Mundraby v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 465
•16 September 2014
| CITATION: | Mundraby v Commissioner for Children and Young People and Child Guardian [2014] QCAT 465 |
| PARTIES: | Roderick Brendon Mundraby (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML037-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 18 June 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 16 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 21 January 2013 to issue a negative notice to Roderick Brendon Mundraby is set aside and the Tribunal directs that a positive notice be issued. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where change in criminal history Commission for Children and Young People and Child Guardian Act 2000 ss 226, 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Roderick Brendon Mundraby self- represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Mr Craig Capper, Solicitor (in-house) |
REASONS FOR DECISION
On 14 July 2011 Lifeline Far North Queensland filed a paid employee blue card application for Mr Roderick Mundraby.
Mr Mundraby was issued with a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (the Act) on 25 August 2011.
On 10 January 2012 the Commissioner was notified by the Queensland Police Service that the applicant’s police information had changed. This triggered a reassessment of the applicant’s eligibility to hold a blue card under section 237(1)(b) of the Act.
On 21 January 2013 the Commissioner wrote to Mr Mundraby informing him that she had decided to cancel the applicant’s positive notice and issue a negative notice.
On 5 March 2013 the applicant filed an application to review the decision of the Commissioner. The Commissioner is of the view that Mr Mundraby’s criminal history adversely reflects on his eligibility to work with or interact with children in activities regulated under the Act.
The issue for the Tribunal standing in the shoes of the Commissioner is whether any exceptional circumstances exist that it would not in the best interests of children for Mr Mundraby to be issued with a blue card.
The focus of the Tribunal is on the best interests of children and not on what might be in the best interests of the Applicant.
Mr Roderick Mundraby
He had been employed with the Queensland Education Department for seven years counselling indigenous students and helping with literacy. He then worked for Queensland Health as a counsellor. He undertook a number of pilot programs with the Department of Child Safety. He has worked with children with autism using sport to open up barriers. He has had a lot of contact with children in a professional context. He believes he has a strong background to help children with behavioural issues. He has enjoyed being engaged as a counsellor helping indigenous children.
He has an indigenous background and his family is well-known and respected. He is a member of the Mandinglaby Yidinji people. He had a positive upbringing and had no major childhood issues. He is interested in obtaining work as a social worker. He studied at TAFE after school and then went to Griffith University to get a Bachelor of Arts in Psychology. He states that he lived and worked in South Brisbane for a period of eight years during which time he received ongoing treatment for his depression and anxiety which was stable and improving.
He was involved in the Brisbane Metro Touch Association as a Touch Football Referee and doing voluntary work within the schools and mainstream.
In 2009 he found out that his mother had three different forms of cancer and dedicated the next four years to caring for her.
He suffered depression and anxiety from 2009. He sought help for this from the Queensland Mental Health Unit at Southside Brisbane and from Sheridan Street in Cairns. He participated in a program to help and has seen both a private psychologist and a GP for support. He told the Tribunal that he had been receiving ongoing counselling for 2 1/2 years. This has helped him to be calm and relaxed. He has learnt that not everything in life is negative. He was before this afraid to live because he had lost his home in the Brisbane floods and had lost his mother.
In a letter received by the Tribunal on 24 March 2014 he talks about: ‘suffering from Depression and Anxiety through my teenage years’ and sets out in detail symptoms that he was experiencing. He states that after he graduated in 1995 he: ‘had counselling one to one and group sessions with the Mental Health Team in Sheridan Street, Cairns’.
Mr Mundraby talked about the support he has from other family members living in Edmonton. He has a strong circle of friends and supports. The treatment he has received has been extremely helpful and he enjoys a good relationship with the psychologist. He has done a lot of work as a volunteer for example volunteering for 25 years for the touch football association supporting children play sport.
He believes that he is a highly ethical person and is well respected by tribal elders and the wider community. His main goal was to study to become a psychologist and work in the mental health area. He would like to support young kids with a background of depression and anxiety.
He is not actually a drinker but has been pressed into drinking at times. He has learnt from those times that he becomes intoxicated and that he should not drink alcohol. He told the Tribunal that he had not had a drink in the last two years since his last conviction. He had been in contact with ATODS (the Alcohol Tobacco and Other Drugs Service) to seek help and support. He also spoke to the mental health service and they helped him in different ways when exposed to alcohol.
