MD v Director-General, Department of Justice and Attorney-General

[2018] QCAT 324

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MD v Director-General, Department of Justice and Attorney-General  [2018] QCAT 324

PARTIES:

MD
(applicant)

v

DIRECTOR-GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

 (respondent)

APPLICATION NO/S:

CML267-17

MATTER TYPE:

Children’s matters

DELIVERED ON:

19 September 2018

HEARING DATE:

3 May and 28 August 2018

HEARD AT:

Brisbane  

DECISION OF:

Member Clifford

ORDERS:

1.   The decision of the respondent to refuse to cancel a negative notice dated 1 November 2017 is confirmed.

2.   Other than the parties to this proceeding, publication is prohibited of any information which may identify the applicant, any relevant complainant or any relevant child.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QCAT – application for review of decision – where respondent refused to cancel a negative notice – where serious offence when applicant a juvenile – whether an exceptional case

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of decision – where respondent refused to cancel a negative notice – where serious offence when applicant a juvenile whether exceptional case.

Queensland Civil and Administrative Tribunal Act 2009 Qld
Working with Children (Risk Management and Screening) Act 2000 Qld

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Commissioner for Children and Young People and Child Guardian v Ram QCATA [2014] 27.

APPEARANCES & REPRESENTATION:

Applicant:

MD self-represented

Respondent:

Mr I. McGowie, Legal Officer

REASONS FOR DECISION

Background

1. MD is a 48-year old man of Aboriginal descent who experienced a disrupted and violent childhood. MD was taken into State care but was abused by foster carers. From around the age of 12 years MD lived on the streets of Kings Cross, New South Wales, where he became addicted to drugs and was surrounded by a paedophile ring. MD grew up in ‘the worst place imagined’. He lived in Kings Cross ‘as a junkie’ for 27 years. MD has fathered a large number of children over the years, but in 2002 MD met the mother of his then two youngest children who were born in March 2003 and February 2004. They moved to Queensland but in 2005 the mother of the children left the children with him and moved interstate.  MD has had the children in his care since. MD met the mother of his now youngest child in 2012.  They have since separated and his ex-wife has a Domestic Violence Order against him. MD has contact with the child of the marriage on alternate weekends and a two-hour period each Wednesday. Child Safety services have been involved with MD and his family over the years.

2. MD has worked at various jobs since living in Queensland although he is currently on Workcover for a shoulder injury. MD joined the State Emergency Services as a volunteer around 2011. He has been involved in vertical rescues and has received Statements of Attainment in Safety and Community Volunteering. MD is receiving counselling for PTSD following a body retrieval. MD was an Australia Day Citizen of the Year nominee in his local Council area in 2018. MD has established two on-line volunteer groups, one to assist families in need and another to rescue bogged 4wheel drive vehicles.

3. MD has a long string of criminal offences spanning most of his lifetime, firstly as a juvenile in 1982 at age 12 years up until late 2014 for beaches of a domestic violence order. All are non-serious offences for the purpose of the Working with Children Act[1] except for an offence as a juvenile in 1984 for assault and robbery in company. MD was convicted for both charges and committed to an institution for 12 months.

   [1]Working with Children (Risk Management and Screening) Act 2000.

4. MD was first refused a Blue Card in June 2007, however he was successful in an application to cancel that negative notice and in December 2012 he was granted a Blue Card. On receipt of further Police information the respondent cancelled this positive notice in December 2014. MD applied to have the 2014 negative notice cancelled but on 1 November 2017 the respondent notified MD that the application had been refused. MD applied to the Tribunal for review of that decision.

   Legal framework

5. The Working with Children Act prescribes reviewable decisions, outlines whom may apply for review and what the Tribunal may or may not do in relation to the review.[2] The Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that the Tribunal may either confirm the decision or set it aside. [3]

   [2]Op.cit, Working with Children Act, section 354.

   [3]Queensland Civil and Administrative Act 2009, sections 17 - 24.

6. When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[4]  

   [4]Op.cit, Working with Children Act, sections 6 and 360.

7. The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. If a negative notice is issued, the applicant cannot apply to have the notice cancelled for a period of two years. If an applicant has a serious offence the law provides that a negative notice must be issued unless it is an exceptional case in that it would not harm the interest of children for the applicant to be issued a positive notice.

8. The Working with Children Act does not define exceptional case, however, the Queensland Court of Appeal in the matter of Maher & Anor,[5] provided guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case, and accepted that looking at protective and risk factors was one way of deciding if a case is exceptional. The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.[6]  The Tribunal’s Appeal Tribunal in the Ram case[7] also found that ‘life changes that amount to him living his life in a law abiding manner as society expects’ are generally considered to be in the ‘ordinary course’ and in that case did not constitute an exceptional case on the evidence before it.

