GI v Public Safety Business Agency
[2015] QCAT 453
•4 November 2015
| CITATION: | GI v Public Safety Business Agency [2015] QCAT 453 |
| PARTIES: | GI (Applicant) |
| v | |
| Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML174-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 9 October 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 4 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1.The decision of the Public Safety Business agency of 11June 2015 to issue a negative notice for a blue card is confirmed. 2.The Tribunal prohibits the publication of the names of the applicant and his children. 3.The reasons shall be published in de-identified form. | ||
| CATCHWORDS: | Childrens matters - exceptional case not in the best interests of children to issue a blue card - assault against a child - history of domestic violence - recent convictions for offences at a mature age | ||
APPEARANCES:
| APPLICANT: | GI |
| RESPONDENT: | Public Safety Business Agency |
REASONS FOR DECISION
GI’s request for a blue card was rejected by the Public Safety Business Agency on the basis that they found an exceptional case existed where it was not in the best interest of children to issues a positive notice. GI’s criminal and domestic violence history formed the grounds for this decision. GI, now aged 45 years, has recently trained in the field of community services and is seeking employment and therefore requires a blue card in many roles.
Recent aspects of GI’s criminal history include convictions for assault upon a 12 year old boy some three years ago, unlawful stalking and a number of charges of entering premises with the intention to commit an indictable offence. His criminal history spans a period from 1985, at age 15 until the last an offence committed in 2012, at age 42.
The Tribunal in considering a review of the decisions of the Public Safety Business Agency, hereafter, (the Respondent), must apply the relevant provisions of the Working with Children (Risk Management and Screening Act) 2000, hereafter “the Act”, and the Queensland Civil and Administrative Tribunal Act 2009 (Qld), hereafter the “QCAT Act”.
Whether GI’s circumstances constitute an exceptional case within the meaning of s221 of the Act is the issue at hand. In circumstances where a non serious offence, or non excluding offence have been committed the Tribunal must issue a positive notice unless it is satisfied that an exceptional case exists where it would not be in the best interest of children to issue a blue card. The Tribunal must make this decision on the facts the best interests of children as its paramount consideration.[1] The term exceptional case not defined in the legislation and case law confirms that whether each case is an exceptional case depends on the facts of the specific facts on each case. It must however be “beyond the ordinary circumstances reasonably expected to occur”[2] and considered in the context of the legislation and the interests of the persons whom it is designed to protect. [3]
[1]Working with Children ( Risk management and Screening) Act 2000 (Qld) s 6.
[2]In the Marriage of Sandrk (1991) 104 FLR 394 at 399-400.
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The Tribunal is however required to consider s 226 of the Act as part of the determination as to whether an exceptional case exists.
GI has convictions for offences including possessing dangerous drugs, common assault and unlawful stalking and entering premises and committing an indictable offence by break, and further entering with intention to commit indictable offences. .
The offences in GI’s recent criminal history are not characterised as serious or excluding offences in the legislation.
The nature of the offences concerns the Tribunal when its relevance to employment with children is considered. The evidence indicates that GI assaulted a 12 year old boy some three years ago causing the child to fall back and cry. GI explained that the incident occurred in the context of a dispute between this child and his own son, where the said child had already struck his son, and continued to throw rocks at their house. His evidence at the hearing was that he did not give a statement to police, but had given the child a light shove only and he did not move in response to this, in contrast to the police statement of evidence. He said in hindsight it was not appropriate to respond in this way. Nonetheless he pleaded guilty to the facts as noted in the police report and was convicted on that basis. He was fined $500 with a conviction recorded. The Tribunal accepts that the evidence indicates that in response to GI’s anger a 12 year old child was intimidated and physically threatened in this interaction. The incident demonstrates a lack of self control and poor role modelling. This offence was committed when GI was aged 42 years, and occurred in recent years.
He was convicted for stalking over a 4 month period. He claimed that he had been in a relationship with the complainant. He denied that any stalking had in fact occurred, claiming instead that the women’s husband had links with the police, and had a vendetta against him. He said the complainant would come to his home as a refuge from her husband. Nevertheless he pleaded guilty to the offence with which he was charged and was convicted and fined $300. The Tribunal cannot go behind a plea of guilty despite the oral statements of GI at the subsequent Tribunal hearing. The Tribunal found GI dismissive of the gravity of the offence and accepts the Respondent’s submission that GI has minimised his behaviour in both of these offences.
