Lane v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 49
| CITATION: | Lane v Commissioner for Children and Young People and Child Guardian [2014] QCAT 49 |
| PARTIES: | Mr Stephen John Lane (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML095-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 5 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Presiding Member Browne |
| DELIVERED ON: | 7 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 26 April 2013 to issue a negative notice to Stephen John Lane is set aside and the Commissioner for Children and Young People and Child Guardian is to issue a positive notice to Mr Lane. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where offences of physical aggression Commission for Children and Young People and Child Guardian Act 2000, ss 221, 226 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Stephen Lane, self represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Louisa Keown, Solicitor (in-house) |
REASONS FOR DECISION
Mr Lane requires a blue card to enable him to participate as a surf lifesaver on patrol on the beaches of the Sunshine Coast.
Mr Lane made an application to the Commission for Children and Young People and Child Guardian on 13 July 2012 for a blue card. The relevant legislation the Commission for Children and Child Young People and Child Guardian Act 2000 (the Commission Act) requires any person employed or carrying on a particular business, as prescribed under the Act, to “undergo screening”. This may include the Commissioner obtaining information from the Queensland Police Service (QPS) about the person applying for a blue card.
The Commissioner received information from the QPS including details of several offences concerning offending behaviour between 1992 and 2007, inclusive, being a period of approximately 15 years.
The QPS information showed that Mr Lane was found guilty in relation to 3 charges – 2 charges of assault occasioning bodily harm on 29 January 2005 and 29 May 2005; and 1 charge of dangerous operation of a motor vehicle on 7 January 2007. The remaining charges including 3 charges of dangerous operation of a motor vehicle, 1 charge of common assault, 1 charge of assault occasioning harm whilst in company, 16 charges of assault occasioning bodily harm and 1 charge of grievous bodily harm, were either discontinued or Mr Lane was found not guilty of the offence.
Mr Lane was given an opportunity to respond to the material obtained by the Commissioner in relation to the offending behaviour. The Commissioner, after reassessing Mr Lane’s eligibility to hold a blue card, determined on 26 April 2013 to refuse Mr Lane’s application for a blue card and issued a negative notice accordingly. Mr Lane received the Commissioner’s decision on 29 April 2013.
Mr Lane seeks a review of the decision made by the Commissioner. He relies on his statements being a response to the Commissioner’s reasons for decision and his life story; statements and evidence given at the hearing from his current partner, Cara de Ryk. Mr Lane also relies on statements and evidence given by telephone at the hearing by his friends, Claudia Fortin and Alice Sweetman. Mr Lane’s daughter, Stephanie Lane aged 21 years, also gave evidence by telephone at the hearing.
Mr Lane also relies on a report prepared by Luke Hatzipetrou, psychologist, dated 28 May 2011, prepared for the purposes of the criminal proceedings; and other statements prepared by friends who, including Mr Hatzipetrou, were not available to give evidence at the hearing.
Mr Lane gave evidence at the hearing and was given an opportunity to respond to questions asked about his offending behaviour.
Mr Lane concedes that he did not provide all of the material to the Commissioner relevant to his application for a blue card including information relating to the offending behaviour. Ms Keown representing the Commissioner at the hearing also acknowledges that there is material now before the Tribunal that was not available to the Commissioner at the time it made its decision.
The offending behaviour relevant to the issuing of a negative notice by the Commissioner was not a “serious offence” so it was necessary for the Commissioner, for the purposes for s 221 of the Commission Act, to determine whether this was an “exceptional case” in that it would not be in the best interests of children for the Commissioner to issue a positive notice.[1]
[1] Commission for Children and Young People and Child Guardian Act 2000 s 221.
Mr Lane’s offending behaviour relates to conduct that took place over approximately 15 years during his marriage to his ex-wife. There is evidence before the Tribunal to suggest that the offending behaviour took place in the context of a volatile and emotional relationship and the allegations relating to the offending behaviour were made by Mr Lane’s ex-wife after their relationship ended in May 2005.
The Tribunal, for the purposes of the review, cannot go behind the circumstances of the offending behaviour. Mr Lane was found guilty by a jury and was sentenced by His Honour Judge Reid in the District Court, Brisbane on 31 May 2011.
The Tribunal is assisted by the sentencing Judge’s remarks in relation to the offending behaviour. His Honour Judge Reid gave a summary of the circumstances in which the offending behaviour took place. In relation to the charge of assault occasioning bodily harm on 7 January 2007, Judge Reid stated:
I do not, however, accept that the complainant’s full description of the nature of these assaults and of her description of the fact of protracted domestic violence throughout the marriage was factually correct.[2]
[2]Section 21 material, transcript of proceedings, State Reporting Bureau, 31 May 2011, p 34.