   [5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

   [6]Refer to Working with Children Act, section 226 (2).

   [7]Commissioner for Children and Young People and Child Guardian v Ram QCATA [2014] 27 at 47.

   Material/evidence considered

9. The respondent provided a full statement of reasons and relevant attachments referred to as BCS 1-159, Child Safety documentation obtained under Notice to Produce, referred to as NTP 1- 224 and Magistrate Court documentation obtained under Notice to Produce, NTP 225- 290.

10. The respondent had an opportunity to cross-examine the applicant and witnesses and provided final written and oral submissions.

11. MD provided his original application for review along with a personal history dated 7 March 2018, six written references/letters of support, copies of two Statements of Attainment and Citizen of the Year nominee certificate and a copy of a domestic violence application and his response to that application. MD has an opportunity to examine the witnesses, reply to issues raised in his cross-examination and to make final oral submissions.

12. It is uncontested MD has a serious offence from 1984 when a juvenile. The starting point under the law in that case is that a negative notice must be issued unless there is an exceptional case. Consideration of the provisions of section 226, along with any other relevant material is required when deciding if a matter is an exceptional case.

13. MD was convicted for assault and robbery in company as a 14-year old and sentenced to an institution for 12 months. A history of violence is relevant to any employment, or carrying on a business, that may involve children. Children need to be protected from the impact violence may have on their feeling of security and self-confidence both directly or indirectly. No other report or information has been given to the Tribunal pursuant to section 226(2) (b) (c) or (d) nor is the Tribunal aware of any investigative information or disciplinary information under sections 227 and 228.

14. Along with the history of a serious offence the respondent outlined particular risk factors in relation to MD. These included the long offending history from 1982 involving drugs, violence and property offences until the last substantiated offence in 2006 for assault occasioning bodily harm, and the dismissed charges of common assault in 2011. Other risk factors raised included two breaches of a domestic violence order in 2014, a history of homelessness with children in his care in 2010, Child Safety concerns raised between 2011-2014 and 2017 including issues of inappropriate discipline. The respondent also submitted MD demonstrated limited insight into the impact his actions have had on his children.

15. The respondent noted MD had some protective factors in place, including that MD has supportive referees, that the serious offence occurred more than 34 years ago, that there has been no recent offences for over 3 years and that MD expresses regret for his offending history with a clear desire to improve his life and testifies that he has been drug free for many years.

16. The respondent submits however that in light of the test in the presence of a serious offence, that only two referees made themselves available for cross-examination and that the Ram case[8] confirmed that changes in a person’s circumstances which simply amounts to them living in a law abiding manner as society expects and functioning at a level expected of a person at their stage and age in life, are generally considered to be in the ‘ordinary course’ and are not exceptional.

    [8]Op.cit, Ram case at para 47.

17. MD did not hide from his extensive criminal record, desperate personal struggles and the involvement of Child Safety in his life. He described to the Tribunal that he grew up in the worst place imagined.  MD states he essentially started a new life on the birth of his daughter in 2003. He testified how he moved to Queensland but ‘fell into some potholes along the way as any drug addict would’. When he became homeless with the children in 2010 Child Safety advised him to go to Department of Housing, which he did and he obtained his ‘first home ever’. After the 2011 floods he joined the SES, and although the longest serving probation officer, completed the course in 2013. MD testified it was his biggest achievement ever.

18. When MD met and married the mother of his youngest daughter around 2012 he testified that he had been working driving trucks up to 60 hours per week. MD said he loved his wife however she suffered post-natal depression and started spending around $3,000.00 per month on exotic fish. MD testified that when he took away the credit card she moved out and refused to let him see their daughter and she applied for a domestic violence order. MD testified he just agreed to the DVO, but denies he has ever hit a woman, and submits that the application did not allege such acts. MD does not deny he breached the orders by sending two text messages, one asking about family mediation and the other saying ‘I love you’ immediately after the first as a matter of habit.

19. MD currently sees his youngest daughter every second weekend from pick-up at school Friday until 6 pm Sunday with a drop off at McDonalds, and then every Wednesday with pick-up at school and drop off at McDonalds at 7 pm. This arrangement is pursuant to family court orders. MD’s 15-year old daughter and 10-year old son live with him full time.  

20. MD suffered a workplace injury and is currently on Workcover. MD also has been diagnosed with PTSD following a body retrieval. He receives counselling for this and has been prescribed medication. MD testified that when appeared at the Tribunal in May 2018, when the proceeding was adjourned, he was suffering side effects of the medication and that his medication has since been changed.

