JA v Commission for Children and Young People and Child Guardian - [2011] QCAT 429

CITATION:

JA v Commission for Children and Young People and Child Guardian [2011] QCAT 429

PARTIES:	JA
v
Commission for Children and Young People and Child Guardian

APPLICATION NUMBER:

CML188-10

MATTER TYPE:

Childrens matters

HEARING DATE:

22 July 2011

HEARD AT:

Regional City

DECISION OF:

Elizabeth Benson-Stott, Presiding Member
Patricia Hanly, Member

DELIVERED ON:

11 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] The decision of the Commissioner for Children and Young People and Child Guardian to cancel a positive notice and blue card for JA is set aside.

[2] The Commissioner forthwith issues a positive notice and blue card to JA.

[3] The Tribunal prohibits the publication of the name of the Applicant, the names of the Applicant’s children, and the names of the witnesses and of the organisation in the decision relating to application number CML188-10.

CATCHWORDS:

Whether applicant represents an unacceptable risk of harm to children – exceptional case – protective factors – risk factors – non-publication order

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	JA represented himself
RESPONDENT:	Commissioner for Children and Young People and Child Guardian represented by Geoff Woodberry

REASONS FOR DECISION

Background

Mr JA (known herein as the ‘Applicant’), is the Applicant in these proceedings.
The Applicant resides in Regional City in a house that is jointly owned with AA (is the estranged wife of the Applicant). The Applicant lives downstairs with his son C1, and his estranged wife lives upstairs with two other children, one of whom is a child of the relationship, and the other of whom is the Applicant’s stepchild. He has employment as a groundsman at a local school.
In accordance with reasons dated 20 October 2010, the Commissioner issued a negative notice.
The Applicant seeks a review of this decision and applied to the Tribunal on 16 November 2010.
The application was heard in Regional City on 22 July 2011.

The relevant law

The Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 outlines the options available to the Tribunal. These options are that the Tribunal may:
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the Commission for Children and Young People and Child Guardian Act 2000 (the Act). Section 19 of the QCAT Act provides:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
The Applicant’s criminal history or charges did not contain convictions for serious offences as defined under the Act. Under these circumstances the Commissioner must issue a positive notice unless satisfied that the Applicant’s is an exceptional case in which it would not be in the best interests of children for him to have a blue card. If this is so then the Commissioner must issue a negative notice. The relevant provisions are outlined below:-
221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1) Subject to subsection (2), the commissioner must issue a positive notice to the person if—
(a)the commissioner is not aware of any police information or disciplinary information about the person; or
(b)the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i)     investigative information;
(ii)     disciplinary information;
(iii)    a charge for an offence other than a disqualifying offence;
(iv)    a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
(c)the commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person.
Section 226 of the Act outlines the various factors that the Tribunal must take into account in deciding if the Applicant’s is an exceptional case.
The Act does not define what an exceptional case is. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated:
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”

The focus of the Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in the Act to have the same meaning given in section 9 of the Child Protection Act 1999.
The former Children Services Tribunal has previously endorsed principles from the Family Law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards.
In the former Children Services Tribunal matter of OAA re (2006) QCST 142 the Tribunal stated at paragraph 41 of its Reasons:
“The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.”
This Tribunal considers this as an appropriate approach. In effect, as another part of its review of the Commissioner’s decision, this Tribunal needs to consider whether the Applicant represents an unacceptable risk to children, in determining whether his is an exceptional case.
The Act in section 6 outlines principles for administering the Act, which includes the principle that the welfare and best interests of a child are paramount. Section 155 of the Act further provides that:
“the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”.
The Tribunal must have regard to these factors in determining this application.
The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities.

