GD v Commissioner for Children and Young People and Child Guardian
[2012] QCAT 500
•5 October 2012
| CITATION: | GD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 500 |
| PARTIES: | GD |
| v | |
| Commissioner for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML077-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 16 March 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | M Johnston, Member C Benson, Member S Mills, Member |
| DELIVERED ON: | 5 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian made on 5 April 2011 to issue a negative notice to the Applicant GD is confirmed. |
| CATCHWORDS: | Suitability for Blue Card – history of convictions for domestic causing harm to his de facto partner, children and sister – whether an exceptional case exists |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr GD self represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Adele Noble |
REASONS FOR DECISION
Background to the Proceedings
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”).
Application history
On 24 April 2010 an Application was lodged by the Applicant for a positive notice and blue card under the Act.
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 7 October 2010, the Applicant was invited to make submissions about his criminal history which had been obtained by the Commissioner. The Applicant provided submissions to the Commissioner on 24 January 2011.
On 5 April 2011 the Applicant was advised that the Respondent had decided to issue the Applicant with a negative notice.
On 29 April 2011 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.
The Tribunal conducted a compulsory conference in the matter and the matter was subsequently listed for hearing on 24 October 2011. On 6 October 2011 a directions hearing was held and the hearing date was vacated and directions given for witness evidence and hearing arrangements. The matter was relisted to proceed to a hearing on 24 February 2012. This date was vacated at the request of the Applicant and the matter was set to proceed on 14 March 2012.
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.
Pursuant to section 312 of the Act, the Respondent was notified of the Applicant’s police information. 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 decision making process
[10] 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.
[11] 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.
[12] Harm is defined in the Act to ‘have the same meaning given in the Child Protection Act 1999, section 9[7], namely:
[7]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.
[13] 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.”
[14] There is no ‘onus’ of proof on either the Applicant or the Respondent. There is a wealth of case law that supports this proposition with the leading authority being McDonald v Director General of Social Security[8].
[8][1984] FCA 57; (1984) 1 FCR 354.
[15] 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[9] of the Act, that also bind the Tribunal in its decision making, and it is to this consideration that all others must yield[10].
[9]Section 96 of the unamended Act.
[10]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.
[16] Any hardship or prejudice suffered by the Applicant is irrelevant to this paramount principle[11]. 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”[12].
Evidence
Documentary evidence
[11]Chief Executive Officer, Department for Child Protection v Scott(No 2) (2008) WASCA 171 at 23.
[12]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
Criminal history
[17] The particulars of the Applicant’s criminal offending are summarized under paragraph 2.2 of the Respondent’s Reasons document. The Applicant’s criminal history runs for one and a half pages starting with 3 charges: an assault occasioning bodily harm; assault police; and resisting police. He was convicted on 4 March 1997. He was convicted and fined. On 23 March 1990 he was convicted and fined for hindering police. On 20 July 1994 he was charged with aggravated assault on a female. He was convicted and ordered to do community service and was placed on a Domestic Violence Order. On 17 April 1996 he was convicted and fined and ordered to do community service. On 19 November 1997 he was convicted of assault occasioning bodily harm was convicted and fined and ordered to do community service. On 22 November 2006 he was convicted of common assault and fined. He was also convicted of breaching his Domestic Violence Order and the period of the Protection Order was extended. On 3 June 2009 he was convicted of breaching the alcohol management laws by bringing liquor into a restricted area. No conviction was recorded. The Tribunal comments on the most relevant offences later in this set of reasons.
Applicant’s evidence
[18] He acknowledged that he had made mistakes in the past. He had drunk heavily and had been involved in domestic violence and other violent behaviour. He had suffered from depression for many years and had a problem with anger management. He stopped drinking heavy beer around 2008 and has seen many positive changes in his life since he had done so. He has learnt from the trouble that he has experienced over the last 10 years to moderate his drinking and deal with his depression in other ways.