In relation to the wilful damage charge of 15 June 2012 he acknowledged that he had been under the influence of alcohol and had acted in the wrong way.
In relation to the serious assault on 10 September 2011 he had experienced a medical blackout and was taken by ambulance to the Cairns Base Hospital. He acknowledged that his behaviour was a massive mistake and he was very remorseful and had paid the compensation for spitting on the policeman. He confirmed that his actions were wrong. He was sentenced to 18 months’ probation with no conviction recorded. He completed all the requirements of his probation without problem.
He told the Tribunal that he had been gagging because he was having trouble with breathing. He spat on the policeman accidentally when trying to clear his throat. He was taken to hospital on an Emergency Examination Order stayed there for 3 to 4 days. From May 2012 he started a men's health program like AA (Alcoholics Anonymous) that helped him open up about his depression and anxiety. The program ran by the health service was very helpful. He has a case manager who works for the mental health service who he can see that he wants help.
Mr Mundraby confirmed that this had been a very difficult time in his life. He had contemplated killing himself and acknowledged that his conduct would have put more stress on his mother who was unwell. He denied going around in the community with Japanese swords. He said that his mother had sworn an affidavit stating that there were no guns or weapons at their home.
The use of carriage service to menace or harm on 7 January 2004 related to money he had lent to the complainant who refused to pay it back. He confirmed with hindsight that the harassment was out of proportion to the issue.
In relation to the common assault charge of 27 January 2011 he walked into a nightclub disturbance and got pushed. He did not take part in the altercation and was told by his solicitor when charged that there was no evidence that he was involved. There was a video recording of the disturbance showed he was innocent of the charge. The police offered no evidence in relation to the charge.
In relation to the trespass charge on 20 September 2011 that he had been at a staff party and was walking home and tried to open the front door of the wrong house. He had been disoriented by his medication and hadn't eaten properly. The key wouldn't open the door and the police were called. They took him home.
In relation to be common assault on 28 November 2011 he walked into an altercation and accidentally touched one of those in attendance. This person threw alcohol all over him. The CCTV showed that he had not been involved in the altercation and the police offered no evidence in relation to the charge.
He was unable to remember what had happened in relation to the 2012 wilful damage charge.
He told the Tribunal that his studies in psychology had not helped him with his anxiety and depression. This involved training which he had not undertaken with his degree. His experience was that you needed special training to properly treat anxiety and depression.
He was a very private person and wanted to do things in his own way so he made some mistakes before deciding to seek professional help. The pivotal moment for him was being put in hospital. He received advice whilst he was there that caused him to reflect about his life. He can live without alcohol and has supports to help manage his stress and anxiety. He recognises the signs when his depression and anxiety is impacting on his capacity to function.
He has provided a letter from Mrs Caroline Swinton who stated that she had seen: ‘Roderick for about 20 sessions since 22 May 2012… Roderick and I have worked together on establishing stability for his mental health during this time’.
Mr Mundraby in a letter to the Tribunal on 31 March 2014 states that:
for the past 12 months my psychologist has been supporting me by assisting with control of my emotions, thinking and behaviour. I do enjoy the sessions with my psychologist and the treatment that is provided. When I do that have sessions with my psychologist, I often think about the positive situations by considering all my options. I do have a good doctor and a psychologist that I can relate to about an uncomfortable part of my life and I do see both professionals very regularly. And if I do feel too sad to do anything, I will start doing something easy and stop thinking.
Commissioners’ submissions by Mr Craig Capper
There are no convictions of a serious nature. The Applicant should be issued with a positive notice unless in exceptional case exists that it would not be in the best of the interests of children for a positive notice to be issued.
The Court of Appeal in Maher’s[1] case established that the balance of risk factors with protective factors was an appropriate approach in looking at whether or not it was an exceptional case; and secondly that section 226 of the Act is not exclusive in terms of what might be relevant factors.
[1]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 (Maher).
The Applicants criminal history extends from 1995 to 2012: however there are gaps of several years during that period.
The evidence shows that Mr Mundraby suffered from a diagnosis of depression and anxiety. It was exacerbated by the illness of his mother who was diagnosed with cancer; and the emotional upheaval of the Brisbane floods.
