MAM v The Chief Executive Officer, Public Safety Business Agency (Blue Card Services)
[2014] QCAT 498
•26 September 2014
| CITATION: | MAM v The Chief Executive Officer, Public Safety Business Agency (Blue Card Services) [2014] QCAT 498 |
| PARTIES: | MAM (Applicant) |
| v | |
| The Chief Executive Officer, Public Safety Business Agency (Blue Card Services) (Respondent) |
| APPLICATION NUMBER: | CML046-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 5 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Goodman |
| DELIVERED ON: | 26 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review is dismissed. 2. The Respondent’s decision to issue a negative notice to the applicant is confirmed. 3. The Tribunal prohibits the publication of any information which identifies, or could lead to the identification of a child, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | Childrens matters - whether an exceptional case in which it would not be in the best interests of children to issue a Blue Card – no serious offence – domestic violence in home – no independent professional assessment of applicant’s functioning and insight Working with Children (Risk Management and Screening) Act 2000 (Qld) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MAM appeared in person |
| RESPONDENT: | Respondent was represented by Ms Louise Keown |
REASONS FOR DECISION
MAM applied for a Blue Card so that he can look for work counselling adults and children. MAM states that he has a good affinity with most people, has undertaken a Diploma of Counselling, and wishes to move into the counselling line of work. MAM states that he objects to having his application knocked back as he is not a paedophile.
The application was considered by the Commission for Children and Young People and Child Guardian, and was refused. The previous role of the Commission is now undertaken by the respondent, although the law remains the same in all material respects.
This matter is now before the Tribunal and I must consider whether MAM should be issued with a Blue Card. Because MAM has not been convicted of what is termed a “serious offence”, he must be issued with a Blue Card unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. [1]In determining whether this is such an exceptional case, I have had regard to the evidence available to me, and the considerations contained in the legislation.[2]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[2]Ibid s 226.
I have considered MAM’s criminal history (apart from charges withdrawn or dismissed), detailed below:
a) 24/11/77 – carried in a stolen motor vehicle
b) 7/11/78 – negligent driving, fail to stop, unaccompanied learner, stealing
c) 14/11/79 – carried in a stolen motor vehicle
d) 13/12/79 – stealing
e) 10/09/82 – possess Indian hemp, smoke Indian hemp, manufacture Indian hemp, supply Indian hemp.
f) 15/02/85 – break, enter with intent
g) 12/03/87 – break, enter and steal
h) 1/10/97 – goods in personal custody reasonably suspected being stolen, steal from the person value <$2,000, larceny value <$2,000
i) 23/03/98 – fail to appear
j) 17/04/98 – steal from the person value <$2,000
k) 3/08/1999 – furnish false information to licensee, larceny value <$2,000
l) 1/09/99 – enter prescribed premises of any person without lawful excuse
m) 9/05/12 – breach of domestic violence order
The respondent states that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card to MAM.
MAM is now 52 years of age. He provided a personal history, describing himself as a bit of a wild child at school. He left school before his 14th birthday when it looked like he was likely to be expelled. He worked in his family’s pet accessories business and then on the railways when he was 16 years of age. He worked for the railways for a couple of years before becoming heavily involved in drugs and leaving work. He began stealing to support his drug use.
MAM used drugs “fairly heavily” until the age of 41 when he began personal study of the Bible. He has never been part of a church community. MAM was at the time inspired to stop taking drugs in the hope that he could improve his relationship with his daughter (who was born when MAM was in his late 20s). He had previously tried unsuccessfully to stop his drug use. In around 2003 he spent three years with the Salvation Army in Sydney and Brisbane and was able to finally end his drug taking. MAM says that most of his criminal history relates to his drug use.
MAM has ongoing health issues (liver and heart) which he puts down to long term drug and alcohol abuse.
In 2008 or 2009 MAM travelled to Thailand and met his future wife W. They maintained contact via email and he travelled back to Thailand for a visit after a couple of months. After some fighting between her family members, MAM and W began the immigration process and were married in 2009. W moved to Australia with her daughter K.
MAM recalled an initially happy marriage. He says that when W reconciled with her mother she became abusive and violent and demanded that MAM send money to her family in Thailand. In 2010 W threatened him with knives and he took out a Protection Order against her.
In 2011 W took out a Protection Order against MAM. He says that as the Police couldn’t ascertain who was at fault they “put it on me”. At the time of the incident, W had undergone an operation four days previously. MAM says that she was holding a knife and he banged the handle of the knife against her hip. MAM believes that W wanted a Protection Order against him as he had previously taken one out against her.
In 2012 MAM was found guilty of breaching the Protection Order. He describes providing the Department of Child Safety with evidence that W was sending money to Thailand. Later that day, the child K kicked him between the shoulder blades. There was an argument when he refused to take W to the pokies and she left the house with K. He followed them in his car and when they eventually got into the car he hit them both on the thigh with his open hand. He later dropped them at McDonalds and they started walking home. He followed them in his car and police were called.
MAM states that he was worried about the safety of W and K walking alone at night. He was concerned a sexual predator might be around, particularly given that a prisoner escaped at around that time and had approached W at the shopping centre.
MAM says that over the course of his marriage to W the Department of Child Safety had been involved and had been successful in settling W’s behaviour and arranging for some counselling. MAM states that he found the Department provided very good support.
MAM says that counselling was useful but did not deal with W’s problem gambling. MAM recalled three separate organisations where he had attended counselling.
MAM recalled that W was also violent towards her child K, hitting the child with objects like a broom. MAM states that he formed a good relationship with K who was welcomed into his family. He says that if he needed to discipline K he would usually take her IPad off her. He described a “really bad” impact on K of witnessing and being subjected to domestic violence.