[19] GD explained how he had learnt a lot out of the Anger Management Program he had undertaken in 2011 through WorkLink. He learnt about triggers and how to put in place protective strategies to deal with anger management. He enjoyed working with the psychologist and it had helped him address his anger management problems. He has put the skills that he has learnt into practice. He has learnt the benefits of both medication and healing through workshops but knows he needs to live with depression. He has experienced this for some 25 years.
[20] He knows a number of strategies to maintain his wellness. He uses breathing exercises; relaxation techniques; and is happy to talk with the psychologist; and understands that he is in a better position than other vulnerable people who he works with. His last violent incident was three years ago when he slapped his de facto in the face. He expressed remorse for his actions. He provides peer support for Phams an agency that helps people with mental illness. There are about 50 people he sees with five support workers. They try to get people into work and support them in employment.
[21] He is aware that his actions have caused harm to his family. He acknowledges that his actions have really impacted on his oldest child. He offered as an example the actions of his eldest son who struck his de facto partner. He sees himself in the action of his son striking this girl. He has told his son that he has learnt from his experiences that he needs to tell boys don't hit your partner. He acknowledges that he has done this in the past and now accepts it is wrong. He wishes now that he never drank heavy beer and had not acted out in the way he did when drunk. He has been working with the Department of Communities Justice Group on how to create a safer community. His experience is really valuable in dealing with the negative problems within the community.
[22] He said to the Tribunal that he has made significant and positive changes to his life. He has learnt not to get into trouble but rather think before he acts. He has protected himself and others by using the tools that he has learnt. He wants to protect his children from following the same pattern of behaviour.
Cathy Martin
[23] She is the operational manager of WorkLink since October.
[24] Ms Martin described GD as a valuable assistant who has been totally professional and a good role model for the community. She has never seen him express his anger at work or in the social environment outside the workplace. He has obtained a great deal of stability with his life. He provides mental health support for approximately 50 people who apply for work with five supporters workers. He is very motivated and undertakes the role well. He undertakes the role with a great deal of understanding of the cultural issues. She looks on him as an elder of the community. He has grown as a person having undertaken the Anger Management Program and counselling offered by Peter Barrett psychologist employed with WorkLink. She sees as protective factors: further education; surrounded by supporting staff and management; and no issues where dealing with children. She did not know GD before his current employment with her organisation. She has seen him drinking but never inebriated. He seems more happy and calm.
[25] He works with vulnerable people and his life skills and experience is invaluable assistance to those people he works with.
[26] She was aware that he had a history including convictions for domestic violence and assaults.
Peter Barrett
[27] Peter is employed by WorkLink employment support group as a psychologist. He was asked by the operational manager Mr Bob Ingram in July to provide a report to support GD’s application to QCAT. He took GD through an Anger Management Program between August and October and he did the six sessions required of him. He attended for two hours a fortnight over a period of three months. He found that GD to be an open person who showed a deep sense of remorse. His evidence is that GD learnt how anger was activated; how his body felt; how hard it was to disengage anger; and how his judgement became impaired when he lost control of his anger. GD learnt strategies such as breathing exercises and relaxing. He learnt how to walk away from provocation until he was in a better state to deal with it. His levels of anger and anxiety fell in the period after he had undertaken the Program. Mr Barrett indicated that GD seems to have learnt coping strategies from the program. Once he learnt the tools he was able to make them into his habits.
[28] GD remains in contact with him and he remains available to support him into the future. He feels that GD does not have the responsibilities of the world all on his shoulder now – he has a more balanced outlook on life. He sees the following protective factors: GD is no longer drinking heavily beer; there is a common thread about drink light beer when he needs to be drinking; he is willing to learn and then put in place the learnings; he has a supportive work environment where he gets great personal satisfaction; he surrounds himself with a supportive network; and he has developed strong Christian beliefs. His life experiences are invaluable to traumatised indigenous people who can see him as a fellow sufferer as a role model. He is invaluable in establishing trust with the people he works with. When Mr Barrett needs to work with the community GD does all the groundwork for him. He has a strong way of connecting with the clients of the organisation. He sees as risk factors: GD lives in traumatised community where 84% are unemployed and every second person is traumatised because of their past; alcohol dependency which GD freely admitted up to 2008 and his use of alcohol self-medication for depression. He expresses his remorse and talked to the children about alternatives that everyone has in life. He has explained how he acted out through wrongly in anger on many occasions. He involves his children and cultural events.
