GP v Commissioner for Children and Young People

[2013] QCAT 324

CITATION: GP v Commission for Children and Young People [2013] QCAT 324

PARTIES:	GP
v
Commission for Children and Young People

APPLICATION NUMBER: CML146-12

MATTER TYPE: Childrens matters

HEARING DATE: 15 February 2013

HEARD AT: Cairns
Final submissions 8 March 2013

DECISION OF: Mr Peter Apel, Member
Ms Julie Ford, Member

DELIVERED ON: 16 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The Tribunal affirms the decision of the Commissioner made 1^st August 2012 to issue a negative notice to the Applicant.

2.     The Tribunal prohibits the publication of the applicant’s name, the names of the witnesses and organisations named in this decision and the identity of the Complainant in the criminal proceeds.

CATCHWORDS:

CHILDREN – BLUE CARD – EXCEPTIONAL CASE – where applicant has charge but no conviction – where child related sexual offence charge – whether case is exceptional – whether confidentiality order is required.

Commission for Children and Young People and Child Guardian Act 2000

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

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	GP represented himself.
RESPONDENT:	Commission for Children and Young People represented by Karen Alton.

REASONS FOR DECISION

Background

1. GP had been the holder of a Queensland Blue Card issued in late 2009.  That Card fell due for renewal in 2011 and GP applied for renewal.

2. In the course of enquiries, the Commissioner for Children and Young People and Child Guardian (“the Commissioner”) became aware that GP had been charged with two offences and had been convicted of one of those offences.

3. Under the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”) the assessment process prescribed for the Commission is, where there is conviction for an offence which is a serious offence, and a charge of a disqualifying offence that has been dealt with other than by a conviction, then a Positive notice is to issue unless the Commission is satisfied that it is an exceptional case in which it would not be in the best interest of children for a Positive Notice to issue.[1]

   [1] Sections 221(1)(c) and Section 221(2) of the Act.

4. The offence upon which GP had been convicted was a Traffic Offence (speeding less than 15km per hour over the speed limit) in October 2006.

5. The offence for which GP had been found not guilty was a charge of aggravated sexual assault – having sexual intercourse with a person over 10 and under 14 years of age.  That charge related to an offence alleged to have occurred in July 2003 and was dealt with by way of a Jury Trial in New South Wales conducted in 2008.  A not guilty verdict was delivered by the Jury at the conclusion of that Trial.

6. In GP’s case the speeding offence is not a serious nor disqualifying offence as defined in the Act. The Commissioner however, considered that the fact of the charge of the sexual offence (notwithstanding GP’s acquittal on that charge) was an exceptional case in which it would not be in the best interests of children for a Positive Notice and Blue Card issue.

7. GPs’ renewal application was refused by the Commission and GP has now applied to QCAT to review that decision.  GP has also made an application that details of his case and this hearing not be publicised, and the Tribunal has been asked to decide that question as well.

Tribunal Jurisdiction and Responsibility

1. The Queensland Civil and Administrative Tribunal (QCAT) is in the position of considering the matter afresh, and it may consider new evidence in doing so and it may, on consideration of the matter, affirm the original decision, amend the original decision or set that decision aside and substitute its own decision.[2]  The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children.  Further, that decision is guided by the right of children to be cared for in a way that they are protected from harm and promotes their well being.[3]

   [2]        Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24.

   [3] Sections 360 & 155 of the Act.

2. The question for this Tribunal is whether or not GPs’ past history is sufficient to be treated as an exceptional case where it is not in the best interests of children for a Positive Notice to issue.

What the Tribunal must consider in deciding an exceptional case

1. The object of the Act is to promote and protect the rights, interests and wellbeing of children in Queensland (Section 5). Chapter 8 of the Act requires that decisions must be made under the principle that the welfare and best interests of a child are paramount. The Tribunal is required to consider the matter upon the same principles as the Commissioner.

2. The standard of proof upon which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities.  In Commissioner for Children and Young People and Child Guardian -v- Maher & Anor [2004] QCA 492 (“Maher’s case”) the Queensland Court of Appeal at paragraph 30 adopted the submission that:-

   “The Tribunal was required to be satisfied on the 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”.

3. In Maher’s case the Queensland Court of Appeal endorsed the approach of identifying and balancing potential risk factors and potential protective factors when considering whether circumstances amounted to an exceptional case.

