MJK
[2017] QCAT 230
•29 June 2017
CITATION: | MJK [2017] QCAT 230 |
PARTIES: | MJK |
| v | |
| Director General, Department of Justice and Attorney-General | |
APPLICATION NUMBER: | CML183-16 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 28 April 2017 |
HEARD AT: | Townsville |
DECISION OF: | Member Johnston |
DELIVERED ON: | 29 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Director-General, Department of Justice and Attorney-General of 20 June 2016 to issue a negative notice to MKJ under the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside as the Tribunal finds there is no exceptional case. |
| FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of the decision to issue a negative notice – where pattern of violence and propensity to react aggressively in situations of conflict and where there is a breach of a Domestic Violence Order – whether not in the best interests of children to issue a positive notice Queensland Civil and Administrative Tribunal Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 |
APPEARANCES: | |
APPLICANT: | MJK |
RESPONDENT: | represented by Ms Haatsari Marunda |
REASONS FOR DECISION
Background
The Applicant MJK applied for a review of the decision by the Respondent made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’).
On 18 February 2016, the Applicant lodged an application with the Respondent, pursuant to the Act to be issued with a positive notice and blue card.
On 20 June 2016, the Respondent refused the application and the Applicant was issued a negative notice pursuant to the Act.
The Applicant was provided with written notice of the decision, the reasons for the decision and the relevant review information.
On 13 July 2016, the Applicant filed an application to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) to review the Respondent’s decision that the Applicant’s case was an “exceptional case” which would not be in the best interests of the children for the Applicant be issued with a positive notice and blue card.
The matter proceeded to a hearing on 28 April 2017 in Townsville. The Tribunal gave the parties an opportunity to provide further written submissions after the hearing.
The Tribunal identified at the start of the hearing the following key issues that needed to be addressed:
a)MJK’s criminal history which appears to have a pattern of violence and propensity to react aggressively in situations of conflict;
b)The involvement of excessive alcohol consumption in his offending, suggesting the Applicant lacked the ability to manage his alcohol use appropriately;
c)Poor anger management control leading to anti-social behaviour suggesting that the Applicant did not have anger management skills and the ability to act protectively;
d)The Applicant’s offending behaviour involved acts of domestic violence against his wife so the circumstances around the Domestic Violence Order and the breach of the Order will need to be addressed; and
e)Any other relevant considerations outlined in section 226 of the Act.
The use of the Psychological Report by Terri Kelly
There is one preliminary point that the Tribunal wishes to deal with. The Applicant prior to the hearing of this matter submitted a Report by Terri Kelly Psychologist dated 13 January 2017 to the Registry in support of his case.
The Applicant and the Registry did not provide a copy of the Report to the Respondent before the hearing. The Tribunal gave the Respondent’s Representative a copy of the Report before the hearing commenced.
The Applicant was not able to contact Terri Kelly as she had left her previous place of employment and had not provided future contact details.
The Tribunal, after MJK had given his evidence in chief adjourned the matter so that the Respondent’s Representative could read the Report and obtain any further instructions about the admissibility of the Report. The Tribunal told the Respondent’s Representative that she could object to the admission of the Report on the basis that the Report writer was not available cross-examination in accordance with the Tribunal’s Practice Directions.
When the matter resumed the Respondent’s Representative told the Tribunal that in relation to the Report, “in fairness to the Applicant the Report should be admitted into evidence and submissions made in relation to the weight to be attached to the Report”.
The Tribunal adjourned for a lunch break to give the Respondent’s Representative ample time to familiarise herself with the contents of the Report.
The parties to the hearing all referred to the material in the Report when the hearing resumed. The Respondent’s Representative questioned the Applicant on the information contained in the Report. The Respondent’s Representative in summing up referred to answers that had arisen out of questions drawn from the material in the Report.
The Tribunal is of the view that the Report was used extensively to question the Applicant in relation to his case for a positive notice.
The Respondent submits that it would be unfair to the Respondent if findings were made favourable the Applicant on the uncontested evidence contained in the Report and would be an error of law. The Respondent quotes the case of Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86.
The Respondent submits that the Tribunal should only give the Report negligible weight.
The Applicant believes that a considerable amount of weight should be applied to the Report. The Applicant submits that he forwarded the material to the case manager at the Registry who had passed on other material to the Respondent.
The Applicant submits that prior to the commencement of the hearing a copy of the Report was given to the Respondent and the Tribunal allowed the Respondent time to seek advice on whether or not to allow this Report as evidence. After consultation, the Respondent did allow this Report to be admitted as evidence and was allowed the Respondent time to read this Report. The Tribunal and the Respondent asked questions based on the material contained in the Report.
The Tribunal distinguishes the case of Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86 on the basis that this case is different in the following ways:
a)The Respondent when given the opportunity to object to the material being admitted chose to admit the Report into evidence;
b)The Respondent used the material contained in the Report to question the Applicant;
The material in the Report was used both by the Respondent and the Tribunal to test the evidence that the Applicant was giving in support of his case; and
c)The Applicant was present and available for cross-examination.
The Tribunal’s position is that having admitted the material into evidence and the material used for cross-examination it would be unfair to give the Report negligible weight. The actual weight given to the Report will be discussed further in these reasons where appropriate.
MJK
MJK acknowledged that his history might not look good but that he had learned from his mistakes and made changes. He told the Tribunal that his earlier charges had involved the consumption of excessive amounts of alcohol, which had impaired his judgement, which led to very poor choices. He indicated that he had addressed his alcohol problem by ceasing the consumption of alcohol since the 2013 offence. He has a glass of champagne with his wife to celebrate on special occasions but otherwise does not drink. He submitted that his lengthy abstinence constituted a positive protective factor. He accepts that the consumption of alcohol is “not good for me”. He acknowledged that he had made poor decisions when he was intoxicated and that his actions would have hurt other people for which he was sorry. MJK told the Tribunal that he had matured as a person.
MJK had recognised after his early offences that he had an issue that he needed to address before he got into more trouble. He arranged to see a counsellor in the Lidcombe, Sydney over a number of weeks. He stated that he did six weekly sessions between an hour and a half and three hours. He stated that through this counselling he became aware that alcohol played a major part in his thoughts and actions. He told the Tribunal that he had been introduced to the drinking culture as a young man playing rugby league. Where many of the players drank excessively and alcohol was provided freely to players by the sponsors. MJK states that he is now, who he is and that he does not need to prove himself physically or verbally.