21. During his time-off work MD started two on-line volunteer services that he describes as ‘random acts of kindness.’ One assists families in need and the other assists driver’s whose 4wheel drive vehicles have become bogged. These websites have thousands of followers but have not been without difficulty.  MD confirmed the Police have been involved in some issues associated with the group concerning use of barbeques in public spaces, an allegation by a adolescent child about abuse and the 2011 common assault offences referred to earlier. Notwithstanding these issues it is from this work MD was nominated as a Citizen of the Year nominee for Australia Day in his local council area in early 2018 and it is through his volunteer work the attending witnesses know him.

22. MD was cross-examined about the allegations made by the child in November 2017 and referred to in Child Safety documents NTP 208- 219.  MD strongly denied he punched the child in the face, threw a shovel at him, pushed his head into a wall or threw him in the boot of his car. MD testified the young boy is a liar, is in a boys’ home, uses ICE and is a pothead. He testified that no charges were made against him, as the Police know the boy. MD testified he was trying to help the boy get on the right path, tried to get him to work and be part of community with the permission of his mother, but he stole and was abusive. MD testified that he and the boy’s mother are like brother and sister and that she has now moved interstate.

23. Kym Jepson signed a statement dated 13 March 2018 and testified she has know MD personally for around 16 months, and earlier through his on-line presence. She described herself as a friend and granny like figure in MD’s life. Mrs Jepson did not know every detail of MD’s offending or personal history but testified she was broadly aware of his very difficult childhood and difficulties with his ex-wife. She opined that some people are jealous of his volunteer work and she testified that he had a run-in with a friend’s son who lied about MD’s actions. Mrs Jepson described MD as a ‘decent bloke’, and that he would ‘give the shirt off his back’, is ‘an inspiration’ and ‘awesome with kids’ and ‘a really good father’. Mrs Jepson testified she had never seen MD hit or be violent towards children.

24. Judy Tomlinson signed a letter of support dated 1 December 2017 and testified that she had know MD since 2014 from helping out with a variety of community events.  Mrs Tomlinson testified she had broad knowledge of MD’s background in his younger years and that there was a DVO in relation to his ex-wife. Mrs Tomlinson testified MD is open and up-front about his past, but was not aware of his involvement with Police. Mrs Tomlinson testified she had seen MD with his daughter and that they speak well together, that he communicates really well in a calm and quiet manner. Mrs Tomlinson testified she is happy having MD help her group and she is ‘impressed’ by his work and that he has ‘strong heart for community’.

25. BJ signed a letter dated 9 May 2018. BJ writes she is a friend of MD’s of about 4 years, and is the mother of a 13-year old child who made allegations against MD in 2017. BJ states her son has lots of issues and has made false accusations against MD. BJ writes she would trust her children in MD’s care and that he is a wonderful man.

26. It is undeniable MD has had a most difficult life. The Tribunal agrees it is, as described by MD, one of the worst imagined. MD claims it is exceptional he survived. MD has received some victims’ compensation money from his time in State care and has recently received correspondence about possible further claims. The Tribunal accepts that since leaving NSW in mid-2000 MD has generally tried to stay clear of drugs and criminal behaviour. However, the Tribunal concurs that MD has met with some ‘pot-holes’ on the way. These ‘potholes’ whilst not classified as serious offences include property charges, public nuisance, and an act of violence, an assault of a man in the presence of the victim’s young son in 2006.

27. Whilst the Tribunal notes that MD has not had any criminal convictions since that 2006 offence, and testified that he has not used drugs since 2010, he remains in the shadow of the law with minor Police involvement around his on-line activities, Child Safety concerns and domestic violence orders against him. Whilst MD has provided explanations towards these issues that are not unreasonable, given the presence of a serious offence along with extensive criminal history and on-going Child Safety involvement and a Domestic Violence Order in place the Tribunal is not persuaded MD’s case is an exceptional one whereby it would not harm the interest of children for him to be issued with a positive notice.

28. Whilst the Tribunal acknowledges MD’s attempts to better his life from an unimaginable abusive and violent start, and that MD has made great in-roads from that beginning from which he ought to be proud, at this stage in his life’s journey the Tribunal is not satisfied that his is an exceptional case. MD may have greater claim to any exceptional case claim in any future applications should he have some extended period of time between his good endeavours of random acts of kindness, community involvement and volunteerism, and the involvement of Police, Child Safety and allegations of domestic violence issues in his life and when he is more able to articulate a deeper understanding of the impact his own actions have on the overall well-being and sense of security of his own children and children more generally.

    Decision/s

29. In the circumstances, the Tribunal confirms the decision of the respondent, to refuse to cancel a negative notice, dated 1 November 2017 and orders accordingly.

30. Given various material was provided to the Tribunal under a Notice to Produce, including confidential and sensitive Child Safety and Domestic Violence application material, the Tribunal proposed continuing the non-publication order. The respondent agreed with the proposal.

31. In the circumstances, other than the parties to this proceeding, publication is prohibited of any information which may identify the applicant, any relevant complainant or any relevant child, and orders accordingly.