GI was convicted of three counts of breaking and entering premises and committing indictable offences and two with intent. GI explained he broke into shops to steal in 2010, aged 40 years. He said this had occurred arising from a period of stress in his life as a result of ongoing family court dispute. The Tribunal is concerned that GI has turned to petty crime at periods of high stress and considers that this demonstrates poor coping mechanisms for dealing with stress. The Tribunal is particularly concerned that this is poor role modelling for children.
His conviction for dangerous drugs was some 28 years ago at age 17. Due to the passage of time, the Tribunal has placed no weight upon this offence.
There was information before the Tribunal relating to GI’s domestic violence and child protection history. In August 2005, GI was named as responded to a two year protection order which named his two children. He said that the children’s mother had taken out a protection order because she wanted to get custody of the children in a family law dispute. He said they were “beat up charges” and that he did not oppose the protection order at the time because of the costs of legal representation.
The child protection material demonstrates that the children were exposed to domestic violence for a five year period. The substantiated concerns relate to GI grabbing his former wife by the neck and threatening her while the children were present in 2006. In this incident there was evidence that he jaw had been dislocated. At hearing GI denied these facts and indicated the incident related to a fight she had with another girl. He emphasised that no charges were laid against him around this incident. He denied his children had witnessed any physical violence, but had seen verbal arguments.
In 2011, allegations were notified to Child Safety that he struck a partner in the jaw. In a further incident in November 2013 allegations were made that he slapped or punched his partner in the head following moderate alcohol consumption. He denied this saying it was a “beat up story”, aand that again no charges had been laid.
The child protection material also conveys that VT, a teacher at Grand Avenue State School had been concerned about GI’s behaviour when he verbally “abused children at the front gate” of the school, telling the children to “fuck off” on 29 February 2012. GI had difficulty recalling the incident.
The Tribunal considers that there is substantial indication that there is a pattern of reactive and aggressive behaviour underlying the offences, and domestic violence history. The Tribunal did not accept GI’s position that most of the allegations were untrue. At hearing, GI minimised the conduct sourcing the convictions and appeared to be evasive of the presented facts. He demonstrated limited appreciation of the consequences of his conduct upon his own children. He did state that if the children had been exposed to domestic violence it would be emotionally scarring when they grew, but gave no further indication of is appreciation of its impact. He indicated that he had undertaken parenting courses and parental orders program, which he admitted was under court order in the family law dispute. He indicated that he did not accept the referrals for counselling and support recommended by the Department of Child Safety during their interventions. The Tribunal draws from this that there is an unwillingness to acknowledge and deal with the concerns about the risk of this aggression upon his own children.
GI provided no witnesses in support of his application. His submission to the Tribunal was that the record was flawed and inaccurate. Yet he pleaded guilty to those facts and was convicted of the offences.
The Respondent submitted that the risk factors outweighed the protective factors in this case and therefore this should be considered an exceptional case. They noted that protective factors existed wherein GI presented as a committed father with primary care of his children with a stable home life and steady employment, and regular attendance at a men’s group through his church. However, they submitted that risk factors are prominent. Specifically, they considered that GI had minimised his conduct in offences for which he had pleaded guilty. They considered that he did not fully articulate triggers to anger or his role in the domestic violence with former partners. They argued that his responses to the 2012 assault upon a 12 year old boy did not demonstrate insight into the impact of his behaviour upon the child and other children present. They submitted that there was a lack of evidence of learning from any courses, and no demonstration of any insights gained. The Respondent noted that the child related courses that had been undertaken as a requirement in family court proceedings, rather than at his own initiative. They noted that offending as a mature adult is a significant risk factor, and such offending is relatively recent. Further, they submitted GI had no demonstrable conflict resolution strategies in child related situations. They Tribunal accepts all of these submissions.
The Tribunal notes that there have been instances where GI has come into conflict with children in 2012 at his home, and outside of the school. Those instances reveal that he has a poor ability to control his anger in front of children and a limited appreciation of the impact of his behaviour upon them. The Tribunal notes a volatile history is recorded in his criminal history and dealings with police and Child safety. There appears to be no significant insight into the concerns about this conduct. The incidents appear to be recent and reasonably consistent in demonstrating aggression and reactivity. The Tribunal considers that this is an exceptional case in which it would not be in the interests of children to issue a positive notice.
The decision of the Respondent is confirmed.
The Respondent seeks a non publication order in relation to the children of the applicant. The Tribunal is satisfied that it is in the public interest within the meaning of section 66 of the QCAT Act to withhold the children’s identity by not identifying their father in this matter. Openness and Accountability principles can be balanced by the public access to the Tribunal’s reasoning in de-identified form.
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