MJK says that he now does not feel under pressure when playing sports to drink alcohol. He can attend barbecues and other social functions without the need to drink alcohol. He is quite comfortable in saying “no” when offered alcohol. MJK repeated his earlier comments that his behaviour had harmed himself, those affected by his conduct and by the people who witnessed his behaviour. MJK told the Tribunal that he was deeply regretful for the harm that caused others. MJK told the Tribunal that he had hurt his partner and that children would have been indirectly affected by his actions.
MJK in relation to the offence with the security guard acknowledged he had acted aggressively and was alleged to have been obstructive and uncooperative with police. He accepts that his behaviour was wrong and that he should have acted differently. He acknowledges that this would also impacted upon his partner who would have been quite worried when he did not return home that night to her. He told the Tribunal that when he was released from the watch house that he went straight home to apologise to his partner. He also made sure, when the children got up that he told them that he had done the wrong thing and tried to teach them to act differently when they grew up. He explained the effect of alcohol in contributing to making poor decisions.
When the Respondent referred to the long gap in 2003 and 2013 where there had been no offences. MJK indicated that he had cut his drinking down. He stated he had not been involved in any altercations or acted out violently in any other situations during this period. MJK told the Respondent that he had sought counselling in 2003. This had identified alcohol as an issue. He stopped binge drinking and reduced his intake of alcohol. He set firm limits on his alcohol consumption commenting that he accepted that drinking outside that limit posed risks.
When the Respondent put to MJK that his behaviour between 1998 in 2002 and in 2013 was anti-social behaviour, MJK accepted that his behaviour was unacceptable. He said that alcohol was at the root of his earlier offending. When he drank too much his judgement was impaired. He addressed his behaviour by seeing a counsellor in 2003. He told the Tribunal that the counsellor had given him insight into his behaviour and he recognised that excess alcohol contributed to bad thinking. He was of the view that the counselling had helped him grow as a person. He submitted to the Tribunal that the absence of any incident between 2003 and 2012 was a great achievement. He had learnt that when he lost control he acted aggressively and made poor decisions.
MJK told the Tribunal that alcohol was not a factor in relation to the offence that lead to the Domestic Violence Order. He told the Tribunal that his behaviour towards his partner was completely and utterly unacceptable. He remains mortified that he could have acted that way. He acknowledges that a young child was witness to this behaviour. He sought counselling after this event and talked through the issues with his wife.
MJK made two important points in relation to the offence that led to the Domestic Violence Order. The first is that he uses his recollection of this incident as a form of protection. Whenever he feels that, he is getting out of control he thinks of this event and uses that as motivation to manage his emotions. He does not ever want to act that way again. The second point that MJK made was that he was under a lot of stress at the time. This included financial worries; work issues; the abuse of his partner’s sister’s children and that these all combined to trigger this event.
MJK told the Tribunal that these dynamics have changed. The financial worries have gone away. There has been action taken in relation to the abuse of his partner’s sister’s children. He has improved his attitude to his studies. His relationship with his eldest daughter has improved. He has reflected on his actions. He still accepts however that there can be no excuse for his behaviour. He is remorseful for the hurt that he caused and accepts that he should have acted in a different manner. He told the Tribunal that he had spoken to his partner about understanding each other’s needs. He now understands that when he is frustrated that he needs to take a break or rethink his approach. He uses his great remorse over his actions as a protective factor. He never wants to behave that way again. He and his wife both know to walk away before disagreements escalate.
MJK submitted to the Tribunal that his actions in supporting his partner’s sister demonstrated his focus on child protection. He took action to remove the children from harm. He provided financial support to his partner’s sister. The partner of his wife’s sister has been charged and is before the court.
In relation to his first offence, he was attending a wake and had consumed too much alcohol. He admitted to being rowdy and out of control. He accepts that his actions were inappropriate. He has addressed the risk of further antisocial behaviour by controlling his consumption of alcohol.
In relation to his offence regarding the campus security guard. He repeats his earlier comments that he acted inappropriately under the influence of alcohol. He accepted that he made a poor decision and that this would have affected other students who looked up at him as a role model. He has addressed the risk of further antisocial behaviour by controlling his consumption of alcohol. He states that setting limits on his alcohol consumption was the first step. The second step was deciding that alcohol did not need to be part of his life. He accepts that he is responsible for managing his own behaviour. He submits that by abstaining from alcohol he has addressed concerns about his previous antisocial behaviour. He submits that the absence of any anti-social incident between 2003 and 2012 demonstrates that he has successfully made this change.
MJK in relation to the Domestic Violence Order says that he was very stressed time. There was a range of stressors including: he was under pressure completing assignments at university; his wife was pregnant; there were issues of concern regarding abuse of his partner’s sister’s children; they were under financial stress; his partner was under work stress; and he had been arguing with his partner. He told the Tribunal that it was a perfect storm, he exploded, and they both became very angry at each other. He said words to her that he regrets. She took the view that he had crossed the line and complained to the Police. The Police were concerned that he had threatened to harm his wife’s unborn baby, and a Protection Order was appropriate and hence the Domestic Violence Order to which he consented. He told the Tribunal that when he looked at the statement his wife had provided in support of the Order and it was a kick in the guts. He had not meant to threaten his wife and their unborn child in this manner. He deeply regrets what he said and made it clear to the Tribunal that he actually had no intention to be violent towards his wife or their unborn child. He accepts however that the words were hurtful and damaging. He said that the situation was very toxic and he is remorseful for his conduct, which made things much worse.
When asked by the Tribunal how did he express that remorse he indicated that he had apologised to his partner and promised that he would never act like that again. He uses his abhorrence of his behaviour as a protective factor promising himself never ever act like that again. He has talked to his children about his behaviour and educated them on the right way to act in such circumstances. He has told his children that his actions were inappropriate. He told the Tribunal “he had sucked up for weeks doing things for his wife and being ever apologetic”.
MJK in relation to the breach, which happened two years later, says that a dispute arose between his wife and himself over disciplining one of their children. He was of the view that his daughter had to clean up a mess that she had made in her room. His wife was of the view that the teenage daughter would not undertake the task so she took steps to clean up the room. They had a disagreement over the daughter taking responsibility. The boys had left soap on the tiles, his partner slipped, and they both ended up on the ground. He views the incident as a trivial incident. His daughter called her aunt who called the police. He and his partner were shocked when the police arrived. He accepts that they had an argument but denies that his wife was concerned by the incident. He says that he tried to walk away from the incident but that his wife had become hysterical and had become aggressive so that he had not been able to walk away. He says that he slapped his partner to get her to act appropriately. He says his actions in that regard unacceptable. He said that his wife and he were pouring a glass of water with the police knocked on the door. He told the police that his wife had approached him and that he had grabbed her and they both slipped over. He says that none of the children was privy to the event. His daughter was in her room door closed and the boys were elsewhere in the house.
