GMEM v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 311
| CITATION: | GMEM v Commissioner for Children and Young People and Child Guardian [2014] QCAT 311 |
| PARTIES: | GMEM (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML195-13 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 16 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Rogers |
| DELIVERED ON: | 10 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner to issue GMEM with a negative notice is confirmed. 2. The application by the Commissioner for an order prohibiting publication of identifying material is granted. |
| CATCHWORDS: | CHILDREN’S MATTERS – Blue Card – where criminal history of assault against children – where lengthy period without further offence – whether applicant represents an unacceptable risk to children – whether case is exceptional Child Protection Act 1999 s 189 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | GMEM appeared for himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Craig Capper |
REASONS FOR DECISION
GMEM has appealed a decision made by the Commissioner in response to his request for a positive notice and blue card. On 12 September 2013 the Commissioner advised GMEM his case was ‘an exceptional case’ such that it was not in the best interests of children for him to be issued with a positive notice.
The relevant legislation[1] provides that I must issue GMEM with a positive notice unless I am satisfied on the balance of probabilities, bearing in mind the consequences of the decision, ‘an exceptional case’ exists.
[1]Child Protection Act 1999; Commission for Children, Young People and Child Guardian Act 2000; Queensland Civil and Administrative Tribunal Act 2009.
GMEM is seeking a positive notice and blue card to be an adult occupant at a Family Day Care Service to be operated by his wife at their residential premises. This is not a relevant consideration. Once a blue card is issued it is fully transferable and unconditional and would permit GMEM to engage in any regulated area of child related employment. This means I must consider this application on the basis that it would be GMEM himself working with children.
The Commission for Children, Young People and Child Guardian Act 2000 creates a regime to ensure only suitable persons work with children in an employed or volunteer capacity. The guiding principle in administering the Act is that the welfare and best interests of a child are paramount (s 6). When deciding whether a person is a suitable person to work with children the paramount consideration is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing (s 155).
On application for a blue card an examination is made of the criminal history of the applicant. Where a person has a charge or conviction for an offence other than a serious offence, I must issue a positive notice unless satisfied that it is an exceptional case in which it would not be in the best interests of children to issue a positive notice (s 221). GMEM has been convicted of an offence other than a serious offence.
The CCYPCG Act sets out criteria which must be considered when determining whether there is an exceptional case (s 226) however the term itself is not defined and is a matter of discretion in each case. That discretion must be exercised within the parameters of the guiding principles of the Act.
I will now give consideration to the criteria of s 226.
Whether the offence is a conviction or a charge
GMEM has convictions for the following offences
a) Breach of Bail 02/03/2010
b) Assault occasioning actual bodily harm (2 charges) 14/05/2010
c) Contravene prohibition/restriction in apprehended violence order (domestic)
He has charges for the following offences
a) Common assault (x4)
b) Stalk/intimidate intend fear of physical/mental harm.
Whether the offence is a serious offence and if it is, whether it is a disqualifying offence
The offences are not serious or disqualifying offences under the Act.
When the offences were committed
The offences of concern were committed in 2010.
The nature of the offence and its relevance to employment or carrying on a business that may involve children.
The convictions relate to incidents of violence by GMEM against his wife, MM and their eldest child. The charges of common assault and stalk/intimidate intend fear of physical mental harm, which were withdrawn, related to violence against his wife and all their children.
The offences against the children resulted from a situation of disciplining the children. They raise concerns that GMEM was unaware of appropriate limits of discipline, the impact of his actions on young children, and a failure to show insight into his obligations to act protectively towards young children to ensure their physical and emotional needs are met.
The offences against MM occurred in the context of her attempting to protect the children. The material states the assault caused MM to scream and cry so loudly the neighbours came to check on her. The circumstances raise concerns GMEM did not recognise appropriate behaviours when dealing with his wife, the impact of their interactions on children, denial of the circumstances of the assault, minimising of his behaviour and failure to take responsibility for his actions when dealing with police.
In the case of a conviction – the penalty imposed and the Court’s reasons for its decision
The penalties imposed were two good behaviour bonds of 2 years.
Balance of s 226 factors
No further material was received or considered.
