JQB v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 354
•26 June 2014
| CITATION: | JQB v Commissioner for Children and Young People and Child Guardian [2014] QCAT 354 |
| PARTIES: | JQB (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML194–13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 24 April 2014 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 26 June 2014 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue JQB with a negative notice is set aside. 2. The Commissioner for Children and Young People and Child Guardian is to issue a positive notice to JQB. 3. The Tribunal prohibits the publication of the names of the applicant, the applicant’s child and non-expert witnesses. |
| CATCHWORDS: | CHILDREN'S MATTERS – BLUE CARD – review of decision of Commissioner for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – where applicant committed an offence involving threatening violence and use of a firearm in the presence of his son – where the applicant has gained insight – whether the case is exceptional Child Protection Act 1999, s9 Commission for Young People v V (2002) 56 NSWLR 476 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | JQB |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Mr Craig Capper |
REASONS FOR DECISION
JQB was refused a blue card due to a criminal history which features a number of drug and violence related offences.
An offence involving threatening violence and use of a firearm was committed by JQB. This was done in the presence of his own son.
JQB was a volunteer at his son’s junior Rugby League football club.
Volunteers who work with children and young people must hold a blue card in certain situations. As a volunteer if you come into contact with children and young people in regulated employment[1] you must have a blue card, unless an exemption applies.
[1]Commission for Children and Young People and Child Guardian Act 2000 s 154.
JQB may not have been required to obtain a blue card to continue in this volunteer capacity, because his son was participating in a sporting activity conducted at the club. Nevertheless, JQB did make an application for a blue card.
An application for a blue card triggers a process of screening the individual[2] by reference to the criteria set out in the Commission for Children and Young People and Child Guardian Act 2000.
[2]Section 154 of the Commission for Children and Young People and Child Guardian Act 2000 introduces chapter 8 of the Act which states that the main purpose of the chapter is to ensure that persons employed in particular employment, or carrying on particular business, as prescribed under this Act undergo screening under this chapter.
JQB’s application went before the Acting Commissioner for Children and Young People and Child Guardian.
The Acting Commissioner was justifiably concerned. JQB did not provide the Acting Commissioner with any submissions or information to explain the situation, provide context or explain what protective factors, if any, had been put in place since the commission of the crime. In short, at first instance the Acting Commissioner was required to make a decision with some, but certainly not all, relevant material at his disposal.
JQB grew up in an environment where the heavy consumption of alcohol was the norm. His grandfather was a ‘full-blown alcoholic’[3] and his father was a very heavy drinker; as was his mother – and she worked in hotels. Growing up, JQB thought that the heavy consumption of alcohol was an entirely normal, acceptable and natural way to live. JQB consumed alcohol from a young age. At the hearing of matter he proffered evidence that he started to drink some alcohol from the age of about 6 years; this progressed through to his early teenage years when he was consuming beer on a regular basis; and by the time he was 16 years of age, JQB says he was consuming alcohol heavily.
[3]This was the evidence given by JQB at the hearing of the matter; adopting his words.
JQB was a lonely, angry person at a young age.
JQB left home at the age of 15 and kept company with people who were much older than himself. Those people spent a considerable period of their recreational time drinking; and JQB continued in this lifestyle, which involved substantial substance abuse.
At a young age JQB married but this did not curb the amount of alcohol he consumed. His life continued to revolve around the consumption of alcohol; he lost his friends and his substance-abuse problems adversely affected his ability to work and function appropriately. To use his words, JQB said ‘it wrecked my life’.
JQB acknowledged he came into contact with the law, primarily through drink-driving and in relation to the destruction of property, which he says was his own. His first marriage eventually came to an end. JQB says that he was not violent during that period of time.
JQB acknowledged to himself that something had to be done. He sought the help of his best friends but did not seek professional assistance. His best friends, A and U, taught him to open up, they were non-judgemental and he felt that he could fit speak freely to them. They assisted him on a regular basis through a form of counselling that worked well with JQB.
JQB owes much to his friends. They brought him back from a dark place.