MJK told the Tribunal that he was charged with the breach. When he returned home all the children together and talked to them about what had happened. He accepts that his wife was in a vulnerable position and that he has a responsibility to protect her. He indicated to the Tribunal so far as his daughter was concerned about the treatment of her mother he offered her and the other children access to counselling. What he learnt from this was that he had to be very careful in relation to his behaviour. He recognises that both he and his partner can become frustrated and stressed and that they needed to deal with that in a constructive manner. They know that they need to use strategies such as taking a break and walking away. They know that they need to lower the levels of their voices and to remain civil in their conversations. He told the Tribunal that he used this event to build a closer relationship with his wife and children.
When challenged about his failure to use the strategies he had developed following the Domestic Violence Order he told the Respondent that he was taking steps. He had made improvements after 2013 and he again took stock after the event in 2015. He says that it has been a process involving several steps in terms of his improvement. He told the Tribunal that he continued to grow as a person. He now knows that he needs to be very careful in relation to his behaviour towards others. He now knows that he needs to actively pursue the strategies he has developed. This has helped him greatly thinking about other people’s perceptions and the effect his actions have on others. He now tries to take into account the interests of other people when making decisions. He is now more willing to listen to the points of view of others. He has developed insight into the steps that lead to inappropriate behaviour. He is aware effect of his behaviours on the people he is dealing with and the surrounding people. He thinks that he is a different person. He says that was a great step forward for him to think about the effects of his behaviour on others. One of the reasons why he attended the psychologist was because he wanted to continue to grow as a person.
MJK told the Respondent that there had been around six hours involved in the preparation of the Report. The psychologist had recommended a couple of books in relation to dealing with marital relationships. He told the Tribunal that he had not acquired the books but was supportive of him and his wife undertaking counselling as they thought that would be very helpful. MJK indicated that if Ms Kelly had recommended he undertake an anger management program he would have done so. He found the time with the psychologist very helpful. It helped him look at his life history and gain a better understanding of the issues that he had faced and the relevant factors surrounding the incidents that had him into trouble. He gained more insight into the effect of his actions on the family dynamics, what his wife MC, and the children had experienced. He felt that it was good that he was not drinking; that he had learnt to take steps to improve his life; and he had developed insight into the effect of his actions on other people. He had demonstrated his willingness to seek support to address his problems firstly in seeking counselling and secondly in approaching the psychologist for assistance.
The Respondent asked MJK about the triggers to his alcohol consumption. He told the Tribunal that there were two main things namely peer pressure to engage in drinking and that everything was free. He said that there was a culture and environment that led to binge drinking. He had no self-control when he was younger and it is taken a long time for him to develop as a person.
The Respondent put it to MJK that there was a pattern of managing conflict with aggressive behaviour. He was asked what strategies he had put in place to deal with conflict. MJK told the Tribunal that he now recognised when he was becoming frustrated that he sets limits in relation to his behaviour. These events have changed his view. He now recognises that aggression is inappropriate behaviour and that he needs to step back and reapproach the issue in a different way. He accepts that he may need to walk away.
The Respondent asked MJK how he dealt with stressors. MJK told the Tribunal that he likes to meditate and take time to unwind and release stress. He has spent a lot of time talking with MC on an open level. This has led to growth in their relationship and they are now much better able to talk to one another. He enjoys spending time with his children. He knows that he can take a walk if he needs to unwind.
MJK indicated to the Tribunal that relationships required constant work and that he is keen to move forward and not repeat his past mistakes. He has a good relationship with his parents who are supportive. He plays sport with people of the same age group; he is able to seek either counselling or psychological support that is necessary.
The Respondent told MJK that past behaviour was a good predictor of future behaviour. MJK told the Tribunal that he had learnt from his mistakes and that there was significant gaps in his history that supported his argument that he had made changes to reduce the risks of a recurrence of anti-social behaviour. The Domestic Violence Order was not alcohol-related. He learnt from those charges that he needed to behave differently. He was now much more aware effect of his actions on other people. MJK told the Tribunal that he thought that he could continue to grow as he matured as a person. He was continuing to try to better himself.
The Respondent referring to page 8 of the Report noted that the psychologist stated that MJK thought of himself in a preferable light. MJK responded by saying that he recognised his faults and that he works to address his problems. He stated that he had fully disclosed his history to the psychologist. He acknowledged that with some of his earlier offences he was under the influence of alcohol and that his recollection of the events might be a little different from those outlined in the police information.
The Respondent noted that the Report stated that MJK was less likely to undertake a course and could see little need for change. MJK told the Tribunal that he had come a long way in terms of how he had been. He sees himself in a quite better position but remains willing to take steps to improve himself. He has gained insight into his actions and believes that this is a big step forward. He now appreciates how his actions can affect other people. He believes that he has taken steps to improve himself as a person. He accepts that in 2013 he had a lot on his mind and that he reacted inappropriately. He has developed strategies to prevent a re-occurrence of this type of behaviour.
The Respondent referring to the Report noted that the psychologist was of the view that MJK was of minimal risk of expressing his anger inappropriately. MJK told the Tribunal that he did suppress his feelings so he has found ways to deal with anger and stress appropriately. He has improved his ability to communicate with his wife. He is aware of the risks and has strategies to prevent escalation and becoming frustrated and angry. He knows that he can walk away. He is now better able to share the point of view of others.
MJK told the Tribunal that he had a very healthy relationship with his wife. He is open with her and they regularly talk about the children and other matters affecting their relationship. MJK indicated to the Tribunal that he had dealt with the range of stressors and was in a much better position. His financial position is better; he is healthier; he sets a positive example for his children; he plays cricket; attend social functions and his life is in a much better position. He has addressed his problem with excess alcohol. He works hard to instil positive values in his children.
The Respondent referred to his clinical profile paragraph 3 of the Report, which referred to him as being impulsive. MJK acknowledged that he could be impulsive. He might say for example say to the children “let’s go out do something” without planning or understanding his wife’s wishes. He might go Sky Diving or do other riskier activities.
