Lawson v Commissioner for Children and Young People and Child Guardian
[2013] QCAT 661
| CITATION: | Lawson v Commissioner for Children and Young People and Child Guardian [2013] QCAT 661 |
| PARTIES: | Lee Jonathan Lawson (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML209-12 |
| MATTER TYPE: | Children’s matter |
| HEARING DATES: | 21 May 2013 and 23 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 17 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal dismisses the application for review and confirms the decision of the Commissioner made 1 August 2012 to issue a negative notice to the Applicant. |
| CATCHWORDS: | Children’s matter - Serious or disqualifying charges - insight - age difference |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Lee Jonathan Lawson represented himself. |
| RESPONDENT: | Commission for Children and Young People represented by Georgina Thomas and Cassandra Doubiton. |
REASONS FOR DECISION
Lee Lawson is a 35 year old man who describes himself as having a loving wife and stepson. At the time of the hearing he was in steady work with some great friends.
In June 2012 he applied to the Commissioner for Children and Young People and Child Guardian for a positive notice and blue card under the provisions of section 199 of the Commission for Children and Young People and Child Guardian Act 2000.
As part of the assessment of his application the Queensland Police Service notified the Commissioner on 9 August 2012 that Mr. Lawson’s criminal history showed charges in New South Wales for “sexual intercourse – child between 10 & 16 years – under authority” and “aggravated sexual assault – victim under the age of 16 years.”
The Report from the Police also detailed a small number of other charges and convictions alleged to have been committed by Mr Lawson between May 1998 and February 2012.
On 16 November 2012 Mr Lawson was issued with a negative notice and his blue card application was refused. On 11 December 2012 he sought a review of the decision in QCAT.
The alleged offences of “sexual intercourse – child between 10 & 16 years – under authority” and “aggravated sexual assault – victim under the age of 16 years” were allegedly committed against a 14 year old girl. They are defined as serious offences under the Act[1]. They are also defined as disqualifying offences.[2] The charges were withdrawn in June 2005.
[1]Section 167(1)(g) and Schedule 2.
[2]Section 168(1)(f) and Schedule 4.
Under the assessment process mandated by the legislation, where there is conviction for an offence which is not a serious offence, and a charge for a serious or disqualifying offence that has been dealt with other than by a conviction, then a Positive notice is to issue unless the Commissioner (or in this case the Tribunal) is satisfied that it is an exceptional case in which it would not be in the best interests of children for a Positive Notice to issue.[3]
[3]Sections 221(1)(c) and 221(2).
Mr Lawson has convictions for other offences of “disorderly conduct” and “break and enter a building, commit felony (steal)”. These are not serious offences as defined under the Act.
The charges that were withdrawn relate to events alleged to have occurred between 1 April 2002 and 31 May 2002.
The Commissioner considered the charges of the sexual offences, notwithstanding that they were withdrawn on the basis that Parliament considers such charges to be in the highest category of concern in terms of assessing a person’s eligibility to work with children and young people.[4]
[4]At page 11, Explanatory Notes to the Commission for Children and Young People Bill 2000.
The Tribunal’s role
The Tribunal is able to consider the matter afresh, and it may consider new evidence. The Tribunal can affirm the original decision, amend the original decision or set that decision aside and substitute its own decision.
The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children. Further, that decision is guided by the right of children to be cared for in a way that they are protected from harm and promotes their well being.
The question for this Tribunal is whether or not Mr Lawson’s past history is such that it should be regarded as an exceptional case where it is not in the best interests of children for a Positive Notice to issue.
What the Tribunal must consider in deciding an exceptional case?
The object of the Act is to promote and protect the rights, interests and wellbeing of children in Queensland (Section 5). Chapter 8 of the Act requires that decisions must be made under the principle that the welfare and best interests of a child are paramount. The Tribunal is required to consider this matter upon the same principles as the Commissioner.
The standard of proof upon which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 the Queensland Court of Appeal at paragraph 30 adopted the submission that:
…(t)he Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a Positive Notice to be issued.
In a recent appeal decision of Eales[5], the Tribunal reviewed the decisions in the Maher[6] and FGC[7] cases and confirmed that the phrase ‘exceptional case’ must be considered ‘in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect’. Further the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
[5]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303.