[29] The report of Peter Barrett shows the pre-treatment GD reported significantly higher levels of anger and aggression along with high levels of depression, anxiety, and stress, then a normal person in the population. He comments as follows:
The results of the programme are that GD feels less anger and his moments of experiencing angry reactions are less than he did before completing the treatment. Also, the results obtained from the DASS demonstrate that GD yielded reductions in depression, anxiety and stress. Such results are supported by previous research… Demonstrating that depression, anxiety, and stress are frequently linked to anger. So as was expected, significant reductions in GD's anger levels correlated with significant reductions in GD's feelings of depression, anxiety and stress.
GD has learned to recognise those particular situations and circumstances in which he expresses anger and aggression. Further, GD has learned to recognise bodily sensations which are in conjunction with increases in anger, and has become more aware of thoughts signalling that he is experiencing anger. So GD is now able to recognise his ‘triggers’ and remove himself before he loses control and disintegrates further into aggressive behaviour, which demonstrates that GD has accepted responsibility to address his anger and aggression. Hence, in brief, GD has learnt strategies to manage his anger and control his aggression.
It is noteworthy, however, that heavy alcohol use was the most common factor involved in GD's pattern of offending. Certainly excess alcohol consumption preceded all incidents of domestic violence. GD has accepted responsibility for his alcohol misuse and since 2008 simply no longer drinks alcohol to excess. In other words, the main factor (i.e. alcohol misuse) which disinhibited GD's past aggression no longer occurs, which correlates with the cessation of further domestic violence.
Since 2008 GD has implemented improvements in many areas of his life. For example, GD has conveyed that he feels more purpose and meaning in his life nowadays, particularly in his working role over the past couple of years…. In therapy GD has experienced shame and deep reports pain and hurt he has perpetrated on to others, particularly his children and wife. GD as discussed in detail how his anger aggression has made his family withdraw and become more scared of him.
[30] Mr Barrett was asked questions about these results and about his report generally. He was asked to clarify that the results show a distinct improvement in GD's attitudes and beliefs, as well as his responses to stressors after the treatment. Mr Barrett was of the view that the motivation for undertaking the course was not to be seen as a negative and that GD sincerely showed improvement.
Proceeding
[31] The Tribunal at the end of the Applicant's case expressed the view that whilst the Applicant had submitted a positive case for blue card on the basis of his change in his life experience he had not actually called any witnesses who had known him before and after his change and who could corroborate his evidence to changes that had taken place in the community. It was also a concern that the only evidence came from the working colleagues (this is not a criticism of the witnesses themselves). It was suggested to GD that he must have had contacts within the community in which he lived but that he had not called anyone who could attest to this change of life outside of work. GD’s wife was the person who had been the major victim of his anger in the past. GD indicated she was happy to give evidence but was not available on the day of the hearing to do so.
[32] The Tribunal also noted that contrary to Peter Barrett’s evidence the last assault charge involving his wife took place in a store at a time when alcohol wasn't a factor when GD simply became angry with his partner and struck her.
[33] The Tribunal asked GD if he wanted the opportunity to call witnesses who could give evidence that they had seen great changes in his behaviour in the community.
[34] The Respondent rightly pointed out that most of his offending was in the context of domestic violence with his partner. Additionally one of his offences was that he had hit his sister with a chair. The Tribunal explained to GD that when someone has acted for many years in the past in a way that caused harm to other people in the community that the Tribunal wanted evidence that was corroborated by other witnesses who gave evidence. The Respondent had also noted that GD's history shows offences after an absence of several years.