The Respondent put it to MJK that he was unsympathetic in relation to the feelings of other people. He responded by saying that yes he had not properly appreciated his wife’s circumstances when he abused her for being late. MJK told the Tribunal that he had been able to learn from his mistakes and that he had developed insight effects of his behaviour on other people.
The Respondent put it to MJK that he had anger control problems. MJK responded to this by saying that from his past he expressed physical and verbal anger quite regularly under the influence of alcohol. He has found ways in which to manage his feelings. He was quite willing, if the psychologist saw anger management as a problem, to undertake further counselling to address the issue. The psychologist however was satisfied with the steps and strategies that he had adopted to manage his anger.
MC
MC told the Tribunal that her partner is now more likely to walk away if he was concerned that their discussions might escalate. She described her husband as an easy-going person who had dealt with lots of stressful situations. He had learned from his mistakes. He was able to make new friends and was excellent at social functions.
In relation to the charge that related to the campus security official, it was the last week of university and he had finished his exams. He had left his bag in one of the student’s rooms and gone off to the University bar. She was worried when he did not return home before midnight. She was worried sick. When he returned home in the morning, he told her the story.
MC told Tribunal that she had seen changes in him over time; he was calmer, easier to talk with, more able to have a discussion with; and more family oriented. In relation to the consumption of alcohol, she confirmed that he did not consume alcohol except on special occasions. She told the Tribunal that he had otherwise not consumed alcohol for at least two or three years.
The Respondent asked MC whether her husband had learnt to deal with anger management. She told the Tribunal that he now behaves differently and it was much easier for them to communicate with each other. In relation to the Domestic Violence Order, they had sat down together and discussed what had happened. She knows that this was a stressful period for them both. She told the Tribunal that it had been very stressful dealing with problems of her sister. This has now been resolved and will no longer be an issue.
In relation to the circumstances around the Domestic Violence Order, he was annoyed that she was late picking him up and they ended up having an intense argument. He made the threat to kick her in the stomach. This crossed a line and she told him that it was unacceptable to make threats of that sort. She did not believe that he would physically do this; however, he made the threat, which for her went too far. She reported him to the police and he was placed under the Order. She now feels that it was a horrible time, they had a bad argument they were both responsible, both guilty of behaving in the wrong way.
MC relation to the circumstances surrounding the breach of the Order stated that they had been having an argument over their daughter’s responsibility to clean up after herself. She decided that she would clean up her daughter’s room. This led to a lively discussion. This was a very stressful time and discussion got to an explosive point. She had grappled with him and they both fell on the floor. Within 20 seconds, they had a constructive discussion. Her daughter was not anywhere near them and they were quite surprised the police turned up.
MC described her husband as being an excellent father that helps the children with their homework and supports them in many other ways. She told the Tribunal that they have an agreement whereby either of them can say, “stop” and either of them can “walk away”. They make sure that their discussions are constructive and civil. They ensure that their conversations did not escalate. She has seen the Reasons document in relation to his refusal for a positive notice. They have discussed the Reasons and his history. She told the Tribunal in relation to professional assistance that her sister is a psychologist and that her husband is happy to talk to her sister when he needs help. She says that he has learnt to let go and control himself. In relation to the incident with the security guard, she thought that the security guard could have handled things better and the matter could be resolved without it escalating. Obviously, he could have handled it better too. In relation to the Domestic Violence, she sought support from the Women’s Centre and spoke to her sister as well. She told the Tribunal that there have been no other issues other than those in 2013 and 2015. She was of the view that he was able handled his anger appropriately. He has demonstrated his ability to handle stress the way that he dealt with problems that her sister had with her abusive partner.
MC told the Tribunal that she had no concerns whatsoever regarding her husband’s parenting skills and relationship with the children. In relation to other children, their eldest boy plays football and her husband is happy to provide guidance and encouragement to all the other children. MC described her husband’s strengths as being able to patiently discuss things with children when she has had enough and cannot deal with the children. When her daughter was being bullied, she spoke with MJK and he handled the matter very carefully and sensitively. He has the patience and ability to connect with children. He has very good social skills.
MC told the Tribunal that she has no concerns with her husband working with children and supports his application for a blue card stating that he has the skills and abilities to have a positive impact on children and their well-being.
MJ
MJ has known MJK and his family for more than three decades. She fully supports his application for a positive notice. He has been an extremely loyal friend to her children and she has known him all his life. She believes that it is fabulous that he has chosen to teach children. In March 2003, MJK lost a family member to whom he was extremely close. He suffered for some time and it became apparent that with his grief at the time it had become a challenge for him to communicate with other people. She was aware of the incident at the Bowls Club where he was refused service because he had a few too many drinks. He was asked to leave, a dispute ensured, and the Police were called. Unfortunately, due to the circumstances at the time, things got a little hot under the collar and MJK was charged. The whole episode was certainly blown out of proportion. All of MJK’s friends and family firmly believe that this was definitely very unusual for him and subsequently rallied behind him. He did undergo some counselling and support and this made us all mindful of how grief can affect us. He has never been a person to resolve conflicts through violence; in fact, he has always been an active member in the sporting community including coaching the Little League children. She believes that he is now in much better control of himself. He understands the role of parent and the importance of speaking to children appropriately. She is aware that he had a problem with excess alcohol and that he has taken steps to address this as an issue. She considers that he is a good role model as she has seen how he treats her grandchildren. He is tolerant, patient and attuned to the children’s needs. She has never had any concerns whatsoever with MJK’s involvement with children. He has a very positive engagement with children. She confirmed that she had read the Reasons document and was aware of MJK’s criminal history. She supported MC and MJK after MJK had been charged with the Domestic Violence Order. She was aware that MJK had sought professional assistance in relation to his alcohol behaviour issues. She is happy for him to talk to her when he is stressed. She is only a telephone call away. She told the Tribunal that MJK had learnt from his mistakes and worked hard to establish better lines of communication and work through family issues.
Psychological Report by Terri Kelly
Ms Kelly was aware that the psychological evaluation was for his suitability for child-related employment. MJK advised Ms Kelly that he had been issued with a Negative Notice to hold a Blue Card under the Act. MJK provided her with a copy of the Reasons document. The Report writer advised MJK that there was no guarantee that the Report would be supportive of MJK.
Ms Kelly in relation to MJK’s attitude to his alcohol related offences noted that MJK acknowledged that “his previous behaviour was ‘disgusting’ and that “I’m appalled by my own behaviour”. Ms Kelly noted that charges in 2003 provided him with the motivation to seek help. MJK told her that he had “sought counselling and discussed things” that contributed to his excessive alcohol consumption.