Oral Evidence
An interpreter was present however GMEM gave his evidence in English, only seeking the assistance of the interpreter occasionally. He was given an opportunity to comment on all the police evidence relating to an incident of 28 January 2010 which resulted in convictions for assault (‘the incident’).
GMEM said at the time of the incident he had been studying and the children were making a noise, which was disturbing him. He got up and went to the room the children were in. He said he took up a common cooking implement, a narrow stick with an arrowhead used for stirring food, and hit his wife about her legs once. The children were in the same room and they saw this. He thought it was not good for them psychologically to see this because they were scared. Also they might do the same when they get older.
He said he then hit two other children. The oldest and the youngest. He said he used a garden hose, which was in the room, he did not hit them with the cooking stick. He said he hit the two girls because they were making the noise. He did not hit his son because he was not making noise but he would have hit him if he had needed to.
GMEM said after he hit his wife she called the Police. He left the house, got in his car and went to sleep with a friend.
GMEM said he had been in Australia for five years and knew it was wrong to hit his wife. She had made him angry by failing to keep the children quiet. He hit her about the legs because she was pregnant. He wasn’t trying to give an injury or get revenge. He denied he grabbed her by the hair. He had heard on the news that a person had been burnt but he denied using words to threaten to burn his wife. He denied violence against his wife had occurred previously.
GMEM said a few weeks later, after an appearance at Court, he wanted to talk to his wife. He said he knew he was under an Apprehended Violence Order but wanted to talk to her anyway and he did. This resulted in the further conviction of a contravention of an Apprehended Violence Order.
He denied the entry in the Police notebook at page 58-59 which will be described later in this decision.
GMEM says he understands the Australian law. It says don’t assault a person, don’t hit a kid with a stick. He has learnt to control the children without hitting them by taking away their privileges. He knows himself now. He says this incident is the first time and the only time he has hit his wife because if there had been others they would have been reported.
GMEM gave evidence about his work, study and plans for the future.
MM gave her evidence through the interpreter. She says on that night her small children were playing, drawing. They started to fight. Her husband asked them to stop. When they didn’t stop her husband was going to hit them, but she said ‘No, they are small children’ and tried to stop him. Her husband hit her instead of the children and then hit the children.
MM said this was the first problem from the day they were married. It hasn’t happened before, this was the first problem. After her husband hit her she was very upset and called the police. When the police arrived her oldest daughter helped her to talk to the police. She said she knows a few words of English but not enough.
MM agreed the police said there were welts on her body. She said it was difficult to see welts because she was nine months pregnant and her whole body was swollen. She said she was only hit once with a cooking utensil. However when she jumped out of the window that left marks on her body. At this stage in her evidence MM said her husband hit one child once and then he hit her. She said that when she was trying to call the police her husband pulled her by her hair. She was worried for the children, she didn’t want them to see the problems so she put them in a room and then she went out the window.
When asked she said she doesn’t know if her husband threatened to burn her. She said her husband didn’t use those words but she might have said them to the police because she was upset at the time. She said she didn’t lie to the police, she was upset.
MM denied changing her story from what she had previously told the police. She said today she is telling the true story. In the past there was a Sudanese interpreter who did not understand what she was saying and she did not say those things to the police. She agreed the police were not making things up but said the evidence was not interpreted correctly.
MM gave evidence about her work commitments and how she would like to care for children in her home
GZ, a family friend, gave evidence to support this application. She said she met GMEM and his family at the park and through the Logan TAFE about one and a half years ago. She said the family is always very happy. She often sees GMEM cooking and playing with the kids. She said she has a Blue Card and knows what is required and has no concerns about GMEM having a Blue Card.
She was very shocked when told that GMEM had hit MM but thinks that was just stress. She says she is a close friend of MM however they speak in English because they do not share the same first language.
Police Evidence
The written evidence of the police reporting the incident of 28 January 2010 is that they observed numerous long welted lines on both of the victim’s (MM’s) legs. They observed about five long welted marks across the legs of the oldest child, which were similar to her mother’s. They observed a small raised welt on the forehead of the child and small scar type marks on her forehead and the child informed them these had been done on previous occasions of assault.