In relation to the offending behaviour on 7 January 2007, the complainant (Mr Lane’s ex-wife) alleged that Mr Lane punched her in the face and rib area, shoving her into furniture and onto the floor. The complainant told the Court that Mr Lane forced their daughter to participate in the assault. Judge Reid did not accept the complainant’s version of events in this regard on the basis that he was not satisfied that Mr Lane’s daughter joined in the assault. Judge Reid stated:
I think it much more likely that if [she] was involved in someway she was in fact trying to pull the complainant and [Mr Lane] apart and the complainant in some way has misrepresented or misunderstood her involvement in the matter.[3]
[3] Ibid p 35.
The Judge accepted that the complainant suffered some bruising as a result of the incident but stated that ‘[he did] not find the attack was particularly violent and certainly not as violent as the complainant described’.[4]
[4] Ibid p 36.
The incident on 29 May 2005 involved allegations by the complainant, Mr Lane’s ex-wife, that he punched her and pushed her to the floor. The complainant then fled to the bathroom but claims Mr Lane followed her and then grabbed her, forcing her to the floor. The complainant alleged that her glasses were broken resulting in her ear being cut and there was “massive bleeding”. Judge Reid did not accept that the incident was “violent to the extent the complainant asserted”.[5] He did accept, however, that there were some injuries to the complainant’s ear, elbow, face and neck.
[5] Ibid p 38.
The incident resulting in the charge of dangerous operation of a motor vehicle on 7 January 2007 took place during a change over in custody of Mr Lane’s daughter. Mr Lane was seated in the motor vehicle with his current partner, Ms de Ryk, his partner’s sister and Mr Lane’s daughter, Ms Lane. Judge Reid accepted that the complainant sustained an injury to her knee as a result of the incident described as “a large bruise” and “swelling”.[6] Judge Reid stated that in his view Mr Lane “took the opportunity to put the car into reverse and so move it that it struck [the complainant] on the knee”.[7]
[6] Ibid.
[7] Ibid.
What is an “exceptional case”?
The Commission Act does not define the meaning of an “exceptional case”. Section 226 of the Commission Act refers to certain factors that the Commissioner must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Commissioner reasonably considers to be relevant to the assessment of the person.
The objects of the Commission Act are to “promote and protect rights, interests and wellbeing of children in Queensland”. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 20009, in determining whether an exceptional case exists, ensure that the safety and wellbeing of children is its “paramount consideration”.[8]
[8] Commission for Children and Young People and Child Guardian Act 2000, s 155.
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[9] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[10] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[11]
[9]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[10] [2004] QCA 492 at [28].
[11]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
The Commissioner has identified issues of concern or risks in relation to the offending behaviour, that is, violence and anger management. The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
The role of the Tribunal on review is to produce the correct and preferable decision; and it has the same powers as the Commissioner under the Commission Act.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
Mr Lane acknowledges that the offences took place during periods of conflict with his ex-wife and that there was some violence. Mr Lane contends, however, that the offending behaviour must be considered in the context that the allegations were made by one person in extenuating circumstances in that she, the complainant, is both the aggressor and antagonist.
Mr Lane acknowledges that his daughter was exposed to negative elements as a result of the relationship with his ex-wife and he argues that he worked hard to mitigate any damage that may have been caused to his daughter as a result of the conflict in his relationship.
I found Mr Lane to be honest and forthcoming in giving his evidence about the circumstances of the offending behaviour. Mr Lane showed genuine concern for his daughter’s well being during the time of the offending behaviour. He also demonstrated insight and remorse into his offending behaviour stating that “if at the time there was violence, then that is not a good outcome. I could have done better…”. Mr Lane also gave evidence about strategies that he has put in place to manage his anger.
Mr Lane talked at some length about the circumstances resulting in the offending behaviour. He stated that his ex-wife developed depression soon after the birth of their daughter and she struggled thereafter for a number of years with her depression including attempts at taking her own life. Mr Lane stated that any force used by him towards his ex-wife during the marriage was a result of attempts by him to restrain her from self-harm and on other occasions to enable him to safely exit from the house. For example, he said that there were occasions when his ex-wife would try to prevent him from leaving the house to take his daughter to swimming lessons; and to go to work.