By the age of 30 years JQB had changed his life; he met his second wife and made new friends. JQB became a father to his son; he had a new focus in life and a positive outlook.
JQB is now 42 years of age. JQB's son is now 10 years of age and is a keen rugby league football player. JQB loves to support his son and by all accounts is a very positive influence at a local junior rugby league club. A number of people associated with the club have come forward to assist the Tribunal and have spoken glowingly about JQB's positive involvement with the club and more particularly with the boys who play at the club; particularly those who play in his son’s team.
JQB has a very close bond with his son. He attested to the fact they go fishing, camping, participate in boxing and, of course, eagerly anticipate the time to be spent with each other in relation to football.
The basis for the decision by the Acting Commissioner to issue a negative notice to the applicant was primarily based upon the applicant’s criminal history.
JQB's criminal history is not enviable.
The criminal history of the applicant shows convictions for drug-related matters in 1989, 1990 and 2006. In real terms, the Tribunal is prepared to regard those matters as irrelevant.
The drug-related matter in 2006 was however supplemented with a conviction for possession of weapons. That puts it in a different category. The Tribunal must give consideration to the effect of a combined drug and weapons related conviction. However, importantly, I note from the criminal history that in relation to the weapon charge, when sentenced, a modest fine was imposed and no conviction was recorded. Notwithstanding a reasonably lengthy prior history, the presiding Magistrate chose not to record a conviction and that fact and the penalty imposed speaks to the level of criminality involved. The court brief (QP9) indicates that the weapons were inherited by the applicant from his father and were of sentimental value. I am prepared to accept that, given the penalty, the matters before the court in 2006 were of a low-level of criminality.
The Tribunal must then consider the criminal matters involving the applicant in 2011, when he was 39 years of age.
The convictions from 2 March 2011 for possession of weapons, possession or use of weapons under the influence of liquor and threatening violence involving the discharge of firearms and wilful damage are in a different and far more serious category. Clearly this was an early plea of guilty – JQB was sentenced 5 days after the crimes were committed. In relation to the charge of threatening violence, involving the discharge of the firearm, the Magistrate imposed a sentence of imprisonment for a period of 4 months to be suspended for an operational period of 2 years on 7 March 2011.
The court brief, prepared by police in relation to the applicant’s criminal activity on 2 March 2011, can be summarised as follows:
a) The applicant was 39 years of age at the time of the offences;
b) At approximately 9.07 pm on 2 March 2011, police were called to a domestic disturbance at the applicant’s house which he shared with his de facto partner (the complainant) and child;
c) When police arrived at the house they located the applicant who appeared to be intoxicated and smelt strongly of liquor;
d) The applicant was initially uncooperative with police;
e) It was established that the complainant and the child had left the house;
f) Police observed that some items of furniture had been overturned inside the house;
g) A short time later police located the complainant in another house nearby and she provided the following version of events:
(i)An hour earlier, she had been involved in a domestic violence incident with the applicant;
(ii)The applicant had smashed several items in the house because he was angry and the car was blocking the driveway. He threw her laptop outside causing it to smash. The applicant also smashed several other ornaments which were on the bedroom duchess, including the drawers;
(iii)While she was in the kitchen with their son preparing dinner, the applicant walked up the back stairs holding a rifle with his finger inside the trigger guard;
(iv)The complainant stated that when she saw the rifle she became so scared that she could not speak and her mouth went dry. She was not aware that the applicant owned a rifle and he did not have a weapons licence;
(v)Their son saw the rifle, yelled out in fright and burst into tears;
(vi)The applicant yelled at their son words to the effect of, ‘get in your fucking room and don't worry about it’;
(vii)The applicant had been drinking heavily that day and was affected by alcohol; and
(viii)She did not know if the applicant was going to shoot her.
The allegations were very serious and the actions of the applicant were witnessed by a child.
Although JQB did not agree with the specific allegations contained in the court brief, the Tribunal must rely upon information as is provided to it in this regard.