The undisputed relevant facts

The Applicant has a criminal record spanning the period from 1999 to 2003 including convictions for offences involving dangerous interference of a vehicle, breaching domestic violence orders, common assault, and assault occasioning bodily harm.
The Applicant’s domestic violence offences have involved his stepchildren and his own child. On at least four (4) occasions between the years 2000 and 2003, the Applicant physically and/or emotionally assaulted his child C2 (aged four (4) at time of offence) and stepchildren C3 (aged fourteen (14) and sixteen (16) at time of the offence) and C4 (age unknown at time of offence) following either conflict with AA and the children or his frustration with their behaviour.
The Department of Communities (Child Safety Services) has received a number of notifications regarding incidents involving the Applicant’s inappropriate behaviour to and in front of his stepchildren and child in the years 2000, 2002, and 2003 involving physical harm, emotional harm, and risk of neglect. On investigation, the Department has concluded that there was substantiated physical harm, emotional harm, and risk of neglect, but the immediate risk was assessed as low. There have not been continuing notifications up until 2011 which have not been substantiated nor have child protection concerns been identified.
The Applicant currently works in a school as a groundsman and requires a blue card to work during school hours. In his original application, in addition to requiring a blue card for his work, he was requiring a blue card to be a carer for his son C1 in C1’s school.
The Applicant lives in a double storey house which is wheelchair accessible downstairs. The property is jointly owned by the Applicant and AA. AA lives upstairs with his stepdaughter C4 (aged approximately fourteen (14) years) and daughter C2 (aged approximately twelve (12) years). His stepson C3 lives in a shed in the backyard. C1 his youngest child (aged approximately ten (10) years) lives downstairs with the Applicant. C1 has a disability which requires him to be fed on a Kangaroo pump and requires medication and full-time care. The Applicant is a carer for C1. Some nights C1 sleeps upstairs with his mother, but he is mainly cared for by the Applicant. The Applicant is able to lock the access between the upstairs and downstairs residences if need be.
The Applicant’s rehabilitation commenced in approximately 2004. The Applicant attended an anger management course for approximately an eight (8) to twelve (12) week group program, and then he attended individual counselling with Lifeline for a short period of time afterwards. He also attended Relationships Australia with his wife for marriage counselling. He has completed a parenting course, and ceased working in employment that required night shifts (the cause of his sleep deprivation to which he attributed his outbursts of anger).
The Applicant has not relapsed, that is, offended or had substantiated notifications made against him, since 2003.
The Applicant had a car accident in his childhood which resulted in reading and writing difficulties, and some memory difficulties. He has not been diagnosed with any neuropsychological condition.