The police contacted an interpreter and obtained a statement from the victim, (MM). It is this statement that MM says is not accurate because the interpreter did not understand her.
The statement says that when the children started to argue the accused (GMEM) grabbed all three children lined them up on the bed and hit the children around their head, legs and back. The victim then stepped in front of the accused to stop him hitting the children, asking why he always hit them like this. He grabbed the victim by the hair and dragged her to a nearby bedroom and proceeded to hit her around the legs and back area. The victim managed to break free and climbed out a window onto a balcony. She was screaming loudly and the neighbours came to check on her. The accused then left in his vehicle.
The statement says the victim said that during the assault the accused made reference to his friend who had killed his wife by setting her alight. He said all Sudanese women who don’t listen or understand should be burnt like his friend’s wife. He said ‘I should burn you and the children, all three of them’. It says the children are scared and the victim believes the accused is capable of carrying out his threat.
A police fact sheet was prepared on 29 January 2010. It says that about 9.40am on the 28 January 2010 (sic) police were at the victim’s home when the accused returned home and was subsequently arrested and cautioned. He said to police ‘In my country we can do this to women. If they don’t do what they are told we get another woman’.
On 16 March 2010 MM attended the Warilla Police Station and gave a further statement. By this time she had given birth to her fourth child. She said at paragraph 34
He just hit me once, he did not injure me. Because when that problem happened. I was cooking and I had that stick, when I went to him he thought I was going to hit him.
At paragraph 36 she said
Yes, there were marks on my legs and he did hit her (the oldest daughter) but there were no marks on her legs. I even had that mark because I had fluid retention from my pregnancy so the least nick leaves a mark. That time I was very upset from him, my pregnancy upset, nervous.
When asked about the threats to burn her and the children, she said at paragraph 42
42. No, that was my thought. I was thinking that in my head.
43 So GMEM did not say this to you?
44 No no. GMEM, he loves me and his children and as I said I was very upset from him on that day.
45 Were the children scared when GMEM was hitting them?
46 No they were not scared. My son and (daughter) love him very much because he buy them everything. Maybe I was in a situation of upset, maybe I said something not good to him as well.
When asked about jumping through the window she responded
I like to jump from the window.
I was not scared of him but I didn’t want to see his face at all.
There are statements from the police officers detailing what occurred and their impressions on the night. The police notebooks were also available. At page 58-59 of the notebook of Senior Constable Clements it is written MM told her
from the beginning of my marriage he started hitting me. I had a baby 5-6 months and he started hitting the baby. He said “I’m going to kill this baby. People had to pull him off the baby”.
Notes were available from South Eastern Sydney Illawarra Health. They detail an attendance by MM and her three children on 29 January 2010. The interview and examination of MM was conducted with the assistance of a telephone interpreter. The notes concerning MM report
Right leg, Linear bruise to calf. Left leg 3x Linear bruises to calf area. Soft tissue injuries.
Each of the three children was examined and no visible injuries were found.
The Health notes indicate referrals were made to the Child Wellbeing Unit who advised they found an open case with Community Services Shellharbour. On one of the children’s files it was written
SW reported concerns about lack of insight pt’s mother appears to have into impact of DV.
Discussion of Evidence and Decision
On the evidence provided by GMEM, he argues I should decide this is not an exceptional case and a positive notice should issue. There is one reported incidence of assault. It occurred four years ago. All the convictions and charges arose from this incident with the exception of the breach of an Apprehended Violence Order. There are no further reports of domestic violence. He and MM say there have been no further incidents.
GMEM spoke about his change in parenting behaviours, he now disciplines children by taking away their privileges. He has been studying hard to provide for his family. He is supported by his wife who says he is a good husband who hit her once only on one only occasion and she and the children are not afraid of him and he is very good to them. His witness spoke in a way that indicates she is welcome in his home, which suggests the family is not isolated.
While not minimising the impact of violence on a family, and this was a particularly extended and severe incident, I accept that an incident of assault would not necessarily of itself be sufficient to constitute an exceptional case. Consideration must be given to the circumstances at the present time.