The applicant failed to address the concerns that came from his offences in 2002 to 2003 that involved probation and a fine option order.
Mr Mundraby was seen by the Mental Health Service following his admission in to hospital on an Emergency Examination Order. He has not called anyone linked to treatment provided to him. He is not complied with the Directions issued in the matter calling for an independent report.
He sought help following his admission to hospital and continues to receive support. Mrs Swinton could not provide a report for him stating that the mental health areas were outside her competency. That document shows limited understanding of his convictions and fails to address the issues relating to risks to children.
She says in her letter that: ‘Roderick has disclosed episodes of binge drinking which can occur when under extreme stress’.
There is no evidence of his offences having any direct impact on children.
Mrs Swinton says that the applicant has insight into his offending behaviour and its impact on society and children. She sees as protective factors:
identifies the need to reduce stress within his life and is proactive in making the necessary changes in order to reduce the impact of pressures from others (especially family members) on him. Client appears to be a caring person who, to my understanding, has never behaved in a manner which is unsafe towards any children in his care. In terms of preventative strategies to reduce risk offending: client is engaging in lifestyle changes to reduce the impact of family pressure, and is currently attempting to re-establish his independence. Client is able to seek support from various agencies that can provide support for him during periods of significant distress.
There are significant social issues with negative family relationships; unemployment; and grief issues around the death of his mother. There is no evidence as to what is happening is January 2014.
The applicant appears to be a caring person who has made lifestyle changes; and sought to re-establish stable independence.
There was no-one prepared to come and vouch for him and this should be a significant issue for the Tribunal.
He has a strong family network; interacts with his family; gauges in community. However none of these people are there to provide support.
He has some very positive goals and has identified some of the triggers. He should have with his training sought help earlier. He has been seeing a psychologist and has a mental health service case manager.
He hasn't articulated preventive and protective strategies.
He says that he has people in his life – his brothers and church people who drop in to see he is okay. There seems to have been a bit of a struggle for him to live independently.
He seeks to be entrusted to work with the most vulnerable and to seek employment with those exposed to the greatest needs. He wants to work with children in residential care who can't get foster care. He wants to pass on his experience. He needs to keep his house in order. He has to deal with his own issues. There is a danger whilst Mr Mundraby is still trying to resolve his own issues that he is not yet ready to undertake the role that he clearly wishes to undertake.
The Commission is of the view that it is not in the best interests of children for a positive notice to be issued at this time.
Discussion of the evidence
Mr Mundraby held a blue card. What was the basis of the cancellation? A change the applicant’s criminal history. The Commissioner was advised by the Queensland Police Service that there had been changes in the applicant's criminal history. There were five charges period 22 September 2010 to 3 September 2012. The circumstances surrounding the Trespass Charge has been adequately explained by the applicant. The court did not record a conviction and the fine of $100 shows that it was treated as a minor breach. The Tribunal puts little weight on the Common Assault Charges on 22 September 2010 and 3 September 2012 as on both occasions police offered no evidence and the applicant put forward a reasonable explanation in relation to the events that occurred on those dates. It is clear that Mr Mundraby was represented and had intended contesting the charges. The Tribunal puts little weight on either of these charges in the circumstances.
The Serious Assault charge which involved spitting on a policeman and resisting arrest needs to be looked at more seriously. The Tribunal accepts that Mr Mundraby was unwell at the time. Dr Lim wrote to Carolyn Swinton on 7 September 2012 stating that: ‘I have seen Roderick today and I feel that he is a mess... He has been getting suicidal ideations. His mood is down. He has panic attacks regularly. He has anorexia, low-energy, insomnia and poor memory’. He is remorseful for his actions and accepted that he acted in the wrong way. He was placed in hospital for two or three days confirms that he was unwell. This offence seems to be the turning point for the applicant. He completed his probation without any breaches; stopped drinking alcohol; sought out supports; and took steps to change his life.
It appears to the Tribunal that there are extenuating circumstances surrounding this conviction and this might be the reason why court imposed “no conviction” and imposed 18 months’ probation. The use of probation supports the notion of rehabilitation.