Mr Lane has moved on from his previous marriage and has been living with his current partner for several years. Mr Lane stated that the family court proceedings are now finalised, he operates a business with his current partner and is looking forward to the future.
I accept Mr Lane’s submission that the allegations were made by his ex-wife several years ago in the context of an acrimonious relationship. I also accept Mr Lane’s submission that there is no evidence before me of any further offending behaviour or evidence of any violence or aggression since the offending behaviour. Mr Lane’s evidence that he has moved on with his life since ending his relationship with his ex-wife in 2005 and that he has been a caring and supportive parent to his daughter is also supported by his witnesses who gave evidence at the hearing.
Mr Lane’s current partner, Ms de Ryk, supports Mr Lane in his application and also corroborates his evidence in relation to the nature of the relationship with his ex-wife and the reasons why he did not pursue an appeal against the charges and sentence imposed by Judge Reid.
I found Ms de Ryk to be honest and truthful in giving her evidence. She stated that Mr Lane had told her that there had been “altercations” in his previous relationship and this is why he removed himself from the situation. Ms de Ryk’s evidence is consistent with Mr Lane’s evidence that he has been open and honest with his family and friends about his past relationship and his offending behaviour.
Mr Lane’s evidence that he has provided a supportive and loving role to his daughter is corroborated by the evidence given at the hearing by his daughter, Stephanie Lane. Ms Lane gave evidence that her parents had a “rocky relationship” and referred to her mother as having “mental health issues” and that her parents would argue everyday. She stated that her father, Mr Lane, would tell her that he was there for her.
Mr Lane’s evidence that he is not a violent and aggressive person and that he has positive interactions with his daughter and his friend’s children is also supported by the evidence of Ms Fortin and Ms Sweetman.
Ms Sweetman and Ms Fortin stated that they were aware of Mr Lane’s offending behaviour and after details of the allegations were reported to them at the hearing, both witnesses (independently) did not change their evidence. Both witnesses attest to Mr Lane’s positive interactions with their respective children and his positive interactions with his current partner. Both witnesses described Mr Lane as being a “calm person”.
Mr Lane’s evidence that he is not an aggressive person and that he has demonstrated insight and remorse into his offending behaviour is supported by witnesses. Ms de Ryk gave evidence at the hearing that Mr Lane regularly participates in yoga. She also stated that after Mr Lane’s relationship ended with his ex-wife he actively participated in counselling.
The psychologist’s report of Luke Hatzipetrou dated 28 May 2011 makes reference to a “psychological assessment” and “risk assessment”. The report states that Mr Lane “does present with several protective factors against future risk of violence”. The report further states that Mr Lane “presented with insight into the severity of his offending behaviour and possess the ability to identify high risk situations”. The report also refers to Mr Lane as having a low likelihood of future violent behaviour.
Ms Keown on behalf of the Commissioner submits that there are issues relating to the adequacy of the report’s findings highlighted in written submissions prepared by the Commissioner dated 21 August 2013. I have considered these submissions. I attach no weight to the findings in the report relating to the psychological assessment and risk assessment. I do, however, attach some weight to the report in that it further corroborates the evidence given by Mr Lane, also supported by his witnesses at the hearing, that he has developed a positive relationship with his daughter and has relied on exercise such as yoga to manage his stress. The report also refers to the steps taken by Mr Lane to support his daughter following the separation between Mr Lane and his ex-wife. This is consistent with the evidence given by Mr Lane at the hearing that he arranged for his daughter to participate in counselling and for her to be legally represented (separately) during the family court proceedings.
The Tribunal has carefully considered all of the evidence in this matter and the submissions made by Mr Lane and Ms Keown at the hearing.
I am not satisfied having considered all of the evidence and relevant factors including the concerns and risks identified by the Commissioner, that this is an exceptional case in that it would not be in the best interests of children for the Commissioner to issue a positive notice. The appropriate order is that the decision made by the Commissioner to issue a negative notice be set aside and a positive notice issued to Mr Lane.
Non-publication order
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as Mr Lane and Mr Lane’s daughter to be identified in circumstances where it would not be in the interests of justice to identify their names.
Mr Lane’s daughter is now 21 years of age and she gave evidence on her father’s behalf at the hearing. I accept the submissions made by Ms Keown at the hearing that there is no basis upon which to make an order to de-identify the names of Mr Lane and his daughter in circumstances were Ms Lane is now an adult and she has also given evidence in these proceedings. I am not satisfied that an order should be made under s 66 to de-identify the names of any of the witnesses in these proceedings.
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