GW v Chief Executive Officer, Public Safety Business Agency - [2015] QCAT 252

CITATION:

GW v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 252

PARTIES:	GW (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML211-14

MATTER TYPE:	Childrens matters
HEARING DATE:	20 April 2015

HEARD AT:

Hervey Bay

DECISION OF:

Member Rogers

DELIVERED ON:

9 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive to refuse to cancel a negative notice for GW is set aside.

2. The Chief Executive is to issue a positive notice and blue card to GW forthwith.

CATCHWORDS:

CHILDRENS MATTERS – Blue Card – review of decision to refuse to cancel a negative notice – where history of criminal assaults domestic violence and drug and alcohol abuse – whether case is exceptional

APPEARANCES:

APPLICANT:	GW
RESPONDENT:	Chief Executive Officer, Public Safety Business Agency by its advocate Mr Reid.

REASONS FOR DECISION

Mr GW was issued with a negative notice and refused a blue card on 22 September 2008 due to his criminal history from 2002 - 2007. He applied to have the negative notice cancelled and on 23 September 2014 a decision was made to refuse that application. He has now applied to this tribunal for a review of that decision.
Mr GW states he was involved for many years as a volunteer, coaching and mentoring his sons’ and other junior teams with National Rugby League in the local district. He wants to continue his involvement in this sport and is required to hold a blue card.
Mr GW’s evidence
Mr GW provided the tribunal with his Life Story. In it he states his parents were married for twelve years and he was the youngest of their three children. His father was a violent man who would beat his mother and the children. His mother developed a drug and alcohol problem and made repeated attempts to take her own life. Mr GW gives two examples of his childhood memories, one when he was 12 and watched his mother stab his father, the second when he was 14 and he had to help his mother and call emergency services after she took an overdose of pills and alcohol.
After his parents divorced his mother became involved in a number of abusive relationships with men. By this time his older siblings had moved out and it was just him and his Mum. He became an anxious and afraid child. He struggled at school but it was an important place for him because he felt safe. He finished year 10.
Because his mother’s new boyfriends would also abuse him he would go to his sister’s house. Her partner was a drug dealer and he started smoking marijuana at the age of 12. He went to live with her when he was 13-14. He said he started using marijuana on weekends but by the time he was 16 he was smoking for breakfast, lunch and tea.
Mr GW became estranged from his mum and dad. He reconciled with his mum after…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GW v Chief Executive Officer, Public Safety Business Agency

Details

AGLC: GW v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 252
Case: [2015] QCAT 252
Decision Date: 9 June 2015

CaseChat Overview and Summary

In the case of GW v Chief Executive Officer, Public Safety Business Agency, the applicant sought review of a decision to refuse to cancel a negative notice, which prevented him from holding a blue card necessary for his role as a volunteer coach for a junior rugby league team. The applicant, Mr GW, argued that he should be issued a positive notice due to his history of criminal assaults, domestic violence, and drug and alcohol abuse. The court had to determine whether the applicant's case was exceptional and warranted a positive notice.

The key legal issues involved assessing the applicant's history of violence and substance abuse against his current circumstances, including his remorse, support system, and commitment to his family. The court needed to decide whether these protective factors outweighed the risk factors, particularly the seriousness of his past criminal activities and the potential impact on children.

The court found that while Mr GW's history of violence, criminal charges, and substance abuse was severe and could not be ignored, the applicant had shown significant personal growth. He had a supportive family, stable employment, and had been drug-free for an extended period. He had engaged in anger management counselling and demonstrated remorse for his past actions. The court concluded that the protective factors present in Mr GW's life were sufficient to warrant a positive notice. The applicant's commitment to his children and his community, along with his efforts to address his past issues, indicated that he was a changed man and that it would be in the best interests of children for him to hold a blue card.

The court ordered that the Chief Executive's decision to refuse to cancel the negative notice be set aside, and that a positive notice and blue card be issued to Mr GW forthwith.