I respectfully adopt the wording of the learned Tribunal Members in the decision of FAA, Re [2006] QSCST 15 in the Childrens Services Tribunal where at paragraph [39] the following statement was made:
The Tribunal is mindful that in taking a conviction into account it must accept that decision on conviction as conclusive and not go behind it, seek to retry the charge leading to that conviction, or proceed on a basis inconsistent with that conviction. This conclusiveness also extends to the sentence imposed. The Tribunal should not proceed on a basis of questioning the sentence or on a basis inconsistent with that sentence.
In requesting the Tribunal review the decision, JQB is entitled to a merits review. The matter is determined afresh by the Tribunal.
Section 353 of the Commission for Children, Young People and Child Guardian Act 2000 provides for the definition of a reviewable decision. In the context of this case the decision is reviewable because that the Assistant Commissioner issued a negative notice to JQB.
The decision made by the Assistant Commissioner is now of no significance other than of historical value to note that his office did receive an application by JQB, came to a decision that this is an exceptional case and consequently issued a negative notice. The decision made by the Commissioner at first instance should have no bearing and does not have any bearing on the decision to be made by the Tribunal.
The applicant failed to file submissions at first instance, prior to the Acting Commissioner making a decision against him. The allegations against the accused typically found in the court brief prepared as part of the prosecution will not address the personal circumstances of the defendant within the context of the offending behaviour. For example, the offending behaviour may have occurred at a time when the defendant was homeless, suffering from mental health issues or other circumstances which were extraordinary.
Left with the material provided to him by the police, the Acting Commissioner came to the decision that the offending behaviour in 2011, in particular, was so grave and so recent that he had no choice but to deny JQB his blue card.
The offences were neither serious nor disqualifying offences as defined in the Commission for Children, Young People and Child Guardian Act 2000. Parliament has specifically declared what offences should be regarded as serious or disqualifying offences in the context of applications for a blue card. The offences committed by JQB in 2011 are not included in the stated category.
Therefore in this case, the law requires the Tribunal, given the nature of the convictions noted on his criminal history, to determine its review on the basis that the applicant is presumed to be eligible to obtain a blue card. That is the starting point in these proceedings.
The presumption can only be overturned if the Tribunal finds as a matter of law that this is an exceptional case for the person.
There are a number of matters that the Tribunal might consider when considering the relevance of an offence which is neither serious nor disqualifying (as defined) in the context of a blue card application. These include the following:
a) Was the offence of a serious nature?
b) What is the maximum and any minimum penalty prescribed for the offence?
c) Is this an instance of high level criminality?
d) Were children involved, and if so to what extent?
e) Were children exposed to the offending behaviour?
f) To what extent it is the applicant to blame for the offence?
g) What was the extent of damage or injury caused by the offending behaviour?
h) Was the offence recent?
i) Was the offending behaviour relevant?
j) Were there aggravating circumstances?
k) Were there any mitigating factors?
l) What penalty was imposed by the sentencing court?
m) Was a jail term imposed?
n) Did the court make any sentencing remarks which may be of relevance?
o) Was a conviction recorded?
p) What remorse was shown by the offender?
q) Was the offender suffering from a medical or psychiatric condition at the time of the offending behaviour?
r) Was the matter referred to the mental health court?
s) Did the court declare the offender to be a serious violent offender?
The Acting Commissioner came to the conclusion that this is indeed an exceptional case; thereby declaring JQB should not be the holder of a blue card.
The Tribunal received the material available to the Acting Commissioner; and then much more.
The Tribunal must have regard to all of the relevant material which was before the Acting Commissioner at the time it made its decision and any new material before the Tribunal in conducting the review and the Tribunal may consider relevant material not previously available to the Acting Commissioner[4].
[4]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 28(3).
The Tribunal heard from JQB himself and had the benefit of receiving evidence on behalf of JQB through various witnesses. The Tribunal also had the benefit of hearing from Mr Capper, Principal Legal Officer, representing the Acting Commissioner.