Ms Kelly in relation to the 2013 conviction noted that MJK not only acknowledged he had assumed excessive amounts of alcohol but that he should have left when told to do so.
MJK told Ms Kelly that he had reduced his consumption to one glass of wine on occasions such as wedding anniversaries. He knows that “alcohol does nothing for me”. He reported to Ms Kelly that he was confident in saying ‘no’ when at parties and social functions. He acknowledged that he had alcohol problem that he needed to address. He has done that by abstaining from alcohol over the last few years.
The Tribunal notes that the information contained in the Report is consistent with the account MJK, MC and MJ all gave to the Tribunal. The Tribunal accepts this part of the Report as being consistent with the evidence presented as part of the Applicant’s case.
The Tribunal notes that Ms Kelly: “Based on the results of the Alcohol Use Disorders Identification Test AUDIT, MJK’s self-report of his current alcohol intake is considered to be at a ‘Low Risk” level. The Tribunal is of the view that this finding, which is based on MJK’s self- reporting, is consistent with the account of MJ and MC gave in evidence, which is that MJK has abstained from alcohol for a number of years.
Ms Kelly in relation to formal test results noted under the heading of Validity Scales the following:
The Personality Assessment Inventory (PAI) is a comprehensive psychological evaluation instrument, which assessed a range of symptoms and clinical syndromes, general personality functioning, and interpersonal behaviour. The following interpretive comments are based on the PAI profile scores and should be interpreted in the context of the overall report rather in an isolated manner.
MJK’s scores suggest he attended appropriately to item content, responded in a consistent fashion to similar items and that the number of uncompleted items was within acceptable limits.
With respect to positive pressure management, MJK’s pattern of responses suggests that he tends to present himself in a constantly favourable light, and as being relatively free of common shortcomings to which most individuals will admit any appears somewhat reluctant to recognise faults of problems in himself.
This tendency will lead him to minimise, or perhaps even be unaware of, problems or other areas where functioning might be less than optimal. It is considered that he is unlikely to have made no overt attempts to portray himself positively, but rather that his responses reflect the way desired to appear, rather than reflecting his true experiences.
With respect to negative impression management, there is no evidence to suggest that the respondent was motivated to portray himself in a more negative or pathological light then the clinical picture would warrant.
When put to MJK he told the Tribunal that he has a positive image of himself but is well aware that he has faults and is working to improve himself.
The Report in relation to Anger Management states that MJK scores were in the “low – moderate range. For men, the propensity to express anger verbally is closely related to expressing anger physically”. Ms Kelly goes on say as follows:
He has a low to moderate score on the S-Ang/V subscale and reports feeling similar to most people about expressing his anger verbally during the testing situation. Thus, there may be an occasional tendency to express anger verbally, but in this instance; the person is not unduly disturbed by these feelings.
The S-Ang/P subscale measures the intensity of the feelings to express anger physically that the respondent reported during the testing situation. MJK score is in the low – moderate range.
His low to moderate score on the S-Ang/P subscale reflects the fact that he reports little or no inclination to hit someone or to break things. Since he reports moderate levels of internal and external expression of his anger, he is unlikely to act on any feelings of expressing physical violence towards other people property.
Ms Kelly in relation to MJK’s anger control says that:
this person’s anger control-out is in the low range. Such scores are indicative of an individual who maintains poor control over verbal or physical expressions of anger compared to most people. A score in this range suggests that this person has a great deal of trouble preventing himself from expressing his anger outwardly. She concludes the section by saying: his scores are within normal limits in terms of his overall anger expression and control. On some occasions, he may express his anger externally and on other occasions, he may suppress it.
MJK gave one example of how he was able to manage conflict. He reported that his partner and his partner’s daughter had a poor relationship with her ex-partner, which was quite acrimonious. He explained how they chose to not to respond by engaging in retaliative communication. MJK reported that this had markedly decreased the level of this hostility, minimise feelings of acrimoniousness, and experiences of conflict.
The Tribunal accepts Ms Kelly’s section dealing with anger management and control to the extent it flags anger management control as an issue that MJK needs to address.
Ms Kelly in her opinion states that:
MJK acknowledged that he has a significant issue with alcohol and in the past engaged in immature and antisocial behaviours. It is considered that his relationship with MC and his decision to change careers was a formative in moving towards the development of a mature adult identity.
There are a number of risk factors that are no longer present. That is:
MJK’s alcohol consumption;
Acrimonious and hostile relationships with MC’s ex-spouse;
MZ’s difficult/antisocial behaviours during her teenage years;
Financial stress soars of providing for extended family members education.
Further, MJK reports that he and MC are more aware of signs and cues of escalating negative emotions and more responsive to each other’s needs. Importantly, MJK appears to understand the link between strong emotions and impulsive behaviours – be that excessive alcohol use or inappropriate expression of aggression.
A minimal risk may exist, as MJK may tend to avoid or suppress the expression of anger, rather than use healthy and effective expression. MJK has developed the insight to recognise physiological cues of anger, and to ‘walk away’ when this occurs. To build upon these skills, MJK is likely to benefit from specific education on effective conflict management and assertiveness...
The Tribunal accepts Ms Kelly’s statement of risk factors on page 12 and 13. This accords with the factors outlined by the Tribunal at the start of the hearing with the inclusion of MC’s acrimonious relationship with her ex-spouse and the difficult relationship he had with his daughter MZ.
Relevant law to be applied by the Tribunal
The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
The decision under review is whether the Applicant’s case is an “exceptional case” in as much as the presumption prescribed by section 225 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an “exceptional case” exists.
Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an “exceptional case” exists.
What is an “exceptional case”?
The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
The decision under review was whether the case is an “exceptional case” such that the presumption prescribed by section 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should be issued to Applicant.
In order to not issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of such, that an “exceptional case” does exist.
The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Respondent 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 Respondent reasonably considers relevant to the assessment of the person.
The Tribunal must, in exercising its review function under the QCAT Act, in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its “paramount consideration”.[1]
[1]The Act, s 8.
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”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher ,[3] 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.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3][2004] QCA 492, [28].
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].
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, which dictate that it would not be in the best interests for children for a blue card to be re-issued.
The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
The Tribunal must be satisfied that this is an exceptional case of harm to children. The onus is on the Briginshaw standard (on the balance of probabilities) to show that the there is such exceptional case of relating to harm to children.[5]
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
Director General, Department of Justice and Attorney-General Submissions
Ms Marunda referred the Tribunal to the Statement of Reasons provided with the decision.