4. Risk factors may vary according to the view of the Assessor, but most particularly will vary according to the identified facts.  In considering risk in this context, the Tribunal is not concerned with what may be mere possibilities, but rather will require foundation in fact.  The Tribunal is looking at whether, in all the circumstances, there is a real and appreciable risk.  It does this as part of its consideration of whether an exceptional case exists.

5. The Act is not a statute intended to impose additional punishment on a person who has a criminal history.  Rather, it is intended to put “gates” around employment to protect children from harm.

6. The matters prescribed are not to be considered in isolation.  Section 226 also allows for decision makers to consider anything else relating to the omission, or alleged commission of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person.

7. The term “exceptional case” is not defined by the Act, and case law has considered it to be a matter of discretion.[4]

   [4]Re Imperial Chemical Industries Limited Patent [1983] VR 1; Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

8. The sexual offence with which the Applicant was charged in New South Wales contained the following allegations:-

   (a)That GP had struck up an online friendship with the Complainant in mid-2003.  GP was then in his thirties, and the Complainant was a 13 year old female.

   (b)That the Complainant and GP arranged to meet in person in July 2003.

   (c)When they met, the Complainant was given a drink by GP which “tasted funny” and he then took her to his residence where he gave her another drink.

   (d)GP touched the Complainant sexually, then took her clothes off, photographed her in her underwear, and then had intercourse with her against her wishes.

   (e)The Complainant stated that she was unable to push GP off her as she “felt funny”.

9. It is a matter of record that GP was not interviewed regarding the alleged offence until two years later (2005) and then once charged, the trial proceeded in 2008 (5 years after the alleged offence).  GP was found not guilty of the offence.

What GP had to say

1. GP gave lengthy evidence to the Tribunal at the hearing of his Application.  The salient points made by GP were:-

   (a)That when he struck up the online friendship with the Complainant, it was in a public chat room (not a dating site) and that the communication was purely social, without any sexual content or context whatsoever.

   (b)The online relationship continued for a long time, maybe for 6 months, and as he and the Complainant got to know each other the relationship progressed to private messaging, then texts and telephone calls.

   (c)In the course of their communications, it came up in conversation that they asked each other at various times whether they were in any relationship, however, those discussions only came up in the course of making conversation, and that there was no sexual overtone or element to their chat.  GP recalled that the Complainant had told him that she had a boyfriend.

   (d)The Complainant at all times represented herself as being 17 years of age.  GP said that he looked at her profile when he first started chatting with her and that is what the profile said.

   (e)At no times were any photos of each other exchanged between the Complainant and GP, and that when they were communicating on the online sites, they used nicknames, not their real names.

   (f)They eventually arranged to meet, and the alleged offence happened that day.

   (g)GP absolutely denies that –

   (i)    he gave the Complainant anything to drink at any time at all;

   (ii)   he took any photographs of the Complainant; and

   (iii)   he initiated the sexual contact.

   (h)GP indicated that on that day when he first saw the Complainant at the agreed meeting place, that she looked “old for her age” and that she was physically mature and in fact taller than he was.

   (i)That for that day he had planned a full day for them together involving having lunch together, and some tripping around various places in the Sydney suburbs, however, when he picked her up, she stated that she only had a few hours available to her, and that it was the Complainant that asked if they could go directly to his residence.

   (j)GP stated that he found the Complainant to be very forward and made it clear that she wanted physical relationship there and then.  GP stated he “had a bit of problem with that” but later commented “it’s not illegal, so why not?”  GP was adamant that it was the Complainant that initiated the sexual contact and inferred that he was an initially reluctant but nonetheless willing participant.

   (k)That after their sexual encounter, the Complainant then asked to be taken home, which GP did so immediately and stated that he offered to take her directly to her house and to go with her to meet her parents, however, the Complainant declined that offer.

   (l)After that day, there were a few phone calls between the Complainant and himself but the relationship petered out very quickly, and soon there was no further contact.

   (m)The first GP knew that the Complainant was not 17 years of age was when he was spoken to by the Police two years after the alleged incident.

   (n)GP defended the charge on the basis that he honestly believed the Complainant was 17 years of age.  GP was successful in this defence.

   (o)GP has put the whole incident behind him – he stated on numerous occasions words to the effect that he had been found not guilty and that was the end of the matter – he’d done nothing wrong.

   (p)GP met his (now) wife on a dating website in 2008 and they married in 2012.  GP’s wife is 19 years his Junior.

