McAlister v Commissioner for Children and Young People and Child Guardian
[2013] QCAT 438
| CITATION: | McAlister v Commissioner for Children and Young People and Child Guardian [2013] QCAT 438 |
| PARTIES: | Jonathan Llywelyn Bruce McAlister (Applicant) |
| V | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML188-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 26 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | R Joachim, Member |
| DELIVERED ON: | 22 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the decision of the Commissioner to cancel the applicant’s positive notice and blue card be set aside and that the Commissioner issue a positive notice and blue card to the applicant. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – where applicant’s positive notice and blue card cancelled – where applicant guilty of non serious offence and received custodial sentence – where protective factors outweigh risk factors – whether exceptional case exists Commissioner for Children, Young People and Child Guardian Act 2000, s6, s155, s221, s226 Kent v Wilson [2000] VSC 98 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented himself |
| RESPONDENT: | Represented by Mr Craig Capper |
REASONS FOR DECISION
Mr Jonathan McAlister wants to work with children as a volunteer at Boys Brigade. He had done this in the past and had a positive notice and blue card. When the Commissioner was notified that Mr McAlister’s police information had changed, his eligibility to hold a blue card was reassessed. The Commissioner cancelled the positive notice and blue card. Mr McAlister is seeking a review of this decision in QCAT.
Mr McAlister was arrested and charged with 10 offences in February 2012. He was found guilty on some of the charges, notably attempted arson, unlawful stalking and computer hacking, following his admissions. The offences of attempted arson occurred on 2 occasions at the residence of the new boyfriend of the applicant’s ex girlfriend. The stalking and computer hacking offences were against his ex girlfriend. He was given a jail sentence and immediately released on parole due to the period of time he had spent in remand. He is on parole until February 2014. This resulted in the reassessment and subsequent cancellation of his positive notice.
None of these offences are categorised as serious offences under the Commissioner for Children, Young People and Child Guardian Act 2000 (the Act).
In these circumstances the Commissioner must issue a positive notice unless satisfied that this is an exceptional case in which it would harm the best interests of children for Mr McAlister to have a positive notice.[1]
[1] Commissioner for Children and Young People and Child Guardian Act 2000 s 221.
The Tribunal is conducting a review of the merits of the Commissioner’s decision by way of a fresh hearing of Mr McAlister’s application for a positive notice and blue card. The Tribunal must apply the same law as the Commissioner. This means the Tribunal must consider whether Mr McAlister’s is an exceptional case. In deciding this the Tribunal must take into account the factors in section 226 if the Act.
These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty.
The Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to a case must be considered to determine whether the facts of a particular matter constitute an exceptional case.[2] The only circumstance under which Mr McAlister cannot be issued with a blue card is if the Tribunal finds his to be an exceptional case such that it would not be in the best interests of children for him to have a blue card.
[2] Kent v Wilson [2000] VSC 98.
The Act is to be administered under the principle that the welfare and best interests of a child are paramount.[3] Section 155 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.
[3] Commissioner for Children and Young People and Child Guardian Act 2000 s 6.
Mr McAlister’s case for a positive notice
The applicant advised the Tribunal that he is working in a fulltime casual job and is seeking permanent employment. He said he has good family support.
Since prison and counselling he said he now thinks things through more rationally and is more mature.
He stated that his actions would have made his ex girlfriend anxious, non trusting, uneasy and scared. He accepted this would have long lasting effects and he is sorry about that.
He acknowledged he did not know who was in the property on which the arson attempts were made and acknowledged it was very lucky nothing more serious happened.
Mr McAlister advised of the strategies he now uses which include:
§Opening up and talking to people.
§Establishing life goals revolving around work, relationships, property, loyalty and trust.
§Learning how to manage his feelings including exercising, talking to others, walking away.
He accepts his behaviour was stupid. He stated that his behaviour was a result of his emotional instability caused by emotional abuse from his ex-girlfriend. The applicant does not give this explanation as an excuse. He says it is his responsibility for not dealing with it properly.