Other evidence

In other evidence the Applicant advised the Tribunal that:
[26.1]He was hit by a car in his childhood and sustained memory difficulties after this. He has not had any assessments conducted to assess if there are neurological deficits, or had any diagnosis in relation to this. He has had a CT Scan a couple of years ago, and this was negative.
[26.2]He acknowledged he was a threat to children when he was working night shifts and had depression and sleep deprivation from this, but is no longer a threat;
[26.3]He acknowledged it was his fault for the behaviours toward the children and he has learnt strategies to help to deal with stress and conflict;
[26.4]He acknowledges that the children have suffered due to his previous actions;
[26.5]He has insight that it is not beneficial to the children to physically hit them, and that he has not done so since the conviction in 2003;
[26.6]He has learnt what harm is to children, and in an instance where his stepson C3 assaulted his daughter C4, he contacted police who came out and interviewed his daughter;
[26.7]He has developed strategies to minimise becoming angry and dealing with situations that have conflict. He has learnt to think before he does anything and/or calm himself down and/or walk away if he becomes angry and/or leave the house and stay away and/or counting to ten (10) and/or doing some activity to distract self and/or call a friend;
[26.8]He stays away from the house as much as possible on weekends so as to minimise any conflict with AA;
[26.9]He has a list of people he can talk to if he becomes stressed including friends, general practitioner, and support organisations;
[26.10]If the Applicant’s son C1 was not there for him to care for, he stated he was unsure how he would cope or what strategies he would put into place but he would ask for help;
[26.11]He has been married three (3) times with a child from one of the marriages, and stated that notifications regarding concerns with children have only occurred during the course of the current marriage with AA;
[26.12]He has been influenced by AA in the past, by agreeing to charges; by signing papers that AA gave him to sign without knowing or understanding the contents; and by agreeing to do everything AA asked him to do. However he has learnt strategies to avoid being so easily influenced such as asking a friend to help him read through materials, and by not agreeing to everything asked of him by AA.
TV, Senior Practitioner from the Department of Communities gave evidence to the Tribunal noting:
[27.1]There was a pattern of the notifier to the Department seeking assistance but not following through with recommendations;
[27.2]There has been no recorded substantiated risk since 2003;
[27.3]The Department’s position is that there is no further action or involvement required.
ST, from Day Care gave evidence to the Tribunal stating:
[28.1]She has known the Applicant since 1997;
[28.2]The Applicant is well liked within the community and people have respect for him;
[28.3]The Applicant has been observed to have the best interests of his own children and other children at heart;
[28.4]The Applicant has not been seen becoming frustrated with people;
[28.5]The Applicant can be vulnerable, however he would never place a child at risk and would be protective of children;
[28.6]At the time of the Applicant’s offences between 2000 and 2003, AA had her ex-husband living in the home and would flaunt the closeness of that relationship in front of the Applicant. AA’s son (the Applicant’s stepson) was also living in the house, was involved in substance abuse and was very abusive towards the Applicant, which was not checked by AA;
[28.7]In regards to the Department of Communities notifications, AA would have instigated those as she derives pleasure from trying to get the Applicant into trouble, she constantly telephones the Applicant wherever he is, she constantly accuses him of having an affair, and tries to argue with the Applicant;
[28.8]She has only observed AA treat the children roughly and hit them;
[28.9]The Applicant has been victimised over the years by AA but has handled the situation calmly;
[28.10]In times of stress and conflict, the Applicant would handle the situation calmly and has learnt to adapt;
[28.11]Prior to the Applicant meeting his current wife he had no convictions.
RC, friend of the Applicant, gave evidence to the Tribunal stating:
[29.1]She has known the Applicant since 1995;
[29.2]The Applicant is capable of being protective to children and has demonstrated that on many occasions with his own children and other children;
[29.3]The Applicant has not been observed over the years using bad language, using sexual connotations, or being abusive toward the children;
[29.4]With regard to the Department of Communities notifications, AA would have instigated those as she is extremely reactive, constantly telephones the Applicant wherever he is, constantly accuses him of having an affair, and tries to argue with the Applicant;
[29.5]The Applicant handles the conflict with AA who is his estranged wife of the Applicant exceptionally well as she often tries to argue with the Applicant;
[29.6]The Applicant does not become reactive in situations and has handled the stressful and conflict situations exceptionally well over the years.
MD, Principal of School and current employer of the Applicant, gave evidence to the Tribunal stating:
[30.1]She has known the Applicant for approximately four (4) years;
[30.2]The Applicant should obtain a blue card and she continues to stand by her reference;
[30.3]The Applicant has showed integrity in the way in which he handles difficult situations. She considers him to be a gentleman and a hard worker;
[30.4]The Applicant handles stressful and conflict situations exceptionally well;
[30.5]The Applicant has been observed by a number of employees of the school being provoked at the school by AA and her male friend whereby the male friend would ‘smirk’ at the Applicant and throw looks at him, whilst AA acts provocatively toward her male friend. The Applicant handles this situation effectively through remaining calm in his interactions with AA and ensuring he does not say anything harmful;
[30.6]The Applicant’s son C1 was removed from the school not due to the Applicant but due to AA’s decision. The incident that provoked this was that the school was at a Retirement Village undertaking a program and as this program was closing down, AA attacked MD verbally whilst she was talking to two (2) seniors. MD asked her to come back to the school to discuss any issues as it was not appropriate for that type of abuse and aggressive behaviour to occur in front of children and others. As MD and AA were walking back to the school with C1 and other children, AA ran at MD and she feared for her life due to AA’s aggressiveness. AA was swearing and yelling abuse as she believed that C1 had been left alone during this program. No matter how much AA was reassured that he was not, she continued to be extremely abusive towards MD, and MD feared for C1.
[30.7]The Applicant’s interactions with his child C1 are exceptional, and C1 is happy when he sees his father;
[30.8]The Applicant can be personally vulnerable however he would never place a child at risk and would be protective of children.
AA, estranged wife of the Applicant, gave evidence to the Tribunal stating:
[31.1]There is daily verbal violence and disharmony between the Applicant and herself that they both instigate;
[31.2]The Applicant brings his frustrations home and takes it out on people at home by yelling;
[31.3]The Applicant poses a risk to her;
[31.4]It is been a very long time since she has seen the Applicant become angry with his children;
[31.5]She has not seen the Applicant hit any other child;
[31.6]The Applicant is exceptional with other children;
[31.7]The Applicant learnt strategies from Lifeline and conflict has decreased since this. He learnt to walk away from situations and to remain calm;
[31.8]She smacks her children and ‘lashes out at them’, however the Applicant informs her that she cannot do that as it is abuse and intervenes. The Applicant did call the police when C3 assaulted one of the other children. She said however even though the Applicant intervenes she will do what she needs to with her own children;
[31.9]The Applicant would not be a risk to children of Queensland as he has not harmed a child since 2003, but he would be a risk to her;
[31.10]The Applicant is not a sexual predator;
[31.11]The Applicant is able to walk away from conflict;
[31.12]The Applicant has a problem with saying no to people;
[31.13]The Applicant had an assessment in approximately 1997 that said he had a reading level of about that of a nine (9) year old;
[31.14]There is a lot of information that she has told the Department, and that is in the Department of Communities documents that are wrong and needs correcting.