   (q)GP was very defensive of the age difference between himself and his wife, stating forcefully that age difference should never be a consideration in a relationship.

   (r)GP request for a Blue Card is to continue his volunteer work which can involve contact with children both at the Coast Guard (primarily) and also through his work with the Court Network.

What are the risk factors

1. The risk factors identified by the Tribunal are:-

   (a)That the Applicant has been charged (and noting was found not guilty on a defence of a mistake as to the Complainant’s age) with an offence involving sexual intercourse with a 13 year old girl when he was 32 years of age.

   (b)That the Applicant does not see as significant age difference as an impediment to an intimate personal relationship.

   (c)The Applicant has a predilection for relationships with females much younger than himself.

   (d)That the Applicant has availed himself of opportunistic sex when offered.

   (e)That there are no categories of Blue Card nor is it possible to restrict the grant of a Positive Notice to specified child related activities – a grant of a Positive Notice would be in place for a period of years and will allow the holder the ability to work with and have contact with children in situations which may not be contemplated now.

   (f)That there is a lack of insight on the Applicant’s part into the severity of the alleged offence in two respects, firstly, in his view that he was blameless in the circumstances of the offence as it was the Complainant who misled him about her age and initiated the sexual conduct; and secondly, in his fixation on the view that as he was found not guilty in a criminal Court, he had done nothing wrong.

What are the protective factors

1. The Tribunal identifies the following protective factors to be weighed against the risk factors:-

   (a)The Applicant has a very supportive family who have spoken highly of the Applicant’s level of responsibility and the trust they place in him, including their absolute trust in placing their young children under his care without any other supervision.

   (b)The Applicant is in a stable marriage relationship.

   (c)The Applicant has a history of full employment, and contribution to the community.

   (d)The Applicant has a history of having worked with children during the two years he held a Blue Card.

   (e)The Applicant has worked with children without incident through his time with the volunteer Coast Guard and also with the Court Network.

   (f)The Applicant is apparently an honest and genuine person, who gave candid evidence and was not self-serving in his responses to the Tribunal’s questions.

   (g)The Applicant has no other criminal history of any nature.

   (h)The Applicant’s witnesses (his sister, brother-in-law and his Coast Guard Commander) spoke very highly of his caring and responsible attitude and personal strengths.

The Tribunal’s Decision

1. The legislation emphasises that the approach of the Tribunal to determining whether an exceptional case exists is discretionary rather than prescriptive.

2. The Tribunal is not rehearing the criminal trial and accepts without question the find of the Criminal Court.  The allegations, defence and outcome of that trial does however, provide an essential factual backdrop and context against which the Tribunal’s evaluation of the risks and protective factors can be made.

3. In weighing up the risk and protective factors, the Tribunal is very mindful that GP was well supported by his witnesses.  They held the same view as he, that 17 year old young women are adults and should be treated as such regarding sexual behaviour and decision making.

4. The Tribunal was not satisfied that GP had insight into the gravity of his actions even if he had the honest belief that the young girl was 17 years old.  The charge is child related and involves a child sexual offence.  The Tribunal was not satisfied that GP appreciated his role in the events that led to him being charged.

5. A Blue Card is transferable.  The Tribunal was not satisfied that for GP to hold a Blue Card to work with children in any context was risk free.  It is the Tribunal’s view that a real and appreciable risk remains, given GP lack of insight and his evident reluctance to acknowledge his actions that compromised a young teenager.

6. The Tribunal is satisfied, on the balance of probabilities, that this is an exceptional case in which it is not in the best interests of children for a Positive Notice to issue.

Non-Publication Order

1. GP has applied to the Tribunal for a non-publication Order under Section 66 of the QCAT Act. The Commissioner opposed that Application.

2. The Tribunal is satisfied that the applicant’s name, the names of the witnesses and the organisations named in this decision, and also the identity of the Complainant in the criminal proceedings with which the Applicant had previously been charged, should be de-identified as it is contrary to the public interest.

3. The principles of openness and accountability can still be achieved and maintained.  The public interest is served by permitting the public to access details of Blue Card matters, the decisions made by the Tribunal, and the reasons behind those decisions.  The publication of this decision and the reasons will occur, albeit de-identified.

Order

1. The Tribunal affirms the decision of the Commissioner made 1^st August 2012 to issue a negative notice to the Applicant.

2. The Tribunal prohibits the publication of the applicant’s name, the names of the witnesses and organisations named in this decision and the identity of the Complainant in the criminal proceeds.