[6]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
The Tribunal pointed out that
…(w)hat the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[8]
[8]Ibid at [31].
The Tribunal also referred to the comments of Philippides J in Maher’s[9] case, which were endorsed by the President in FGC’s[10] case. She said:
…the Tribunal found there were present a number of significant protective factors which constituted ‘exceptional circumstances’, such that it would not harm the best interest of children for a positive notice to be issued, its ultimate determination was made having regard to the criterion specified by the Act and its satisfaction that the criterion had been met. I can see no error in that approach.
[9]Ibid at [28].
[10]Ibid at [35].
The matters set out in the Act are not to be considered in isolation. Section 226 allows for decision makers to consider anything else relating to the omission, or alleged commission of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person.
The sexual offences with which Mr Lawson was charged in New South Wales contained the following allegations:
a) In 2002 Mr Lawson was an adult member of a house where the child involved lived. He moved into a “granny flat” at the rear of the house.
b) At the time he was 23 years of age and the child was 14 years old.
c) In April or May 2002, the child’s mother and sister went shopping and while they were away Mr Lawson and the child were sitting on a couch when he started kissing the child on the lips for a short time after which the child went to her room.
d) Mr Lawson followed her a short time later and he lay beside the child on the bed where they began kissing again.
e) Mr Lawson then removed the child’s pants and underpants and his own pants and they had sexual intercourse.
f) The child did not disclose the incident to any person. It was alleged that Mr Lawson threatened the child stating ‘If you fall pregnant, don’t tell your mum it was me or I’ll make your life a living hell’.
g) In December 2002 the child found out she was pregnant and Mr Lawson warned her not to tell her mother who the father was. The child was born in January 2003.
h) Mr Lawson continued to live in the granny flat. It was not until 2004 that the child’s mother found out that Mr Lawson was the father of the baby.
i) Mr Lawson subsequently left the premises and was believed to have gone to Queensland.
The Police report indicates that they were unable to locate Mr Lawson for several months after the matter was reported to them.
What Mr Lawson had to say…
Mr Lawson provided a very comprehensive statement to the Tribunal and gave extensive oral evidence. His wife, Karen Lawson and 2 friends Kim D’Arcy and Nicole O’Keane also supported him by providing references and giving oral evidence at the hearing.
Mr Lawson described a chaotic upbringing where he and his siblings were physically abused by his mother’s second husband. He also said that he and his siblings were sexually abused by one of his older brothers.
He outlined his struggle with depression and mental illness that led to attempted suicide and self-harm. He was admitted to a psychiatric unit when he was about 17 years old by one of his brothers who was concerned about his mental health and suicide ideation.
Mr Lawson admitted to using alcohol and drugs for many years to help him cope with his depression and the painful memories of his childhood. He claimed that he has been drug free for over 7 years and said that he has achieved this by himself.
In relation to the matters giving rise to his sexual assault charges, Mr Lawson readily admitted to having a sexual relationship with the child. He says that, initially, her mother would occasionally bring the child to their workplace and that he became friends with her and was led to believe she was 16 years old at the time. He said that he moved into the family home and then a sexual relationship started. In his oral evidence Mr Lawson claimed that the child initiated the relationship. He claims that he found out her real age just before her 15th birthday and that he confronted her about it. There was an argument and he ended their relationship.
Mr Lawson says that during 2003 he was still living at the property and was giving most of his wages to the child and her mother to help with the costs of rent and raising the baby.
When questioned about the child’s age, Mr Lawson said that he didn’t think it was appropriate to question what he was told. He claimed that ‘no one does that…’. When discussing the matter, Mr Lawson became quite agitated and asserted that he would love to go back and change what he did but that is not possible. He acknowledges that it was the biggest mistake of his life. He expressed some remorse that he has a daughter that he spent one year with but hasn’t seen since.
Regarding the impact of his behaviour on the child he contended that it was nowhere near as much as she made out. He says that she never went to school or cared for the baby and in the first year he was the one who looked after the baby.
With respect to his own feelings about what occurred he said that he does feel bad about the impact on the child but ‘in a way I don’t’. He says it changed her life but that she was very like her mother - too lazy. Overall Mr Lawson did not regard the age difference as significant. He said that there were no indications of her age, her friends were 19 – 20 years old and no one else seemed to be bothered about it.