The Tribunal does not place a great deal of weight on the other four charges period from 2010. The two common assault charges led to no evidence been offered. The trespass charge was a minor offence and the wilful damage resulted in a conviction and a $300 fine which is at the lower end of the scale for such offences. The serious assault was a more serious charge however the tribunal is of the view that there are extenuating circumstances around conviction and the nature of the penalty points to rehabilitation being focus of the court. Mr Mundraby has stated that he holds the police service and ambulance service in the highest regard. The Tribunal does not accept that the evidence points to a propensity to violence and serious threating behaviour. This seems to be the major concern of the Commissioner. The Tribunal having heard the evidence does not accept contention.
Mr Mundraby accepts that when he drinks alcohol he risks becoming intoxicated and puts himself at risk of making poor decisions. The Tribunal accepts his evidence that he has ceased drinking alcohol. He has a history of binge drinking when stressed so his abstinence shows insight and restraint and confirms that there his plans to manage stress have been successful.
Mr Mundraby has demonstrated insight into the factors behind his offences. He has made changes to his lifestyle and sought treatment to manage his depression and anxiety.
Mr Mundraby has a good relationship with his GP and psychologist both of whom he sees regularly. He also has a good relationship with his health services case manager.
Mr Mundraby believes that he is managing his illness better because of the courses which he has undertaken and the support that he has put in place.
What is an “exceptional case”?
The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Commissioner 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 Commissioner reasonably considers to be relevant to the assessment of the person.
The object of the Act is to ‘promote and protect rights, interests and wellbeing of children in Queensland’. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an exceptional case exists, ensure that the safety and wellbeing of children is its “paramount consideration”.[2]
[2]Commissioner for Children and Young People and Child Guardian Act 2000 s 155.
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”.[3] The Appeal Tribunal in considering the decision in Maher[4] 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.[5]
[3]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[4][2004] QCA 492 at [28].
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [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, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
The Tribunal is of the view that there are a range of protective factors that minimise the risk factors. The protective factors include: stable and positive childhood; a supportive network of family and friends; long history of working; excellent education including tertiary qualifications; long history of working as a volunteer for touch football Association; insights into his illness and need for treatment; insights into his offending and willingness to change lifestyle and use treatment and supports to minimise risks; remorse for his actions around the serious assault; and willingness to act in an ethical way.
The Tribunal is of the view that there are risk factors. These include the following: his mental state deteriorating as a result stress; non-compliant with treatment; or binge drinking alcohol. Another factor is potential conflicts with family members. The Tribunal agrees with the Commissioner that Mr Mundraby has a long history of depression and anxiety he must keep in check. Mr Mundraby’s mental state has clearly improved with the treatment and support that he has put in place. The events around the serious assault have led to Mr Mundraby making significant changes in his life. These have included abstaining from alcohol and seeking out support and programs that have been designed to help with depression and anxiety. The fact that he has a good relationship with those treating him and has seen this psychologist on some 20 occasions points to the supports being a sustainable process to ensure that his depression and anxiety is managed appropriately. The Tribunal is of the view that the protective factors that minimise the risks.
The Tribunal also notes that none of his offences involved harm to children but is of the view that the level of violence within the community generally has a negative effect on children and is to be abhorred in our society.
The Tribunal notes that it was recommended to Mr Mundraby on several occasions that he provide an independent psychological report. The reality is that such reports while extremely valuable are also very costly and beyond the means of an applicant reliant on Social Security benefits. The Tribunal was disappointed by the lack of a report but will not hold that against the applicant in the circumstances.
The Tribunal was disappointed that the applicant did not call witnesses that could attest to his change in lifestyle and other protective factors. This was an almost fatal mistake for the Applicant because the Tribunal prefers in these cases to see collaboration of the applicant's accounts from other sources. This can be provided by psychological report or by people who know the adult and can attest to the changes that have occurred or otherwise talk about how the applicant has addressed the issues in his life.
The Tribunal is of the view that an exceptional circumstances does not exist. The Tribunal is of the view that the protective factors minimise the risk factors.
The Tribunal accordingly grants the Application and overturns the Commissioner's decision.
The safety and wellbeing of children is the Tribunal’s paramount consideration in determining whether an exceptional case exists for the purposes of the Commission Act. For the reasons referred to, the Tribunal determines that the appropriate order is that the decision made by the Commissioner to issue a negative notice be set aside and a positive notice issued.
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