ever used drugs, which the Chief Executive submitted was contradictory to his self-reporting to Ms Bardsley. The Chief Executive submitted that this raises concerns as to Mr Ford’s ability to accept responsibility for his actions and the extent of his drug use in the past.
The Chief Executive also noted Ms Bardsley, whilst reporting Mr Ford had had a ‘wake-up call’ and had ‘matured significantly’ since 2012, described Mr Ford as having been being ‘emotionally immature’, and opined he required counselling to work on issues surrounding ‘intimacy, sexuality, behaviour and conflict resolution’, the Chief Executive submitted that Mr Ford acknowledged that he had not sought formal counselling earlier and only sought counselling for the purpose of the review.
The Chief Executive submitted that it was clear Mr Ford had tendencies to engage in cross-dressing but that he was not forthcoming about this in his evidence, and that as he continues to be embarrassed and secretive about this and his drug use, his ability to respond appropriately to life stressors is compromised.
The Chief Executive submitted that given the last offences only occurred recently, that insufficient time has passed to be satisfied of Mr Ford’s ability to appropriate respond to stressors, given the gaps in his drug use and offending in the past.
The Chief Executive submitted overall, that Mr Ford’s case is an exceptional case in which it would not be in the best interest of children to issue a positive notice.
Considerations and conclusion
Ordinarily, a person who applies for a Blue Card who has either no convictions or non-serious offences, will be issued with a ‘positive notice’ unless the applicant’s case is an exceptional case, whereby it would not be in the best interest of children to issue a positive notice.
Mr Ford has a number of ‘spent’ (equivalent to unrecorded in Queensland) convictions relating to alcohol/driving and possession of drugs. A charge relating to the possession of a drug was dismissed. Mr Ford also has a ‘spent’ conviction for ‘Obscene acts in public’ from an incident in September 2012.These are not serious offences for the purpose of the Working with Children Act. Mr Ford received fines for all convictions. The Police information account of the offences provided differs to those offered by Mr Ford either by degree in the 2006 offence, or significantly as in February 2012 charge, that was dismissed.
Whilst the Tribunal acknowledges that there has been long periods between offences (over 10 years between the drink/driving offences and the 2006 offence, and six years between the 2006 offence and the 2012 offences) and that these three groups of offences could be characterised as situational, it is clear on his criminal record alone Mr Ford has made poor and reckless decisions in relation to over use of alcohol and use of illicit drugs whilst he has been in charge of a motor vehicle over his adulthood.
The Chief Executive submitted Mr Ford was not candid about his drug use, and in the instance the Chief Executive described, the Tribunal agrees that appeared to be the case. However, the Tribunal is satisfied that whilst Mr Ford did not herald his drug use, and found Mr Ford a poor historian, not particularly articulate and requiring prompting to obtain direct responses, Mr Ford was candid in his reporting to Ms Bardsley, who at hearing described him as someone ‘flying below the radar’ and in her report recorded Mr Ford’s substance use history that included binge drinking, smoking cannabis, consuming the odd pill (ecstasy) and on irregular occasions consumed Methamphetamine, and in September 2012 binged on Methylamphetamine over a three week period. Ms Bardsley recorded that Mr Ford understood how the report was to be used in the proceeding. On questioning by the Tribunal at hearing Mr Ford admitted that he ‘did use’ methamphetamine prior to the 2006 offence.
Along with a criminal history of drink/driving and possession of drug offences, in September 2012 Mr Ford was charged with undertaking an obscene act in public. Mr Ford was observed by a member of the public, scantily dressed in a G-String and high heeled boots, masturbating, whilst he was partly outside and then fully inside his car and under the influence of drugs. Whilst Mr Ford thought he was in a private place, it is clear he had parked in a place observable to the public and his actions ‘sickened’ a person passing-by.
Mr Ford stated he did things he was ‘unaware of’ and his ‘perception was clouded’. Mr Tutt however, submitted this was not exhibitionist-like in the Ward case. Whilst the Tribunal agrees that the circumstances of the obscene acts in that case differed and exhibitionist, where the applicant exposed his genitals in public whilst under the influence of alcohol, the Tribunal also notes at the hearing of that matter Mr Ward, who was originally form New South Wales where the offences took place, provided four character references from persons who were all aware of his convictions, and who attested to his changed behaviour and his interaction with the referees children, including the from President of the local surf club. Mr Ford has provided no references from people in Queensland to attest for him.
Mr Ford was less open to discuss his tendency to cross-dress. Mr Ford essentially presented this incident as a one-off, and Ms Bardsley’s report referred only to cross-dressing as a function to alleviate and cope with negative emotional states, whilst providing no history of this issue for Mr Ford. Mr Ford’s mother however disclosed that she had found women’s clothing in her son’s possession from a much younger age.
Although the Tribunal acknowledges that this is an ‘embarrassing’ issue for Mr Ford to discuss, and cross-dressing is of itself not a directly relevant consideration to ground a negative notice, the Tribunal agrees with Chief Executive that, whilst this issue remains unresolved, Mr Ford’s ability to respond appropriately to life stressors is compromised. Ms Bardsley opined Mr Ford would benefit from counselling to explore issues around intimacy, sexuality and attachment and to develop strategies for stress. Mr Ford stated that he might need to undertake 1 or 2 more extra sessions with Ms Bardsley.
Mrs Ford was clearly very supportive of her son, and his children, and Mr Ford’s long-term friend Mr Dorant, attested to his character. The Tribunal accepts Mr Ford has strong family support and has a long-time supportive friend in Mr Dorant. However, Mr Ford has provided no references from his new and stated changed life in Queensland. Whilst this in not unsurprising given Mr Ford’s embarrassment about the details of the September 2012 offences in particular, it further supports the Chief Executive’s submission that Mr Ford is secretive and lacks candour about particular issues, and this in turn, raises concern about his ability to deal with life stressors appropriately.
Although Mr Ford, supported by Mrs Ford and Ms Bardsley, opines that he has matured, and he states that he has undertaken training to deal with relationship breakdown and the stress of Fly in Fly out on relationships, the Tribunal notes Ms Bardsley has only met Mr Ford, at most on two occasions for the purpose of providing a report for this review. Ms Bardsley recommends further counselling to deal with developing strategies to avoid stress and other more personal matters. Mr Ford has committed offences against a background of a supportive family environment and stable employment. Mr Ford has not fully addressed some fundamental personal issues and it appears he is somewhat reluctant to do so, believing 1 or 2 more counselling sessions might do.
Mr Tutt submitted that Mr Ford’s circumstances aren’t exceptional, therefore his is not an exceptional case. Whilst it is true that exceptional circumstances may equate to an exceptional case, an absence of exceptional circumstances does not necessarily equate to a non-exceptional case.
Nonetheless, the Tribunal is satisfied that the circumstances surrounding Mr Ford’s September 2012 offences are exceptional. These exceptional circumstances are compounded by the recent nature of those offences, Mr Ford’s overall criminal history, his continuing embarrassment and apparent reluctance to address some deeply personal issues in a more formal manner. In the circumstances the Tribunal is satisfied that Mr Ford’s case falls outside the general rule, whereby a positive notice should be issued for an applicant with non-serious offences, into the exceptional case realm, and for which a negative notice should be issued.
The Tribunal confirms the decision of the Chief Executive, of 28 April 2013, to issue a negative notice to Aaron Elliott Ford. The Tribunal orders accordingly.
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