Ms Marunda noted that the object of the Act was to promote and protect the best interests of children.
Ms Marunda submitted that the Western Australian decision of Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) 28 WAR 125 provided that the negative impact on an applicant that was not a factor to be taken into account.
The Tribunal must make the correct and preferable decision. There are no serious charges so a blue card should be issued unless an ‘exceptional case’ occurs wherein such a decision would not promote the welfare and best interests of children.
Ms Marunda told the Tribunal that s 226 (2) of the Act indicates some of the factors that are relevant. These include the Applicant’s criminal convictions (see the Statement of Reasons at paragraph 5.4):
The Applicant’s criminal history consists of a number of convictions over a period of approximately 17 years. These include multiple offences relating to public disorder, results in a recent contravention of a Domestic Violence Protection Order.
The applicant has two convictions for common assault in 2003 whereby assaulted two separate complainants. These assaults were unprovoked. Please also noted that at the time, there were numerous witnesses, including young families when they attended the scene applicant was restrained from fighting other people, which included a number of bystanders. During incident, police further reported that the applicant was also verbally abusive.
In relation to the Public Nuisance offence from 2013, the applicant again behaved in an aggressive manner and when the security guard attempted to move the applicant off-campus, he spat at them. The applicant’s conduct was witnessed by numerous residents as they were disturbed by the applicant’s behaviour.
The applicant also recently breached a domestic violence order in March 2015. The particularly aggravating features of the applicant’s breach are as follows:
The material indicates that at least one child was also named in the order; meaning that the child was in need of protection from domestic violence by the applicant;
The breach occurred in a domestic setting;
The complainant’s daughter appears to have been in the vehicle when the applicant and the complainant commenced arguing;
This argument escalated into a physical alteration when the family reached their family home and this distressed the child.
Ms Marunda rightly notes that there is evidence of multiple potential negative effects to children who witness domestic violence, including problems with aggressive and inappropriate behaviour. Evidence also suggests diminished emotional and physical availability, which may inhibit healthy emotional development.
Ms Marunda noted that because none of the charges were serious offences that presumption was that a positive notice should be issued.
Ms Marunda argued that there was behaviour that had affected children in a direct and indirect way in this matter.
Ms Marunda in relation to positive protective factors noted the following:
a)MJK has shown remorse;
b)MJK has a significant and appropriate level of insight; and
c)MC and MJ both gave evidence of having no concern about working with children.
Ms Marunda in relation to risk factors noted the following:
a)MJK had not undertaken any anger management courses;
b)MJK had not engaged in ongoing treatment as recommended by Ms Terri Kelly;
c)MJK had not properly identified the triggers for his behaviour and would need to take an anger management program;
d)MJK remains a risk when put in a situation of conflict that he may reoffend; and
e)MJK has not undertaken recommendations of the psychologist.
Ms Marunda referred to the transferability of the blue card.
Ms Marunda submitted that the decision of the Director General should be confirmed.
Applicant’s submissions about Protective factors
MJK says that since approximately 10 June 2013, he has made a commitment to abstain from alcohol, apart from a single glass of champagne he has with his wife once a year on their anniversary. He chose to do this as he could understand and recognise that alcohol played a negative role in his life and was one of the main factors contributing to his inappropriate behaviour and impaired him from making good decisions.
In February 2003, he first sought professional help from a counsellor and attended counselling for a period of 6 weeks. He again sought professional help in January 2017 from which a psychological report was produced and given in evidence during the hearing.
The psychologist Terri Kelly who prepared the psychological report, submitted as evidence in the hearing states in her recommendations “there is no evidence to suggest that MJKs behaviour represents a current risk to children”. Terri Kelly also states in this section “those major risk factors related to past behaviours have been addressed and are effectively managed”.
He has greater insight into his actions, and how they affect not only the people directly involved, but also people that may have witnessed those actions.
He has greater insight in relation to how his actions can have an effect on people in a secondary level. For example, when he was put in to the watch house for his actions in 2013 for drunken disorderly this had an effect on his wife and family who were not involved or witnesses to these events but this had a domino effect on them due to his absence from home causing distress and worry for them.
He and his family moved to Townsville with the sole purpose of protecting and making sure his wife’s sisters children were safe from events happening in their life, which was touched on during the hearing.
He has played a positive influence in the lives of younger students and their education during his time at university and was looked upon as a role model and a person that gave support and guidance.
He has also helped with his under 6’s football team and has been a positive role model and helped wherever possible.
He has shown and demonstrated regret, remorse and he is ashamed of his past actions. Someone that has shown and demonstrated these emotions and acted upon them by seeking help is less likely to reoffend compared to someone that does not show any of these emotions.
MJK has a great network of family and friends that he can call on for support when needed. This gives him access to a large group of people he can talk to, ask for advice from or who can help or lend support when needed.
He has reduced or removed a number of stress related issues in their lives such as financial stress, work related stress, university related stress, the stress relating to the situation of what was happening to the kids of his wife’s sister, family stress relating to their eldest daughter and the father of their two daughters.
MJK states that he has the tools and management skills now to be able to recognise the cues and triggers. When negative stress or increasing negative emotional levels are rising, he is able to step back from a situation and reassess or even step away completely and remove himself from that situation before things even have the potential to escalate. This is one of the tools he has learnt to manage conflict in his life.
MC and he are now able to suggest to each other that if one of us thinks that negative emotional levels or stress levels are rising in the other person or themselves that we need to stop and walk away from that conversation or let the situation calm down and reassess to come back later if needed. He is also more open to compromise with my wife to make sure both our needs and wants are dealt with and heard. He also applies this not only with MC but also in all his interactions with people when necessary.
As stated from his witness MJ who gave evidence she would completely trust him in care of her grandchildren and would have no hesitation in leaving them in his care.
The two witnesses MC and MJ both stated as part of their evidence that he had been a positive role model, a good father and have always acted in an appropriate manner around not only their children but also the children of others.
MC also testified that not only had he been a good role model for his children, but he had also played a positive influence in the lives of his family and friends’ children. She stated that when he was attending residential school for university, their family friend’s children were struggling with school and were getting poor grades and through the help, guidance, advice offered and connections, that he made drastically improved the results and efforts that those children made. Taking them from D - C grade children that were looking at dropping out of school to A grade students that become re-engaged with school and becoming life-long learners.
Another positive factor was further educating himself by going to university so that he could provide a better life for himself and his family. This also set the example to his family that education is important and that it is never too late to educate yourself or improve your situation.