[35] The Applicant indicated that he did have witnesses who would know him before and after and who could attest to this change in character over the last three years. In particular, he wanted his wife to give evidence.
[36] The Tribunal were of the view that if the Applicant had made major changes in his life that he and Peter Barrett talked about then there should be people in his life outside of work who can attest to the changes having been made. This was particularly important given that most of his offences were outside of work.
[37] The Applicant confirmed he could get to more witnesses who could give evidence before the Tribunal.
[38] The Respondent indicated it would agree to an adjournment on that basis with evidence required.
[39] The Tribunal granted an adjournment of the matter on that basis.
Respondent’s Submissions
[40] The Respondent was not given the opportunity to make final submissions because the Tribunal decided to make a decision on the basis of the evidence provided. This occurred because after a lengthy period the Applicant had not told the registry that there were any other witnesses. The Tribunal sets out in the following paragraphs a summary of the Respondent submissions contained in paragraph 7.4 of the statement of reasons document.
[41] The Respondent notes: with the exception of the offence of violence committed in 1986 all of the other offences of concern in paragraph 7.1 above were committed against the Applicant’s de facto wife over the course of their lengthy relationship. In addition, all of these offences were committed in their home and involved the application of violence by the Applicant against his wife. On at least two occasions, the domestic violence were reported to police by neighbours of the Applicant and complainant and on one occasion drew a crowd of people from the community watched the events.
[42] The Respondent points out that domestic violence orders were taken out or extended on at least three occasions between 1994 and 2008. The most recent order expiring on 22 July 2010 approximately one month after his application for a blue card.
[43] The Respondent submits that the Applicant had committed previous acts of domestic violence against the complainant, or made previous threats against them, which were considered sufficiently serious to satisfy the court that the complainant was in need of protection. Secondly the court was satisfied that the Applicant was likely to commit further acts of domestic violence, or to carry out the threat to do so. Thirdly the breaches demonstrated that the Applicant did, in fact, commit acts of physical violence in contravention of the orders.
[44] The Respondent points out that the need to protect children from physical or psychological harm has been identified as a primary consideration in determining what is in the child's best interests. The exposure of a child to persons who engage in a consistent pattern of violent offending behaviour affects the child sections what is acceptable behaviour and community, which is contrary to the child's best interests.
[45] The Respondent was of the view based on the evidence before her that the Applicant was not an appropriate person under the Act. The Commissioner considered it would be contrary to the best interests of children to issue a positive notice.
[46] The Respondent has also submitted that when making a decision in relation to whether or not a person is eligible to work with children is required to consider whether or not an Applicant has the capacity to promote the well-being of children. This includes a consideration of the person's capacity to act as an appropriate role model to children. Positive role models are particularly important for children on the basis that persons who demonstrate poor judgement and lack of respect for the law can affect children's perception of what is appropriate behaviour in the community. Children are entirely dependent on the adults around them to exercise proper judgement and restraint. The Respondent is concerned that the Applicant, by demonstrating his propensity for violence in a domestic context, does not provide a positive role of children, and to date, has failed to provide the Commissioner with adequate material to alleviate this concern.
Domestic Violence
[47] The Tribunal sees acts of domestic violence as a major concern.
[48] In the Marriage of Schwarzkoff, the Full Court of the Family Court stated:“…instances of family violence should not be seen as less than crimes and that violence must not be trivialized simply because it occurs within a domestic or ‘private’ context.”
[49] In the Marriage of Blanch [1998] FamCA 1998 page 12, the Full Court of the Family Court examined the welfare of a child in a domestic violence situation. The Court held:
His Honour’s discussion of the violence allegations appears to have largely overlooked the wider and more serious dangers that an abusive parent presents to children then the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper-vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development….Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law. Abusive behaviour by way of putting down a child can also lead to serious long-term emotional problems such as poor self-esteem and lack of self-confidence.