The Tribunal is indebted to Mr Capper for his assistance which was provided thoroughly, knowledgeably and professionally. When appearing before the Tribunal, Mr Capper does so not with the specific purpose of advancing the decision made by the Acting Commissioner but rather to assist the Tribunal in coming to the correct and preferable decision[5]. His role in these proceedings is dictated by the obligations imposed upon him pursuant to model litigant principles. The power of the State is to be used for the public good and in the public interest, and not as a means of oppression, even in litigation[6]. Pursuant to section 21 of the Queensland Civil and Administrative Tribunal Act 2009 in a proceedings for the review of a reviewable decision, the decision maker of the reviewable decision must use his or her best endeavours to help the Tribunal so that it can make its decision on the review.
[5]Ibid s 20.
[6]Queensland Government, Department of Justice and Attorney General, Model Litigant’s Principles.
In the course of his questioning, Mr Capper did lead evidence from all witnesses both positive and negative to the interests of the applicant, JQB.
The Tribunal must determine what risks there might be to children and to determine the likelihood of materialisation of those risks to children[7].
[7]Commission for Young People v V (2002) 56 NSWLR 476.
In simple terms, the decision to be made by the Tribunal is no more than determining an answer to the question "Is this an exceptional case?”.
Courts and Tribunals have not established any general rules with respect to what is an exceptional case[8]. Each case is determined on its merits. The Tribunal should not take a prescriptive approach. In Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 His Honour Justice Wilson said:
The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.
[8]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 per Philippides J.
The Tribunal is not to determine the question predicated on the basis that there is to be no risk. That is not the appropriate test.
The Tribunal is to make the correct and preferable decision based on all material available to it at the time of hearing.
The paramount consideration in making a decision is a child's entitlement to be cared for in a way that protects the child from harm and promotes the child's wellbeing[9].
[9]Section 155 of the Commission for Children and Young People and Child Guardian Act 2000.
Therefore, in making an assessment the Tribunal must give consideration to the protective factors which have been put in place by, or are relevant to, the Applicant[10].
[10]Section 6 of the Commission for Children and Young People and Child Guardian Act 2000 provides that the Act is to be administered under the principle that the welfare and best interests of the child are paramount. Section 6(2) of the Act states that the Act is also to be administered under a number of principles, one of which (s 6(c)(ii)) is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's well-being.
In considering the protective factors the Tribunal is mindful of the fact that a blue card is fully transferable. While it may be that JQB simply wants to possess a blue card so that he may be involved with his son’s football team, the reality is that as the holder of a blue card he can undertake other child related activities. The blue card is unconditional and will allow the holder to undertake things such as homestays, tutoring, kinship carer or other matters involving children.
The appropriate test for the Tribunal is to be determined by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child related activities.
The decision to be made by the Commissioner for Children and Young People and Child Guardian or on appeal by the Queensland Civil and Administrative Tribunal has nothing to do with issues involving double punishment. Indeed it has nothing to do with issues to deal with punishment at all. The sole focus, appropriately, for the decision maker, must be from the child's perspective.
The Tribunal must consider whether there are risks to children but importantly also consider whether those risks have been mitigated. The mere fact of offending behaviour does not of itself lead to a conclusion that the only appropriate outcome is to deny the applicant a blue card. There have been, quite rightly, instances where the Tribunal has seen fit to allow an applicant a blue card despite serious offending criminal behaviour[11].
[11]For example, in the case of W v Commission for Children and Young People and Child Guardian [2011] QCAT 431 the applicant was charged with and on most occasions convicted of a variety of assaults.
Conversely, the mere fact that a person has stopped previous criminal activity and changed direction in life is not of itself a fact which should influence the Tribunal. In Kent v Wilson [2000] VSC 98 at [29] per Hedigan J cited with authority in LAA, Re [2006] QCST 27 (27 July 2006) at [35]:
These are, to my judgment, merely changed circumstances. Not only are they not exceptional but, if not normal, at least commonplace. It cannot have been the legislative intention, nor is it the Act's reasonable construction, that an exceptional circumstance was one that with respect to the relevant offender amounted to no more than a change of lifestyle from abnormal to normal.