Orders

Orders of the court

1. The decision of the Chief Executive to refuse to cancel a negative notice for GW is set aside.

2. The Chief Executive is to issue a positive notice and blue card to GW forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr GW states he was involved for many years as a volunteer, coaching and mentoring his sons’ and other junior teams with National Rugby League in the local district. He wants to continue his involvement in this sport and is required to hold a blue card. Mr GW’s evidence Mr GW provided the tribunal with his Life Story. In it he states his parents were married for twelve years and he was the youngest of their three children. His father was a violent man who would beat his mother and the children. His mother developed a drug and alcohol problem and made repeated attempts to take her own life. Mr GW gives two examples of his childhood memories, one when he was 12 and watched his mother stab his father, the second when he was 14 and he had to help his mother and call emergency services after she took an overdose of pills and alcohol. After his parents divorced his mother became involved in a number of abusive relationships with men. By this time his older siblings had moved out and it was just him and his Mum. He became an anxious and afraid child. He struggled at school but it was an important place for him because he felt safe. He finished year 10. Because his mother’s new boyfriends would also abuse him he would go to his sister’s house. Her partner was a drug dealer and he started smoking marijuana at the age of 12. He went to live with her when he was 13-14. He said he started using marijuana on weekends but by the time he was 16 he was smoking for breakfast, lunch and tea. Mr GW became estranged from his mum and dad. He reconciled with his mum after he came off drugs and is now close to her and her partner. In about 1998, at age 21 Mr GW met his future partner. They have 5 children together, the oldest now 14. They were married in 2008. They have separated and reconciled on at least three occasions the last one being six years ago. When he was about 25 Mr GW became aware his father was dying of cancer and had no one to look after him. Although he had not seen him since he was 14 Mr GW Senior came to live with him and his partner. This was a difficult time for the family as he had just been released from prison and his partner was pregnant with their third child. They cared for his dad in the 18 months prior to his death and this was on opportunity to bond as father and son. Mr GW states he was devastated by the death of his father and went on a self destructive path to annihilate himself by binge drinking and consuming amphetamines and marijuana. He started to use amphetamines when he was 26 and used them for about two and a half years. He had moved to the community because he wanted a better life for his young boys but he got in with the wrong crowd. He used amphetamines because it made him feel happy. Mr GW was convicted of multiple assaults and breaches of domestic violence orders in 2004, 2005 and 2007. In 2002 there was a charge of wilful damage. No conviction was recorded and a fine was imposed. The 2004 charges were breach of order and serious assault x 3. They involved the use of a machete. A penalty of two years probation was imposed. In 2005 no evidence was offered on assault charges and a fine was imposed for a breach of an order. In 2007 he was convicted of a breach of order in an incident where he had armed himself with a knife which he stuck into a door. The penalty was a term of three months imprisonment, suspended for 18 months.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Any hardship or prejudice suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[3][3]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171 at 23.Consideration and decision I find Mr GW has the following protective factorsa) He has been in a relationship with his wife for 15-17 years and they have 5 children together. While this has not been without difficulties they are now committed and supportive of each other.b) They are building their first house and this is a project that involves the whole family.c) Mr GW is in stable work, having remained at the same job for eight years.d) He has support from family and the local community. Many members of his community have given references and spoken highly of his involvement in junior rugby league.e) He underwent anger management counselling which helped him recognise and confront issues from his childhood. He states he is now aware of the impact of violence on women and children. He has discussed his past behaviours with his sons.f) He has shown remorse and resolved to move forward with his life. He is proud of who he is today.g) He has been free from drugs and excessive alcohol use for an extended period, though his last cannabis use was 18 months ago.h) He no longer associates with people who are involved with drugs I find Mr GW has the following risk factors:a) Mr GW has a history of violence related criminal charges and convictions including an occasion where he used a machete and an occasion where the violence was in the presence of a child. b) He has a history of abuse of amphetamines, cannabis and alcohol.c) His amphetamine use commenced when he was 26 and cannot be attributed to youthd) In the past he has sought professional help for drug or alcohol use and then relapsed. e) His wife was not aware of the extent of his amphetamine use, which indicates a lack of frank communication.f) The 2012 incident, in which he chose to confront rather than retreat, indicates he still had anger management issues which had not been adequately addressed and he has not engaged in ongoing counselling to develop further strategies. I have decided this is not an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice. Mr GW’s history of violence in the presence of children, criminal assaults and drug taking is grave and cannot be minimised. However I have formed the view that he has developed an understanding of the cause of his behaviours. He has shown remorse. He is fully supported by his wife, who is prepared to challenge his behaviours. He has the support of family and the wider community. He has secure employment. He has not been secretive about his past and is prepared to talk to people and seek help when necessary. He is passionate about giving young children what support he can if they are finding things hard and sees sport as one way of doing that. He is totally committed to his children and providing a future for them.