[50] Research supports that domestic violence is detrimental not only to children who witness the abuse, but also to children who hear it or see the after-effects.
[51] The Tribunal shares these concerns about the harm that domestic violence causes to children.
[52] It was clear to the Tribunal from his evidence that the Applicant had developed insight into the extent of the domestic violence and the impact on his children.
Nature of decision making
[53] The Commissioner's decision is set out in paragraph 7 of the Statement of Reasons document.
[54] The legislation is set out in paragraph 7.
[55] The details of the Applicant's criminal history are set out in paragraph 7.1 of the document. These comprise: four counts of assault occasioning bodily harm; two counts of common assault; one count of unlawful assault; one count of aggravated assault on a female; three breaches of domestic violence orders; and one breach of an order.
[56] These offences all involved acts of violence occurring in the period between 1986 and 2008 that is a period of over 25 years. The Respondent did not consider these periods of time to be significant periods involving non-offensive behaviour particularly in the light of the fact that the Applicant’s offensive behaviour has some cases been separated by up to 9 years and where the seriousness of the offences of fear is not to be diminished the seriousness.
[57] It was also noted in paragraph 7.4 on page 11 of 14 that the Respondent’s summary of exceptional reasons are set out.
[58] The Tribunal is of the view that on the evidence before the Respondent there was an exceptional case not to grant the application with a blue card.
[59] The Applicant applied for a review of the Commissioner's decision on 19 April 2011.
[60] The hearing which took place before the Tribunal enabled GD to give evidence and call witnesses that provided the Tribunal, with much more information than had been available to the Commissioner. Mr Bartlett provided a psychological report and gave evidence in favour of GD. Cathy Martin the operations manager of his employer also gave evidence and spoke strongly on GD’s behalf. The Tribunal also had the opportunity to hear GD’s evidence that he had made mistakes in life; how he had learnt from his experience and the anger management program which undertook after the commission has refused his application for the blue card.
[61] The positive factors: he had stopped drinking heavy beer; held an employment much of his life; positive influence and is working; learn skills from undertaking an anger management program.
[62] The negatives or risk factors: included a history of violence spread over 25 years; a past history of alcohol management issues; 25 years history of depression; and past anger management issues.
[63] GD is a man according to Peter Barrett who on his own admission has caused his family to withdraw and become scared of him. He is a man who smashed a chair over his sister. In addition GD provided accounts of how family members would find reasons to leave home to avoid confrontation and exposure to abuse when GD became intoxicated. GD realises that his children have been exposed to domestic violence.
Discussion of evidence
[64] The Tribunal has been told GD displays a safe role model to the community.
[65] The concern of the Tribunal is that GD has gone to such effort to establish that he is a new man and an elder of the community but was unable to call anyone from the community who was prepared to give evidence to support the fact that he was a changed man, including his wife or other adult family members.
[66] The Tribunal was of the view that GD should have no problem calling such evidence and GD undertook to call witnesses who could corroborate his account that he was a changed man. GD has failed to take up this opportunity. This leaves the Tribunal in the position that whilst GD has called new evidence at the hearing from working colleagues who talked about his work performance the only evidence that GD provided at the hearing that he was a changed man was from himself. The Tribunal is left in the position that it can only draw an adverse finding in respect of this issue of concern. The Applicant has failed to provide corroborating evidence that his behaviour outside work had changed.
[67] GD has a history of 25 years of acting violently. His history involves alcohol use, problems with anger management, and issues with aggression.
[68] The onus is on the Applicant to provide all the evidence needed to address the issues of concern and the Applicant has failed to that.
[69] The Tribunal restricts the weight it places on the evidence of Peter Barrett and Cathy Martin to the work situation.
[70] GD's history involves offences that have mostly occurred outside of the work situation.
[71] He has a history of causing harm to children which he acknowledged in the hearing. These are serious issues even if the offences themselves have not fallen within the definition of “serious offences” under the Act.
