GW v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 252
•9 June 2015
| 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 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.
There are no charges specifically relating to drugs but Mr GW states ‘Between the years 2002-2007 these incidents occurred due to my addiction to drugs and alcohol’
He acknowledges he behaved disgracefully towards his partner and the children. He says he knows the children witnessed his angry and violent outbursts and recognises the harm this has caused them. He said ‘Kids carry the impact of domestic violence for a long time. They think that is the way to react.’ He said it also had a big impact on his partner, she didn’t know herself and became confused and upset. He hates himself for putting her through that but is lucky she stuck to him. He believes he would not be alive today without her support.
Discussing how he turned his life around, Mr GW says when he was in prison in 2004 he undertook an anger management course. Before that he saw himself as a victim and blamed others for all that went wrong with his life. The course helped him understand that much of his anger stemmed from his childhood experiences and that he had been taught by example that violence was an acceptable way to resolve issues.
He attended Alcoholics Anonymous meetings in 2006. He realised others had had a hard life and he couldn’t use this as an excuse. He became an active member in his local church and formed healthy relationships with a diverse range of people. In particular he nominated the Pastor and his wife as people who helped him. They are experienced in working with former drug users and gave him strategies to use to address his anxieties and behaviours.
Mr GW said he last used amphetamines in 2007. He last used cannabis about 18 months ago when with a couple of associates he now no longer sees. It made him feel bad and sleepy and he just wanted to go to bed. He felt guilty. He said while he will now drink a couple of stubbies of beer he never gets to a place where he is legless.
Mr GW has been employed as a labourer for the last nine years. He states he enjoys his work and works well with his colleagues and supervisor and that his workplace does random drug and alcohol testing which is brilliant.
He is in the process, with his wife, of building their first home together and enjoys the times they go to work on the block as a family.
He speaks with pride of his ‘five truly remarkable beautiful, accomplished and well adjusted children’ and the activities they do together.
For the past seven years he worked as a volunteer for National Rugby League coaching and mentoring junior teams. However since he was required to obtain a blue card and it was refused he is no longer able to help in this way and he has been maintaining the playing fields. He enjoyed working with the children. He said if a kid was going through a bit of trouble he would try to find the one thing they were good at and work from there to get confidence into the child.
Mr GW states he has become more aware of his issues. He has adopted strategies to deal with his anger, he no longer takes drugs of any kind and two years ago after a stroke he gave up cigarettes and embarked on a fitness programme. He admits he overreacted to the 2012 situation, which I will discuss shortly, and feels he let himself, his wife and his children down.
In addition to his history of violence discussed previously Mr GW has two more recent convictions. The first in 2010 was committing a public nuisance. No evidence was offered on a charge of wilful damage at the same time. He was so intoxicated he did not remember what had happened the next day. The second and final offence was on 31 December 2012 where he was convicted of failing to leave a licensed premises and being drunk or disorderly in a licensed premises. He pleaded guilty to this charge but claims it was a case of mistaken identity and that it was not him who was drunk and behaving badly, though he admits he was aggressive when being removed from the premises.
Witness’ evidence
In addition to many written references the following witnesses gave evidence at the hearing
Mr A is Mr GW’s father-in-law. He also works with him. He has known him for 14 years and is aware of the domestic violence and the effect it had on the family and Mr GW. He says the early years were hard to swallow. He has seen the changes that have taken place in Mr GW. He said the family have been living with him recently. They are trying to save money and Mr GW no longer abuses drugs or alcohol. He does not associate with any of his old friends. He takes responsibility for his children. He is a hard worker at his job and at the block where he is establishing the house. He is very enthusiastic about doing what he can to help with the kids sport.
Pastor gave evidence by phone. He has not seen Mr GW for two years. He conducted a marriage course the couple attended in 2008. During 2006-2009 he spent time with GW talking to him about many things. He believes most of his drug and alcohol issues related to his childhood. He has a passion to be a good role model as a father and doesn’t want others to experience what he has experienced.
B has known Mr GW for four years. She was a manager of a junior footy team he was coaching. All their dealings have been positive. She has seen him in a conflict situation when parents accused him of playing favourites. She said he didn’t react, just said he was trying to do his best. She was aware from the early years that he had served time in prison for issues with drugs and alcohol.
C has known Mr GW for three years. She knows that in the past he has had a bad temper, been violent with police, taken drugs and been to gaol. She has not seen him lose his temper. She was with the GWs on the night of the 2012 incident at the Boat Club but did not see what had occurred because she was with Mrs GW in the poker machine room. She said Mr GW had not been drinking before they went to the Boat Club and the incident occurred not long after they arrived, so he would not have been drunk. She has seen him involved in conflict when there were a group of people at her house. Another guest became excited and Mr GW just walked away. She said her children love Mr GW and he is passionate about kids. He picks them up on school holidays to go fishing.