The Commissioner’s submissions

Mr Woodberry, on behalf of the Commissioner, argued that a non publication order should be made. He submitted that it is likely that the children of AA could be identified or traced in respect of any of the information before the Tribunal including the reasons for decision.
The Commissioner provided written and oral submissions which are summarised below. The Commissioner also relied on written reasons for the decision.
Whilst commending the Applicant for making the efforts he has made thus far, Mr Woodberry stated that he felt that the Applicant was not at the stage yet where it would be appropriate for him to receive a blue card, however with the passage of time and being placed in situations where he could be tested so that the Tribunal could be more satisfied, he might be eligible perhaps at a future stage. Mr Woodberry submitted there were risk factors regarding the Applicant which the Tribunal needed to consider which were:
[34.1]There is a history of Department of Communities notifications up until 2009;
[34.2]He has not been placed in a situation where he has been faced with a level of conflict where he might be tested in a practical sense;
[34.3]There is ongoing tension and stress at home to both him and AA and there is the strong potential for the children to be emotionally harmed however he is not being protective toward the children because he removes himself from the situation;
[34.4]He is easily led and he might be led into a situation of inadvertently placing a child in a risky situation.
Mr Woodberry submitted the following with regard to the Applicant:
[35.1]The Applicant still presents a significant risk, notwithstanding the glowing evidence that was heard from the witnesses about his capacity with children, in that subsequent to his going to the Lifeline counselling and undertaking the anger management course, he has not been placed in a situation where he has been faced with that level of conflict where he might be tempted to lash out and as a consequence he has not been tested. He knows the theory but he has not been tested in a practical sense;
[35.2]There was an inference in AA’s evidence that she said he takes his frustrations out at home. Children witnessing domestic violence or domestic conflict can be harmed by that and of course it depends on the weight to which the Tribunal places on the particular evidence concerned as to whether it is significant in the Tribunal’s mind;
[35.3]The difficulty is in relation to anger management – he has learnt a habit and that habit is lashing out – and that is a very difficult habit to break. It is one thing to know the theory and it is another thing to be tested and put that learning into operation so that it becomes second nature. He has not been tested, the counselling occurred a while ago back in about 2004, and that is seven years ago and the Tribunal might be left in some doubt as to whether if the Applicant were faced with some level of conflict particularly if his son C1 was not around he might revert to form/habit rather than apply the theory;
[35.4]He has a habit of removing himself from stressful situations, for which he needs to be commended, but he hasn’t been in the situation where he has really been tested. He indicated that if his son C1 were not around he does not really know how he would react or what he would do. It might be at some stage that C1 might not be around and if the Applicant is placed in a situation of stress he might react to the detriment of those children and thereby cause them harm;
[35.5]It is clear that there is ongoing tension and stress at home to both him and AA and there is the strong potential for the children to be emotionally harmed from witnessing ongoing dispute. In relation to the general aspect of being protective towards these (his) children, his thoughts, on his own evidence, are of himself and not in terms of being protective toward the children because he removes himself from a situation;
[35.6]There is evidence that he is easily led. It is conceivable that because he is easily led he might be led into a situation of inadvertently perhaps placing a child in a risky situation;
[35.7]It is to be noted that his son C1 is no longer at the Christian school and the requirement for the blue card is less than it was. There is no evidence that the Applicant needs a blue card to help C1 at his new school;
[35.8]On this basis the decision of the Commissioner ought to be affirmed.