[72] The Tribunal congratulates GD for the steps he has undertaken however in the absence of evidence that people in GD's life who have seen the changes and talk about his life outside of work these remain unanswered questions.
[73] The Tribunal is satisfied that the Applicant’s criminal behaviour over his history which shows a pattern of domestic violence which raises serious concerns about the Applicant’s capacity to engage positively with children and young people.
[74] The Tribunal accepts the Respondent’s argument these periods of time are not significant periods involving non-offending in light of the Applicant’s criminal history which includes gaps of several years.
[75] The Tribunal accepts the Respondent’s submissions in relation to the harm caused by domestic violence. The Tribunal accepts the following can be conducted for the facts: see Page 11 of 14 of the Statement of Reasons.
[76] The Tribunal having reviewed the matter is of the view that the Commissioner was right to refuse GD at first instance on the basis of the information that was before her. The Tribunal was of the view that the risk factors outweighed the protective factors and that an exceptional case harm had been established.
[77] The Tribunal in coming to this decision has placed emphasis on the factors that were important in the body of these reasons. The Applicant’s criminal history and the nature of the offences involving actual harm to his own young children outweighed the positive protective factors. The Tribunal would really like to see that the changes that the Applicant has made to his life can be sustained but we have reservations about the Applicant working with other people’s children.
[78] The Tribunal takes the view that the Applicant’s convictions must be taken into the context of: (i) his criminal history as a whole; and (ii) the balance between risk and protective factors.
[79] The Tribunal is satisfied undertaking this weighting exercise that it has been established on the balance of probabilities that this is an exceptional case and the Applicant should not be granted a blue card.
[80] The Tribunal acknowledges that the Applicant has made a great effort to change his life over the last 12 months and applauds the Applicant for those steps. The Tribunal is also aware of the fact that there is a need for intelligent indigenous people to undertake work to help to help their communities. The Tribunal was of the view that it was highly commendable that the Applicant had undertaken work with Worklink. The Tribunal appreciates that this decision may place an obstacle in the Applicant’s course and that is unfortunate. However it would be wrong for the Tribunal on the evidence before it to make a different decision to the Commissioner. If, however the Applicant can show over a longer period that he has changed his life and stays out of trouble and is able to prove that is has improved in the community then this may be a basis for the Commission to take a different view in the future.
Unacceptable risk of harm and exceptional case
[81] The President in Commissioner for Children and Young People and Child Guardian v FGC [2011] has correctly determined that that unacceptable risk of harm is not a test under the Act.
[82] The Tribunal agrees that the decision under the Act gives the Tribunal a relatively unfettered discretion to determine whether an exceptional case exists or not.
[83] The Tribunal in this case follows the case of Court of Appeal decision in Maher’s matter. The Court of Appeal in that decision accepted that the Tribunal can assess whether there is an exceptional case or not by looking at the positive protective factors and the negative risk factors. Where the protective factors outweigh the risk factors then the Tribunal was entitled to determine that the exceptional case has been established or not.
[84] What the Court of Appeal in Maher effectively said that if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.
[85] In other words the Tribunal when looking at each case on its merits looks at the protective factors and risk factors. If the negative or risk factors outweigh the positive protective factors then this is a basis to determine that the exceptional case exists. In this case there are a cluster of negative factors which have been talked about above. The Applicant has also presented a cluster of protective factors.
[86] The Tribunal is not satisfied on the balance of probabilities that the protective factors outweigh the risk factors. This is particularly because the Applicant has failed to call evidence from witnesses to corroborate his change of life outside of the work place context. The Applicant was given the opportunity but failed to call witnesses who could attend the hearing of the Tribunal and talk about the changes he had made outside the workplace. The Tribunal is of the view that if this was right then this would have been a relatively easy thing to organise.
[87] The Tribunal accordingly makes the following Order:
The decision of the Commissioner for Children and Young People and Child Guardian made on 5 April 2011 to issue a negative notice to the Applicant GD is confirmed.
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