D is a National Rugby League Development Officer. He said it is the QRL policy that there is no senior or junior QRL involvement without a blue card. Part of his role is to observe and mentor coaches and he used to see Mr GW every couple of weeks in this role when he was coaching. He was aware of his criminal history and that he had spent time in gaol. He knew he had been dependent on marijuana and speed and was able to talk to Mr GW about that. He said Mr GW’s interaction with children was positive and the kids respect him for the way he talks to them. He said under the code of conduct there is zero tolerance for drugs and if Mr GW had a relapse he would be dealt with by the League. The outcome would depend on the severity of the issue.
Mrs GW gave evidence. She has known Mr GW for over 15 years. She talked about the incidents of violence resulting in the convictions. She said he was using amphetamines for 4-5 months in 2004. After attending counselling he did not return to amphetamines. He would still binge drink occasionally. She thinks he gave up marijuana about two years ago. In preparation for their marriage in 2008 they attended a counselling course and then another in about 2009 about how to discuss things as adults. She said when an issue arises now they can sit down and talk it over. They don’t scream. She said the 2010 public nuisance charge occurred when they were separated. She said Mr GW has spoken to the boys, who are the two oldest children, about the domestic violence but they didn’t have any recollection of it. He no longer has any anger management issues. She believes the professional help he had was enough and he has sufficient strategies to not return to drug use or to resort to violence because he understands the consequences if he did.
The Chief Executive’s submissions
The Chief Executive submits that concerns still exist. Mr GW admits he last smoked cannabis 18 months ago. There is nothing to show there has been a recent attempt through counselling to ensure there is no relapse or a return to marijuana or alcohol abuse
It is submitted that limited weight should be given to the references or witnesses, as many were not aware that in 2012 Mr GW still had anger management issues that resulted in a criminal conviction. It is said he has not done enough to understand the triggers of his anger and thereby avoid future outbursts.
In the past Mr GW has sought professional help but has relapsed and there is nothing to suggest this will not happen again.
The violence in the past occurred in front of children. Mr GW was unable to curb his aggression with children in the vicinity. In two out of three instances he armed himself with a weapon and on one occasion he was under the influence of drugs.
Mrs GW had limited knowledge of Mr GW’s drug usage.
In relation to the 2012 conviction it is submitted that because he pleaded guilty the tribunal cannot go behind the conviction. The Chief Executive acknowledges that the evidence of C indicates he was not drunk at that time and there may have been a misunderstanding however goes on to say ‘this does not detract from the fact that the applicant’s reaction was totally inappropriate in the circumstances.’ He chose to confront he security staff rather than retreat. As a result he was ushered from the premises without being able to speak to his wife. In addition Mr GW was uncooperative and questioned the police evidence. He denied he was asked to leave the premises.
While Mr GW’s references indicate he has considerable experience in teaching children rugby league and is passionate about helping children in this sport the positive benefits to children that might result from issuing a blue card do not mitigate, to a sufficient degree the risk factors that have been identified.
Issuing a positive notice would mean Mr GW would be able to work in any child related employment or conduct any child related business regulated by the Act.
The legislation
Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000. The principles for administering the Act, set out in s 6, are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. S 360 restates that principle for the purposes of reviewing a child-related employment decision.
Where an applicant has been convicted of an offence, other than a disqualifying or serious offence as defined in the Act, a positive notice must issue unless it is 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.[1] Mr GW has been convicted of offences that do not meet the criteria of serious or disqualifying offences under the Act.
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[2] This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act. This can be done by considering the protective factors and the risk factors, which can be surmised from the facts.
[2]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Once a decision is made to issue a positive notice and blue card the holder is authorised to work with children in any work environment.
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 factors
a) 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 youth
d) 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.
In these circumstances I am of the opinion that Mr GW understands how much he has to lose should he return to drug or alcohol abuse or violence and therefore the risk of relapse is small. In addition the pride he now feels in his achievements makes it less likely he will have a need to resort to his previous behaviours. I cannot be satisfied that Mr GW poses a greater risk to children than other members of the community at large and that this is an exceptional case for the purposes of the legislation. Therefore I must issue a positive notice.
I order that Mr GW be issued with a positive notice and a blue card.
Non-publication order
I have formed the view a non-publication order is appropriate in this matter. Non-publication orders can only be made in specific situations. In this case the publication of information could lead to the identification of children and could affect their mental wellbeing. This order includes material held on the Tribunal file and the names of the applicant and family members.
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