He advised the Tribunal that he didn’t seek help then but since the sessions with his counsellor he is now more open to talk about any problems he has.
The applicant submitted he does not seek to deny the seriousness of his actions. He submitted that he handled his first serious relationship wrongly and expressed sorrow that the experience he put his then girlfriend through will be with her for a long time.
He argued that prison had given him time to think and his counsellor had taught him how to deal with stressful situations including the recent breakdown of his relationship with his brother in law.
He submitted that he was now more open with family and friends and had learnt some strategies to open himself up and get his feelings across.
His evidence was that the triggers for his criminal behaviour had nothing to do with children. He advised he withdrew from the Boy’s Brigade because he wasn’t thinking clearly and wasn’t coping. He did not want to snap at a child.
He acknowledged that a person who cannot control his behaviours poses a risk. He accepted the commissioner’s proposition that an issue to be considered is whether he now possesses a level of self control.
The applicant rejected the Commissioner’s propositions that previous behaviour is the best indication of future behaviours especially in circumstances where a person gets help.
The applicant’s witnesses which included his mother, and colleagues from the Boy’s Brigade offered similar evidence to each other that:
§Prior to his offending the applicant became rather withdrawn.
§Since release he is returning to how he was and is more open.
§He has matured and is better at dealing with his emotions.
§His behaviour was out of character and came as a complete surprise.
§He is more accepting of help.
§He is remorseful about his actions.
The Boy’s Brigade personnel advised that Jonathan was a good leader with the boys, he would resolve issues if something needed to be sorted, he never lost control at Boy’s Brigade and his behaviour was always appropriate there.
The evidence of his counsellor is that Mr McAlister had 9 sessions with her from September 2009 until March 2013.
During that time she advised he went from a high to low on a depression, anxiety and stress scale.
For approximately half of the time she had discussed emotional regulation with Mr McAlister. In addition she had given him strategies to communicate more effectively.
She advised she left the door open for further consultations and would have liked sessions to last longer to reinforce new patterns of behaviour.
She advised that Mr McAlister had “homework” to do between sessions which he had done. She noted the triggers for his inappropriate behaviour were a sense of being treated unfairly, alcohol use and being bullied.
She considered Mr McAlister had strong values for helping young people.
Why the Commissioner says Mr McAlister should not have a positive notice
The Commissioner submits that in determining whether this is an exceptional case, the Tribunal must do this in the context of the best interests of children being paramount.
Whilst the offences are not directly related to children, the Commissioner argues that the Tribunal should be concerned about the applicant’s emotional state and that the consequences of his actions could have been very serious.
The Commissioner noted that the applicant did not accept responsibility and made denials to the police until he was confronted with the evidence.
The Commissioner argued that no one in the applicants support network saw the offending coming and that past behaviours are an indication of future behaviours. Despite strong family support at the time of offending, his issues were missed.
The Commissioner notes that the applicant has undergone several sessions of counselling but points to the evidence of the counsellor that his resilience would be enhanced with further counselling.
Whilst the Commissioner acknowledged the positive steps taken by the applicant to increase his openness and resilience, he argues the applicant’s offences are relatively recent and he has not had an opportunity to deal with a stressful situation.
The Commissioner argues that the likelihood of reoccurrence of similar behaviour is unknown.
He further argues that the applicant does not show a great deal of insight into the impact of his action on the victim although he has reflected on his behaviour. The applicant’s behaviour arose because of mental health issues yet there is no ongoing interaction with a psychologist, although it was conceded that he sought assistance immediately upon release.
The Commissioner notes the applicant’s positive interaction with children, acknowledges his withdrawal from the Boy’s Brigade showed some insight, but notes the applicant did not seek assistance to deal with his situation at this time.
The Commissioner argues that it is too soon for a positive notice to be issued, that Mr McAlister’s remains an exceptional case, there is no ongoing professional support and despite strong family support, this was also available at the time of offending.
The Commissioner continues to believe that it is contrary to the best interests of children for the applicant to have a positive notice.
Is Mr McAlister’s case exceptional
The Tribunal needs to have regard to the factors outlined in section 226(2) of the Act.