However the concern to me on this occasion is the behaviour of GMEM and MM after this incident came to the attention of the police. It appears that once they appreciated the effects of this incident their evidence of what occurred changed.
GMEM maintains his position that there was one strike on MM. This is inconsistent with the statements of his wife and daughter on that day and the physical observations by the police officers attending and the hospital staff the next day. It is inconsistent with MM’s level of distress, which was so severe that, at nearly nine months pregnant, she climbed through a window screaming so loud the neighbours came to assist.
He denies making a statement, recorded contemporaneously in the police notebook, that in his country he is allowed to ‘do this to women’. He denies previous assaults, although Police officers observed scars consistent with previous assaults on the oldest child. The Health records indicate there was, at that time, an open case with Community Services Shellharbour. I do not have the documents from the Department.
MM retracted her statement made on the day of the incident and replaced it some weeks later with a completely inconsistent statement. The later statement does not adequately explain the physical evidence and events of the incident. I cannot accept she went through the window because she liked to jump through the window. In evidence she did not resile from her statement there had only been one event of domestic violence notwithstanding her statements to the police at the time, which describe frequent violence against herself and the children.
She also does not refer to the previous case with Community Services Shellharbour. Her assertion that the interpreter did not understand what she was saying does not explain the physical evidence or the statements of her daughter to the police at the time of the assault.
The Commissioner has submitted that I should place significantly more weight on the original statement provided to police than the later statements and the oral evidence at the hearing.
I do accept the evidence that indicates there has been a history of assault on both MM and the children over an extended period. I have taken this into account when considering whether GMEM would be able to take all steps necessary to protect and promote the well being of children.
However there is no evidence before me suggesting this behaviour has continued since February 2010. Indeed in his statement dated 25 February 2014 GMEM says
I would like to tell you that it was an isolated incident and never happened again
Without evidence I am not prepared to draw an inference that the behaviour of violence has continued.
GMEM has convictions for two counts of assault in 2010, which related to his wife and child. I find his behaviour did pose a threat to the safety and well being of children in 2010. However I need to be satisfied that now, in 2014, the risk, which existed in 2010, remains an unacceptable risk of harm and that this case should continue to be considered an exceptional case.
It is not enough to be satisfied the violence no longer occurs, I need to be satisfied GMEM has developed a shift in attitude such that he is now aware of his responsibilities and he no longer has entrenched views that his behaviour is acceptable. This shift in attitude is necessary for me to be satisfied that the violence that occurred will not be repeated in the future if a similar situation should arise. The past behaviour is the risk, the change in attitude would be a potential protective factor.[2]
[2]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
GMEM states those changes have occurred. He has not provided evidence of any counselling, of attending courses, or any professional assessment of his current attitudes which might assist me.
To form a view about whether those changes have occurred I have the oral evidence of GMEM and MM before me at the hearing. They continue to advance a version of the facts inconsistent with the independent evidence. This failure to accept any responsibility for the true circumstances means I cannot be satisfied that GMEM does understand the impact of violence, or has engaged in the cultural shift necessary to protect children into the future. He has simply denied there were unacceptable behaviours by minimising his actions and their impact. He continues to deny there was violence against his wife and children before the incident in 2010. The evidence of MM supports him in this.
I am left with the impression that now, in 2014, GMEM does not accept he has really done anything wrong. I therefore cannot find that the required change in attitude has occurred.
For this reason I have decided this remains an exceptional case and a positive notice should not issue.
I accept this has a negative impact on the ability of GMEM and MM to provide for their family in the manner they choose. My emphasis must be on the safety and wellbeing of children as the paramount consideration and any hardship or prejudice suffered by GMEM is irrelevant to this consideration.[3]
[3]AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248.
The Commissioner has sought an order under s 66 of the QCAT Act restricting publication of information, which may enable a person who has appeared before the tribunal to be identified. This application involves material about children who have been harmed by their parent.[4] I am satisfied this Order should be made over the whole of the decision.
[4]Child Protection Act 1999 s 189.
Accordingly, I Order
1. The decision of the Commissioner to issue GMEM with a negative notice is confirmed.
2. The application by the Commissioner for an order prohibiting publication of identifying material is granted.
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