In relation to the breach of the DVO, some weight needs to be given to the Judges findings and his punishment. As no conviction was recorded and a small monetary fine of $250 this implies that he believed this was at the lower end of the scale in these offences. It must be noted that in no way is he trying to down play this event or condoning his poor behaviour, he was only stating that he may have thought it was on the lower end of the scale of offences.
MJK believes that on reflection of his past regressions he now has a greater insight into how his actions have affected people both directly, indirectly and even at a secondary level. He believes that this history can be turned into a positive and used as a tool to help in his understanding and advice giving to others to prevent them from making the same mistakes.
He has volunteered to attend as an administrator to events such as FOGS and university days to encourage school-aged students to further their education and encouraging them to understand the importance of an education.
He would also like to point out that there is no pattern to the behaviours in his past as there is a ten-year break where no offences occurred at all. There is also a small gap of two years between the two offences regarding domestic violence. He would also like to point out that there have not been any further offences since 2015.
The Respondent has stated in point 28, sub-point (g) that the incidence of violence has escalated over time. He submits that there is no evidence to suggest that there is an increase in the level of violence over the duration of his offences. This is reflected in the findings of the judges of the court as no convictions were recorded and only low-level monetary fines imposed implying these are on the lower end of the scale relating to each offence protective factors.
Discussion of the evidence
The Tribunal set out at the start of these Reasons the key issues that needed to be addressed. The first of these was MJK’s criminal history appears to show a pattern of violence and a propensity to react aggressively in situations of conflict. The first point to make in relation to MJK’s offences is that the penalty that has been imposed is at the lower end for such offending. Magistrates have imposed penalties ranging from a fine of $50 to a fine of $250 and a bond for 12 months. In relation to the most modern offences namely those in 2013 being the public nuisance charges MJK was fined $200 and no conviction was recorded. In relation to the contravention of the Domestic Violence Order, a fine of $250 and no conviction was recorded. The Tribunal notes these penalties are clearly at the lighter end of the spectrum for such behaviour. The Tribunal’s view is that these penalties reflect behaviour that is at the lower end of the offending scale. This is a factor in the applicant’s favour that his behaviour has been seen by the court at the lower end for such behaviour.
The second point is that these offences have been spread over 17 years and included a gap of 10 years between 2003 and 2012. The Tribunal does not accept the Respondent’s contention that there is a pattern of violence and a propensity to react aggressively in situations of conflict.
The third point is that excessive alcohol consumption contributed to MJK’s earlier offending by impairing his judgement. MJK took steps to address this issue by seeing a counsellor. This led to reducing his alcohol consumption and setting boundaries. This appears to be successful until the 2013 offence. When he went outside the boundaries he had set, and made some poor decisions that lead to a night in the watch house. MJK has addressed this failure by deciding to abstain from the consumption of alcohol. His partner and his friend MJ corroborated MJK’s evidence. His psychologist Terri Kelly also accepted this position of abstinence.
The fourth point is that MJK has developed insight into his offending and the effect of his actions on others including secondary victims. The Respondent accepts that MJK has developed significant and appropriate insight. This is a significant protective factor. The Tribunal notes further that MJK has shown genuine remorse for the harm that he has caused. It was clear to the Tribunal whilst giving evidence in relation to the offence the subject of the Domestic Violence Order that he was absolutely mortified by his conduct. MJK’s evidence was that he used his abhorrence for this offence as a protective mechanism. Whenever he feels that he is losing control he reflects back on his conduct and says to himself that he cannot ever repeat the behaviour and he takes steps to de-escalate the discussion or walk away. This is one example of several steps that MJK has put in place to reduce the risk of inappropriate behaviour. The Respondent accepts that MJK has shown remorse. The Tribunal is of the view that MJK has used this behaviour as a tool to prevent a recurrence of the inappropriate behaviour the subject of the Domestic Violence Order.
The Tribunal is of the view for these reasons that MJK has addressed the concerns over his antisocial behaviour.
The Tribunal agrees with his psychologist Terri Kelly for the reasons set out above that he is a low risk of further violence or inappropriate social behaviour. The Tribunal is satisfied that MJK has matured as a person and that he has learnt to address issues around his offences.
The second issue for the Tribunal was MJK’s excessive alcohol consumption. This has been largely addressed by comments on the steps that he has taken above. The Tribunal accepts the evidence of MJK, MC, and MJ that MJK has become mostly abstinent from alcohol. He will have a glass of wine socially on special occasions but is otherwise abstinent from alcohol.
The Tribunal notes that Terri Kelly came to the same view namely that MJK has addressed his alcohol consumption.
The Tribunal is of the view that this issue has been addressed and that MJK is at low risk further offending under the influence of alcohol.
The third issue for the Tribunal was in relation to poor management control. The Respondent also raises this as an issue. The Tribunal’s view in relation to this issue is that MJK has undertaken counselling, has received support from his wife’s sister who is a psychologist and has seen Terri Kelly the psychologist. MJK’s evidence was that he would have undertaken an anger management course if Ms Kelly had recommended that he do so. The Tribunal notes that Ms Kelly did not recommend that he undertake such a course. Ms Kelly was of the view that a minimal risk exists.
The Tribunal accepts MJK’s evidence that he developed insight into his actions and he learnt from the professional support he received, strategies to address his offending behaviour. MJK was able to demonstrate insight into his offences. He was able to outline strategies that he had adopted. He gave examples of how he was able to manage conflict in a positive way. MJK talked about the way in which he had improved communication with his partner. How he had developed insight into the effects of his actions on others and was more in touch with their feelings.
The Tribunal accepts that MJK has matured as a person. MJK has taken responsibility for his actions and taken steps to minimise the risk. MJK has accepted responsibility for his actions. He has acknowledged that he has acted inappropriately. He has sought counselling and developed strategies to minimise the risk. Terri Kelly psychologist was satisfied that he was a low risk relation to his anger management.
The fourth issue for the Tribunal was in relation to the Domestic Violence Order. The Tribunal agrees with the Respondent that domestic violence can have very harmful effects on children. The Tribunal notes in this regard that MJK has acknowledged his fault, accepted responsibility and demonstrated insight and remorse for the harm caused.
The Tribunal accepts MJK’s evidence that he is very ashamed of his conduct in relation to the circumstances that led to the Domestic Violence Order. The Tribunal accepts MJK’s evidence that he uses this experience as a protective tool to prevent a reoccurrence of this behaviour. The Tribunal is of the view that this is a strong protective factor.