The Applicant’s submissions

The Applicant submitted that he has learnt from his mistakes, and is moving toward his future where he is growing and continuing to learn.
He hoped that the Tribunal would take into account his commitment and determination to rehabilitate himself and that he has not offended since 2003.
He agreed that the welfare of children was paramount, submitted he has applied protective principles with his children through calling the police, sitting the children down and trying to calm them down, helping them to make phone calls to support organisations, helping them obtain strategies with conflict management, and that he wants to help children not harm them.
The Applicant acknowledged that his behaviour in the past has been less than desirable and there is proof he is able now to deal with conflict situations appropriately.
The Applicant stated that a number of allegations that had been reported against him between the years of 1997 and 2004 were fabrications, and he has learnt his lesson to ‘never again agree unless it actually happened’. The Applicant admitted to hitting his daughter and said that he had learnt from this and has not hit any child since. The Applicant further stated that he was remorseful for those actions and he had undertaken parenting training, marriage counselling, and an anger management course to help with developing appropriate strategies to work through stresses and conflict. The Applicant stated he is aware that violence is never the answer to situations of conflict.
The Applicant stated that he is able now to handle conflict and stressful situations as there are difficulties at home that he works through thereby preventing them from escalating out-of-control.
The Applicant stated that he was remorseful for his behaviour and that there was no excuse for his behaviour toward his children even though it was a period of time in his life when he was under considerable stress.
The Applicant acknowledged that he would like to continue to obtain counselling, to learn more strategies and obtain more skills to help at home with the conflict.

The Tribunal’s view

The Tribunal has very carefully considered the oral and written material before it. The Tribunal has also carefully considered the Commissioner’s reasons for decision dated 20 October 2010.
In doing so the Tribunal identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
Potential protective factors are:
[46.1]The Applicant has a strong work ethic and is currently employed;
[46.2]The narrow time frame of the offending behaviour;
[46.3]The Applicant has shown insight and is remorseful for past activities;
[46.4]The Applicant accepts responsibility for his past behaviours;
[46.5]The Applicant’s admissions to police and to the Department that his actions may have been excessive, and that his use of force as a form of discipline or conflict resolution was not reasonable under the circumstances;
[46.6]The Applicant has demonstrated an ability to refrain from becoming angry toward his children in recent times;
[46.7]The Applicant has demonstrated protective action in relation to his children through attempting to remove them from a conflict situation, calling police when an assault occurred, and helping the children to make phone calls or contact support when they are feeling stressed;
[46.8]The Applicant has successfully cared for his youngest child who has a disability and high care needs which demonstrates capacity to manage emotions and reactions;
[46.9]The Applicant engaged a Counsellor and undertook a range of courses such as anger management and Triple P;
[46.10]The Applicant has demonstrated strategies to deal with anger, conflict, and stress;
[46.11]The Applicant demonstrated that he is capable of applying strategies when confronted with conflict from AA in circumstances in which it is considered necessary to impose discipline on children;
[46.12]The Applicant has strong positive relationships with community members;
[46.13]The Applicant is tested regularly in his daily life with stressful situations and conflict situations surrounding AA and has not been reactive in these situations since 2003;
[46.14]The Applicant has addressed the triggers which led to his offending to the extent he is now capable of exercising proper judgement and restraint when faced with conflict or in circumstances in which discipline of children is required.
Other matters in the Applicant’s favour are:
[47.1]A strong desire to put past behind and build better life for himself and his children;
[47.2]The Department of Child Safety did not find any of the children in need of protection and did not remove them;
[47.3]No matters were referred to SCAN.
Potential risk factors are:
[48.1]There is no current independent and/or expert evidence produced that the Applicant has developed adequate and effective anger management techniques and strategies;
[48.2]The Applicant has been in counselling for a short period of time, and only attended one group anger management course;
[48.3]Little stability in family life, except for caring for C1.
[48.4]Ongoing tension and stress at home to both him and AA.