In doing so, I note that the applicant has been convicted on charges of attempted arson, unlawful stalking and computer hacking. This does no credit to the applicant. Under the Act these offences are not categorised as serious offences. They are, however, quite recent and were dealt with by the District Court on 14 September 2012, the offences mostly having occurred in February 2012.
The offending was against an adult female and adult males and did not involve children.
The relevance of the offending to employment or carrying on a business that involves children or may involve children could be considered as follows:
§The applicant lacks foresight
§The applicant shows an inability to respect the boundaries and wellbeing of others.
§The applicant resorts to violence against people and property to achieve his ends.
The Commissioner has stated in his reasons:
A child’s exposure to persons who engage in violent offending behaviour is directly relevant to whether or not a child is exposed to a risk of harm, as violence affects a child’s perception of what is acceptable behaviour in the community.
The Commissioner is concerned about inappropriate role modelling.
The Court imposed a 2 year custodial sentence which the Commissioner submitted reflected the seriousness which the applicant’s offending was viewed.
The applicant has no involvement with the mental health system.
For a matter to be exceptional it needs to be out of the ordinary, rather than a variation from the norm. For this Tribunal it is a matter of discretion having regard to all of the information before the Tribunal bearing in mind the objects of the Act.
In considering this application I have taken into account protective and risk factors following the example in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[4]
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 49.
Protective factors for the applicant are:
§His behaviour was totally out of character.
§He has had counselling to assist him with strategies to improve his communication skills, manage his feelings and set goals.
§He has strong family support.
§He is remorseful for what he has done and has shown insight into the impact of his behaviour on the victims and others.
§He voluntarily withdrew from Boy’s Brigade when he felt emotionally unstable.
§He is reportedly more open with family and friends in expressing his feelings.
§His offending did not involve children.
§He is in employment.
Risk factors for the applicant are:
§His offending is recent.
§He had good family support at the time of his offending but “no one saw it coming”.
§His violent offending showed a lack of foresight for the potential consequences of his behaviour and a lack of respect for personal boundaries.
§He has ceased counselling.
§He did not seek assistance prior to his offending despite being urged to by his general practitioner.
I have concluded that Jonathan McAlister’s case is not exceptional and that he should be issued with a positive notice and blue card.
I have come to this conclusion because of a number of factors below.
I have considered the matters I am required to do under section 226 of the Act.
Section 226(2)(e) allows me to consider other things relating to the offence that I consider relevant to the assessment of the applicant.
I consider the protective factors outlined above outweigh the risk factors considerably. I accept that Jonathan works well with children and has always behaved responsibly around children.
I accept his behaviour was totally out of character and that he was in an emotionally abusive relationship. Whilst this is no excuse for his behaviour, it is relevant to consider that he had not behaved liked this previously.
I acknowledge that only a short time has elapsed since his offending. However, it is to Jonathan’s credit that he entered counselling immediately on release, he has demonstrated an increasingly open approach to communication and is genuinely remorseful for his actions.
I consider that Jonathon’s earlier voluntary withdrawal from the Boy’s Brigade a significant event demonstrating an awareness of his emotional instability at that time and his not wanting this to impact on the boys under his supervision and guidance.
I consider it is very likely his family will be considerably more sensitive to any future change in Jonathan’s mood and will be more forceful in assisting him to seek any necessary assistance if he does not do so himself.
I accept that insight is an important factor in considering future risk of inappropriate behaviour. I disagree with the Commissioner’s view that the applicant lacks insight. He expressed both verbally and in writing his sorrow and remorse as well as outlining the impact of his behaviour on the victims and his own family. I also accept, contrary to the Commissioner’s written reasons, that the applicant accepts responsibility for his behaviour, and acknowledges the seriousness of his actions.
I am satisfied that the applicant poses no real risk to children and that the paramount consideration of the welfare and best interests of children will not be offended if the applicant receives a positive notice.
I am not 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 the applicant.
I order that the Commissioner issue the applicant with a positive notice and blue card.
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