In coming to its decision, the Tribunal would often rely upon medical material, particularly relating to psychological or psychiatric content. In this case there is no psychiatric or psychological material upon which the Tribunal can rely. There is however a letter from a doctor which confirms that JQB was diagnosed with anxiety and with depression and has commenced a medication regime. The doctor attests to the fact that JQB has made significant progress since that time and is currently maintaining doses of the same medication. He concludes by saying that JQB’s emotional state is stable for now.
The doctor was not called to give evidence and as result little weight can be attributed to the material. The material is however consistent with the evidence that was put before the Tribunal hearing; to the effect that JQB has been taking his medication and his emotional state has improved as result. This evidence comprised of statements by JQB himself. He undertook the regime of medication as a result of an ultimatum by his wife. Irrespective of the reasons as to why he did, it does appear from his evidence that the move has been successful. His evidence is supported by the evidence of his wife.
The move by JQB to seek medical assistance and implement a restorative regime through medication may not have been instigated as a result of his insight but nevertheless it appears to have been effective.
The Tribunal may direct the Commissioner for Children and Young People and Child Guardian to issue a positive notice to an applicant for a blue card even if there is no specific psychological evidence put before it upon review.
JQB has relied heavily upon the good advice and guidance of his wife who encouraged him, emphatically, to seek out assistance. JQB also receives assistance, on an informal basis, from friends who provide counselling services to him. This informal counselling appears to be highly effective and beneficial to JQB.
JQB is now able to gain assistance when he needs it. He is now willing to reach out to a person and ask for help in appropriate circumstances.
The Tribunal acknowledges that it has only been three years since JQB committed serious offending behaviour. In this regard each case turns on its own facts. The passage of time in itself does not mean that the risk has been reduced[12]. The Tribunal must consider whether the applicant has changed his attitude, behaviours and undertaken remedial assistance during the passage of time, such that a reasonable conclusion might consequently be drawn that the risk has been reduced.
[12]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
The Tribunal accepts as a finding of fact that JQB's emotional state has improved to reach a stage of relative stability. It is dangerous to draw conclusions as to what may occur in the future, from a finding which is nothing more than a snapshot view of the perceived situation at the present time. However that is, of course, one of the inherent difficulties facing any tribunal purporting to undertake a merits review.
JQB has not been involved in offending behaviour since 2011 and this too lends support for his submission that his emotional state has stabilised.
JQB has shown good insight into the harm which he has caused as result of his actions. This can be regarded by the Tribunal as a protective factor[13].
[13]TAA Re [2006] QCST 11.
Mr Capper, advocate for the Commissioner for Children and Young People and Child Guardian, rightly made concession during the hearing that these matters might be regarded by the Tribunal as significant protective factors.
The Tribunal is satisfied that JQB would now manage the situation he was confronted with in 2011 differently. There is evidence of significant and exceptional changes to his life that does provide an assurance to the Tribunal that there is an unacceptable risk to children and young people. Albeit that I come to a contrary conclusion in this case, I apply the test laid out by the Queensland Civil and Administrative Tribunal appeal jurisdiction in the decision of Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87[14].
[14]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 at [67].
The risk factors demonstrated by the past conduct and personal profile of JQB no longer present an unacceptable risk to children and young people[15].
[15]I apply the test laid out by the Queensland Civil and Administrative Tribunal appeal jurisdiction in the decision of Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 at [66].
The Tribunal finds this is not an exceptional case. There is no reason to overturn the general presumption that the Commissioner should issue a positive notice.
The decision of the Commissioner for Children and Young People and Child Guardian to issue JQB with a negative notice is set aside.
The Commissioner for Children and Young People and Child Guardian is to issue a positive notice to JQB.
JQB did not seek a non-publication order. Nevertheless, the Tribunal may make such an order on its own initiative[16] if satisfied that it is necessary for any of the reasons specified in the Queensland Civil and Administrative Tribunal Act 2009 s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. A non-publication order should be made in this instance to protect the identity of JQB's son.
[16]JVG v Commissioner for Children and Young People and Child Guardian [2013] QCAT 12 at [87].
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