Section 226 of the Act

The Tribunal must also take into account matters listed in this section of the Act in deciding whether or not there is an exceptional case.
The Tribunal notes that none of the Applicant’s offences is categorised as a serious offence under the Act. There have been convictions for dangerous interference of a vehicle, breaching domestic violence orders, common assault, and assault occasioning bodily harm.
The offences occurred between February 1999 and October 2003.
In relation to the nature of the offences and its relevance to employment involving children, the Tribunal notes that a domestic violence order was taken out against the applicant in 1999 and 2001 in relation to his two stepchildren and child. There was a breach of this order in the year 2000 and 2003, whereby the applicant engaged in aggressive behaviour towards his stepson, physical behaviour toward his stepdaughter, and physical behaviour toward his daughter. This is commented upon at length in the Commissioner’s statement of reason and submissions to the Tribunal as referred to earlier.
In relation to penalty, the Tribunal notes that the applicant had convictions recorded against these four (4) offences, and received either a fine or community service from the period of 2000 to 2003.
There is no information relating to the applicant’s mental health.
Finally the Tribunal is able to consider anything else relating to the commission or alleged commission of the offence which it reasonably considers relevant.
The Commissioner considered that the Applicant still presents a significant risk, as he has not been placed in a situation where he has been faced with a level of conflict where he might be tempted to lash out and as a consequence he has not been tested. The Tribunal does not accept the Commissioner’s submissions regarding the Applicant having not been tested with regard to handling conflict or stress. In the evidence at the hearing the Tribunal heard of a number of situations that the Applicant had been placed in that involved conflict and/or stress which he had handled capably. During these stressful and conflict situations the Tribunal heard that the Applicant had not reverted to form/habit but had applied strategies he had learnt at his anger management course and during his period of counselling;
The Commissioner considered that the Applicant might take his frustrations out at home, and the children might be witnessing domestic conflict which could cause them harm. The Tribunal accepts that if children are witnessing domestic conflict then this could cause child harm, however a recent Department of Communities investigation on 15 June 2011 which involved interviewing the children, found that the safety assessment was recorded as SAFE. In the Department’s interview with the Applicant’s daughter C2 and stepdaughter C4 and observation with his son C1, it was noted by the Department that:
[57.1]The children are of an age where they have some self protective ability, in that they can call the police or ambulance and are able to seek help from neighbours if required;
[57.2]The children stated they are feeling safe living in the family home and all three children showed no signs of anxiety or fear in the presence of the Applicant;
[57.3]The children did not report any significant impact from their parents living in such a way;
[57.4]The three children were observed in the presence of the Applicant and appeared comfortable and did not appear fearful of the Applicant;
[57.5]The parents act protectively by providing for the physical needs of the children with the provision of food, clothing and shelter;
[57.6]The Applicant has insight into how to protect his children despite the conflict with AA;
[57.7]The Applicant is a willing parent who is able to protect the children from harm;
[57.8]The children engaged cooperatively in the interview process;
[57.9]No harm indicators were checked as the children are safe in the family home;
[57.10]No immediate harms were identified where the children required intervention to be safe;
[57.11]The outcome was recorded as UNSUBSTANTIATED – child not in need of protection for all subject children.
The Commissioner considered that the Applicant might not be protective toward children because he removes himself from situations. The Tribunal considered the evidence of the Department of Communities and their final investigation which concluded that the Applicant has acted protectively by providing for the physical needs of the children, has insight into how to protect his children despite the conflict with AA, and is a willing parent who is able to protect the children from harm.
The Commissioner considered that the Applicant might be easily led and that because of this he might be led into a situation of placing a child in a risky situation. The Tribunal however accepted the evidence of the Family Day Care witness and the Principal witness who held the view that the Applicant is a law abiding person and would not be easily led into situations that would place children at harm.
The Tribunal does not accept the Commissioner’s submissions regarding the Applicant’s lack of insight into his behaviour. The Applicant clearly indicated remorse and concern over his behaviours. The Applicant acknowledged it was his fault for the behaviours toward the children and stated he has learnt strategies to help to deal with stress and conflict and he would continue to attend any form of counselling to ensure that he continued to have appropriate skills to help others.
The Tribunal noted his strong desire to make a better life for himself and his children.
The Applicant is to be commended for making the efforts he has made so far.
A major consideration for the Tribunal is has enough time elapsed since the Applicant began implementing the strategies which he learned from his counselling, his training and his support services? Can the Tribunal be satisfied he has turned the corner?
The Tribunal was satisfied that the Applicant has made significant changes in his life, and no longer poses an unacceptable risk of harm to children for the following reasons:
[64.1]The positive relationship he has with community members;
[64.2]The Principal’s evidence as to the Applicant’s commitment to protect his children, and his ability to handle stressful and conflict situations;
[64.3]His remorse for his past actions and insight into the impact of his behaviours on children;
[64.4]His acceptance of responsibility for past behaviours;
[64.5]His demonstrated ability to abstain from becoming angry toward his children and demonstrated protective factors toward his children;
[64.6]The persuasive evidence of the Principal who gave her evidence from a professional perspective;
[64.7]Vigorous questioning of the Applicant by Mr Woodberry at the hearing demonstrated the Applicant’s ability to remain calm, and answer searching questions in a straight forward manner, without becoming heightened or defensive in answering those questions;
[64.8]When AA was questioned during the hearing, the Applicant did not react defensively or aggressively;
[64.9]AA’s evidence that the Applicant would not be a risk to children of Queensland, as he has not harmed a child since 2003, but he would be a risk to her;
[64.10]The fact that AA continues to reside in the former family home notwithstanding her claimed apprehension of risk from the Applicant;
[64.11]AA’s admission that the Applicant intervenes when she hits the children;
[64.12]The Applicant has addressed the triggers which led to his offending to the extent he is now capable of exercising proper judgement and restraint when faced with conflict or in circumstances in which discipline of children is required.