MAM indicated that any domestic violence he perpetrated was “only in response to what W had been doing.” He says that in retrospect he couldn’t have done anything other than hit W – he had tried everything else.
MAM says that after years of violence and abuse and attempts at counselling, he and W separated in January 2014. W now lives with a new partner and it is likely she and MAM will divorce. He describes their current relationship as “ok”.
MAM says that he has the support of his family in Sydney and friends in Brisbane. His primary source of support is through reading the Bible. He says that he will avoid entering into relationships in the future, which will prevent a recurrence of the incidents recounted above. He wishes to become a counsellor so that he can help others.
MAM provided evidence of ongoing health issues – heart and liver problems and hepatitis C. MAM says that those conditions make him less tolerant of stress as he is worried that stress will cause further heart problems. He has in the past had difficulties coping with the side effects of prescribed medication. MAM indicated that he has trouble with his memory. He described having trouble “thinking”. For example, he forgets things he has learned and has short term memory difficulties and sometimes has trouble remembering the thread of conversations.
MAM submitted quite strenuously that he has been the victim of bias against him: he believes that the system is biased against male victims of domestic violence, and there is bias against him because he is a pensioner.
MAM’s GP Dr Anderson has treated him for approximately five years. He confirms that MAM was the victim of domestic violence. He states that MAM is currently being treated for depression and will remain on antidepressants into the foreseeable future. Dr Anderson confirmed that none of MAM’s medications should adversely affect his memory.
I note that on 13 March 2014 QCAT issued directions recommending that MAM obtain an up to date psychological report from an independent registered psychologist or psychiatrist as to his suitability for child related employment. MAM advised that he was unable to organise a report. This Tribunal, therefore does not have the benefit of an independent professional assessment of MAM’s functioning and insight.
In determining whether an exceptional case exists, the legislation sets out matters that must be taken into consideration[3]. I may also take into consideration any other evidence that is relevant.
[3]Ibid s 226.
It is relevant that MAM has a very long criminal history, including a conviction for breaching a Domestic Violence order. This conviction arose out of the incident which is described above and culminated in MAM hitting his wife and her daughter with his open hand. I take into account the context in which this behaviour was said to occur – a teenage girl and her mother out a night in what MAM considered to be an unsafe area, his concern for them, and the history of significant violence perpetrated against him and the child in the home.
I take into account that MAM has been willing to form supportive relationships with the Department of Communities, Child Safety and Disability Services and with various counselling agencies. He has turned away from the use of drugs and alcohol and has taken positive steps to protect and improve his physical and mental health.
MAM has acknowledged the violence had a negative impact on everyone in the home and has indicated that he will avoid re-entering any relationship characterised by violence.
The respondent refers to the extensive involvement of the Department of Communities, Child Safety and Disability Services. The Department found that two notifications of harm were substantiated and in 2012 found that both the Applicant and his wife were assessed as “parents not willing or able to protect and meet the child’s immediate and ongoing physical and emotional needs.” The Department’s material includes a finding that both MAM and his wife “minimised the domestic violence incidents and not having acknowledged the impact of their behaviour on the child’s emotional wellbeing.”
I am satisfied that MAM has demonstrated a reasonable understanding that violence in the home has a negative impact on children. In his own case, however, he indicated that the violence was justified as he had tried everything else and was reacting to violence against himself. He was unable to identify any alternative strategies he could adopt if similar situations arise in the future. MAM has a history of being involved in violent situations and does not have a good insight into strategies to avoid future violence, or of the effects of his actions.
I am also concerned by MAM’s apparent cognitive or memory difficulties. It was clear during the hearing that MAM struggled at times to follow the Tribunal proceedings, and to answer questions put to him. MAM has identified he sometimes has trouble with “thinking” but there has been no psychological or other professional evidence on the extent to which MAM is affected by this difficulty.
MAM is quite preoccupied with proving that he is the victim of domestic violence. I accept that he was – he says as much and his doctor and the Department’s records support that claim. That is not the end of the enquiry. MAM himself was also the perpetrator of violence and that is an issue that I must take into account in reaching my decision.
MAM’s submissions are themed around the verbal evidence he provided – that he is a victim of abuse, gender and class bias and of vindictive neighbours. I accept that he was the victim of abuse, that authorities (police and the Department) struggled to respond to allegations of violence against MAM made by his wife who did not speak English well, and that he had a conflicted relationship with his neighbours. That does not in itself mean that a Blue Card should be issued.
I have taken into account MAM’s long criminal history, his poor physical health which (he says) makes him less tolerant of stressors in case they trigger further heart problems, his memory problems (in the absence of professional independent evidence of the effect that the problems will have on his ability to provide a suitable environment for children), and his recent relationship which was marked by significant violence.
A Blue Card enables a holder to work unfettered in any child related field. It is transferable and unconditional. I am not satisfied that MAM is able to create and maintain a stable, supportive and safe environment for children. I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice to MAM.
The decision to refuse to issue a Blue Card to MAM will be confirmed.
Non-publication Order
The respondent submits that a non-publication order is appropriate in this matter, so as to avoid indentifying the child. Non-publication orders can only be made in specific situations, including where it is necessary in the interests of justice.[4] I note that The Child Protection Act 1999 (Qld) prohibits the publication of information that is likely to lead to the identification of a child who has been the subject of an investigation by the Department.
[4]QCAT Act s 66.
I am satisfied that it is necessary in this case to issue a non-publication order over any material that is likely to lead to the identification of the child. That will include material held on the Tribunal file and the names of MAM, his wife, and the child herself.
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