The Tribunal also notes that MJK has both sought counselling and reflected on his behaviour. He has developed strategies to prevent this happening again. He has improved his communication with his wife. MJK has also organised for their children to come together and he has told them that his behaviour was wrong. This shows that he has acknowledged wrong and he has told his children about acting differently in those circumstances. He has been teaching his children positive approaches to disagreement. MJK has also offered his children counselling. These are the actions of a person, who is concerned for well-being of his children. MJK has attempted to minimise the harm caused to his children by his actions.
MC speaks highly of her husband’s role in the family. He has an excellent relationship with their children. She gave an example of her husband supporting their daughter very sensitively at a time when she was being bullied at school.
MJ talked of his positive engagement with her grandchildren and indicated she could see no issue with him working with other children in a positive way.
The Tribunal also notes that Ms Kelly was of the view on the last page of her Report that “a minimal risk may exist as MJK may tend to avoid or suppress the expression of anger, rather than use healthy and effective expression. MJK has developed insight to recognise physiological cues of anger and to “walk away” when this occurs”. Under the heading Recommendations on the same page she states:
there is no evidence that suggests that MJK’s behaviour represents a current risk to children. Those major risk factors related to past behaviours have been addressed and are effectively managed (i.e. alcohol misuse, unhealthy peer relationships, conflict in family relationships, and high financial burden). There is a minimal risk of re-offending based on static historical factors, however, while MJK remains committed to abstinence from alcohol use and interested in enhancing and maintaining positive healthy family and peer relationships, the risk is minimised.
The Tribunal agrees with Ms Kelly that with the current supports, MJK’s insight, good family relationships and peer relationships that there is a minimal risk. The Tribunal for the reasons set out above believes that MJK has addressed this issue.
The Tribunal does not accept the Respondent’s contention that MJK constitutes a risk because he has not undertaken a formal anger management course. The Tribunal notes firstly that Ms Kelly did not recommend that MJK undertake an anger management course. Ms Kelly has articulated her reasons for not doing so in her Report. She determined that there was a “minimal risk” that MJK might express his anger but these risks were minimised because of his insight and ability to recognise physiological cues of anger and his strategies to deal with conflict.
The Tribunal notes secondly that MJK has shown the ability to seek out professional advice when he needs that support. The Tribunal accepts his evidence that he saw a counsellor in 2003 that helped him develop insight and led to him to stop binge drinking and set limits on his alcohol consumption. This appeared to work, as he had no further incidents until 2013 when he went outside his boundaries and consumed an excessive amount of alcohol. MJK has reflected on this charge and make changes to his life by effectively abstaining from alcohol. The Tribunal finally notes that MJK has sought advice from his partner’s sister who is a psychologist.
MC told the Tribunal that she was not concerned about her partner’s behaviour that they had improved their communication and put in place strategies to prevent an escalation of any disputes.
The Tribunal is of the view that MJK is managing the risks, that with a healthy relationship with his partner and positive peer relationships, and strategies in place to control his behaviour he has addressed the issue of anger management and it is not necessary for him to undertake an anger management course.
The Respondent contends that MJK has not undertaken the steps recommended by Ms Kelly in her Report. MJK told the Tribunal that counselling was expensive but that it was something that he and his wife were willing to do. The Tribunal notes that Ms Kelly’s findings were not predicated on MJK undertaking the recommendations in her Report. The Tribunal does not accept that this constitutes a risk as submitted by the Respondent.
The Tribunal found the following protective factors:
a)MJK has acknowledged that he acted inappropriately;
b)MJK has a significant and appropriate level of insight;
c)MJK has shown genuine remorse for his actions;
d)MJK has matured as a person and is now taking into account the feelings of others;
e)MJK has shown a willingness to seek professional support and reflect on the advice he has been given;
f)MJK has made a decision to abstain from alcohol;
g)MJK has set up strategies to address his past behaviour and manage and control his anger;
h)MJK has worked on communication strategies with his partner and family;
i)MJK has a wide support network;
j)MC and MJ both gave evidence of having no concern about him working with children; and
k)MJK and MC gave examples of him managing conflict appropriately.
The Tribunal also finds that MJK’s abhorrence of his behaviour around the offence leading to the Domestic Violence Order and his use of his feelings about that behaviour to prevent a re-occurrence as part of his relapse prevention plan is a strong protective factor mitigating against any such further behaviour.
The Tribunal found the following risk factors:
a)The consumption of excessive amounts of alcohol is a risk as this impairs MJK’s judgement;
b)MJK is vulnerable to a cluster of stressors including financial; family and work; and
c)MJK is vulnerable to acting out his anger and reacting outside of the strategies that has adopted.
The Tribunal viewed MJK as an honest and credible witness and accepted the evidence, which he gave. The character evidence that was given by his wife and MJ impressed the Tribunal. The Tribunal placed weight on that evidence.
There is ample evidence of the positive way the Applicant interacts with children. The Tribunal sets this as an important protective factor.
The Tribunal is satisfied in undertaking this weighting exercise that it has been established on the balance of probabilities that the case against the Applicant is not an “exceptional case”, which would harm the welfare of children and young people.
The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:
a)his criminal history as a whole;
b)the balance between risk and protective factors; and
c)the strategies, which the applicant has put in place to address his offending behaviour.
MJK will need to work hard implementing the strategies. The fact that he has abstained from drinking alcohol for a number of years is an indication that he is committed to the changes that he has made to his lifestyle.
The Tribunal in the circumstances above does not accept Respondent’s position as set out in paragraph 5.4 of the Respondent’s Reasons document that the evidence establishes an “exceptional case”.
The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
The Respondent was probably right to refuse the Applicant at first instance based on the information that was before the Respondent. The Tribunal has had the advantage of much more evidence than was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal is satisfied that this is not an “exceptional case”.
The Tribunal notes the decision of his Honour Justice Carmody in RPG v Public Safety Business Agency [2016] QCAT 331 where he finds that the Tribunal can only in these circumstances set aside the decision of the Respondent and remit that back to the Respondent. The practice of the Respondent is to then take into account the reasons and decision of the Tribunal.
Orders
The decision of the Director-General Department of Justice and Attorney- General dated 20 June 2016 to issue a negative notice to MKJ is set aside as the Tribunal finds that there is no “exceptional case”.
The practice in accordance with the decision referred to in paragraph 162 of his Honour Justice Carmody is that the matter is remitted back to the Respondent to take into account the reasons and decision of the Tribunal.
0
7
1