Conclusion

The Tribunal is satisfied that the Applicant’s is not an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
The Tribunal is further satisfied that the Applicant does not represent an unacceptable risk of harm to children.
The Tribunal therefore orders that the Commissioner’s decision to cancel his positive notice and blue Card be set aside and that a positive notice and blue Card be issued forthwith.
The Tribunal further orders that any information before the Tribunal that could identify the applicant and his children should not be published.

Reasons for non-publication order

The Tribunal is satisfied that the publication of the name of the Applicant, the name of the Applicant’s children, the names of the witnesses, and the name of the organisations in this decision should be prohibited, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal is able to act under subsection (1) on the application of a party to the proceeding or on its own initiative. The Commissioner provided oral submissions at the hearing as to why a non-publication order should be made. The Applicant did not oppose this decision when discussed in the hearing.
Mr Woodberry, on behalf of the Commissioner, submitted that it is likely that the children of AA could be identified or traced in respect of any of the information before the Tribunal including the reasons for decision, and that based on these reasons, a non-publication order was being sought.
The principles of openness and accountability can still be achieved and maintained through a non-publication order. The public interest is served by permitting the public to access details of the blue card matters, the decisions made by the Tribunal, and the reasoning behind the decisions.
Non-publication in the present circumstance can clearly be justified on the basis that the Applicant is from a regional city, and identifying information such as organisations, children’s names, and witnesses, could clearly identify AA and the children which could cause harm to the children.

Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of name of the Applicant, the name of the Applicant’s children, the names of the witnesses, and the name of the organisations in this decision.The publication of this decision and the reasons will occur, albeit de-identified.