Throughout his evidence, Mr Lawson expressed frustration with the whole situation he found himself in and concluded his evidence by expressing his view that ‘the concept of the blue card is ridiculous’.
Is this an “exceptional case”?
The Tribunal identified a number of risk factors regarding Mr Lawson.
In 2004 Mr Lawson was charged with 2 offences involving sexual intercourse with a 14 year old girl when he was 24 years old. He took the opportunity to have unprotected sex when the occasion arose.
He did not see the need to inquire as to the age of the child and he did not acknowledge his role in the household as a responsible adult. The Commissioner submits that he was in a position of trust and had a duty to act protectively towards the child
He did not appear to reflect on the circumstances that led to the charges, despite being given numerous opportunities and appeared unrepentant regarding his role in the relationship.
He did not produce any independent medical or psychological evidence to demonstrate that he is not a danger to children despite a recommendation by the Tribunal.
He failed to acknowledge the significant and serious consequences that flowed from his actions. The Commissioner points out that the child became pregnant and gave birth just after her 15th birthday. He submits that it is likely that she has suffered significant emotional harm.
There are no categories of Blue Card nor is it possible to restrict the grant of a Positive Notice to specified child related activities – a grant of a Positive Notice to Mr Lawson would be in place for a period of years and would allow him the ability to work with and have contact with children in situations which may not be contemplated now.
Mr Lawson demonstrated a lack of insight into the seriousness of the alleged offences. He made it clear to the Tribunal that he no longer cared how old the child was, in his view he was blameless in the circumstances because she misled him about her age and he was not willing to acknowledge the harm done to the child and her baby.
The Tribunal was able to identify some protective factors regarding Mr Lawson.
Mr Lawson has a very supportive family and friends who have spoken highly of his level of responsibility and the trust they place in him. They have no qualms about leaving their young children under his care without any supervision.
However the Commissioner points out that neither of Mr Lawson’s independent witnesses appeared to have actual details of his alleged sexual offending. As a result he contends that little weight can be given to their evidence. With respect to the evidence of Mr Lawson’s wife, the Commissioner submits that her opinions are inherently lacking in objectivity and could be seen as an attempt to minimise Mr Lawson’s behaviour.
He is in a stable marriage relationship and it is clear that the relationship is very important to both of them.
He has a history of full employment, and contribution to the community.
Mr Lawson presented to the Tribunal as an honest and genuine person, who gave candid evidence and was not self-serving in his responses to the Tribunal’s questions. He was prepared to express his position in a very direct and open manner.
His witnesses spoke very highly of his caring and responsible attitude and personal strengths.
The Outcome ?
The legislation emphasises that the approach of the Tribunal in determining whether an exceptional case exists is discretionary rather than prescriptive.
The Tribunal is not deciding the criminal charges that were brought against Mr Lawson and then withdrawn. It accepts without question that the charges were withdrawn. The allegations, however, provide a useful context against which the Tribunal’s can determine whether this is an “exceptional case”.
The Tribunal is very mindful that Mr Lawson was well supported by his witnesses. They generally seemed to be of the view that the child had lied about her age to Mr Lawson.
The Tribunal is not satisfied that Mr Lawson has demonstrated any insight into the gravity of his actions even if he had the honest belief that the child was 16 years old. The charges were child related and involved an alleged child sexual offence. Mr Lawson acknowledges that he had a sexual relationship with the child. The Tribunal is not satisfied that he appreciated his role in the events that led to him being charged.
A Blue Card is transferable. The Tribunal is not satisfied that for Mr Lawson to hold a Blue Card to work with children in any context is without significant risk. It is the Tribunal’s view that this is an exceptional case because Mr Lawson has demonstrated lack of insight into his behaviour and he has been reluctant to acknowledge the extent to which his actions have severely compromised a young female teenager.
The Tribunal is satisfied, on the balance of probabilities, that this is an exceptional case in which it is not in the best interests of children for a Positive Notice to issue.
Order
The Tribunal dismisses the application for review and confirms the decision of the Commissioner made 1 August 2012 to issue a negative notice to the Applicant.
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