MW v Commissioner for Children and Young People and Child Guardian
[2011] QCAT 726
•12 September 2011
| CITATION: | MW v Commissioner for Children and Young People and Child Guardian [2011] QCAT 726 |
| PARTIES: | MW |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML001-10 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 25 March 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Mr Mark Johnston, Member Ms Kathy Schmider, Member |
| DELIVERED ON: | 12 September 2011 |
| DELIVERED AT: | Cairns |
ORDERS MADE: | 1. That the decision of the Commissioner for Children and Young People and Child Guardian made on 2 July 2004 to issue a negative notice to the applicant MW is confirmed. |
| CATCHWORDS: | Suitability for Blue Card – previous harm to children – whether an exceptional case exists – assessment of unacceptable risk of harm |
APPEARANCES and REPRESENTATION:
| APPLICANT: | MW self represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Mr Geoff Woodberry |
REASONS FOR DECISION
BACKGROUND TO THE PROCEEDINGS
The relevant legislation that applies is the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”) as amended and the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
The current Act is the legislation that came into force on 1 October 2010 [Reprint 8B], and this Act is to be applied.
Application history
On 29 May 2009 an application was lodged by the Applicant to cancel a negative notice which had been issued to the Applicant on 2 July 2004.
The Queensland Police Service provided a copy of the criminal history[1] recorded against the Applicant, and Police Court Briefs (QP9s) detailing the particulars of the relevant offences recorded on the Applicant’s criminal history.
[1] Defined at Schedule 7 of the Act.
By letter dated 3 July 2009, the Applicant was invited to make submissions about his criminal history which had been obtained by the Commissioner. The Applicant did not provide any further submissions other than those provided to the Respondent in November 2003.
On 8 December 2009 the Applicant was advised that the Respondent had decided to continue the negative notice previously issued to him.
On 5 January 2010 the Applicant filed for a review of the Commissioner’s decision with the Queensland Civil and Administrative Tribunal (“the Tribunal”)[2], within the timeframe provided for under section 353 of the Act, and section 33(3) of the QCAT Act.
[2] Under section 354 of the Act.
On 11 February 2010, the Tribunal conducted a compulsory conference in the matter. The matter was subsequently listed for hearing on 21 May 2011. The Applicant subsequently made application for adjournment of the hearing and the Tribunal granted that application. The matter was then listed for hearing on 18 and 19 August 2010. However the Tribunal subsequently ordered that a further compulsory conference be held on 18 August 2010. The Tribunal subsequently ordered that the hearing of the matter be adjourned for four months. The matter was listed for hearing in Townsville on 25 March 2011.
Relevant legislation
Jurisdiction
Jurisdiction for the Tribunal to hear and determine this matter is established under sections 6 and 9; and Chapter 2, Part 1, Division 3 of the QCAT Act, and section 354 of the Act. Under section 19(c) of the QCAT Act the Tribunal stands in the place of the original decision-maker, the Commissioner. However, under section 28(3) of the QCAT Act the Tribunal is able to consider fresh material not previously available to the Commissioner, and is required under section 28(3)(e) to ensure it has, so far as is practicable, all relevant material before it.
Pursuant to section 312 of the Act, the Respondent was notified of the Applicant’s police information. The Applicant has convictions for offences other than a serious offence[3] as defined under section 167 of the Act. Accordingly, section 221(1)(c) and 221(2) of the Act provide that the Commissioner, and upon review the Tribunal, must issue a positive notice to the Applicant unless satisfied that the Applicant’s case is an exceptional case in which it would not be in the best interests of children to issue a positive notice.
[3] Defined at section 167 of the Act.
The decision making process
In this matter, section 226 of the Act provides that the decision maker must have regard to the following in making a determination:
(a)in relation to the commission, or alleged commission, of an offence by the person-:
(i) whether it is a conviction or a charge; and
(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)when the offence was committed or is alleged to have been committed; and
(iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person’s mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 or 338;
(e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
The term exceptional case is not defined in the Act, and case law has considered its meaning, as detailed under paragraph 5 of the Respondent’s Reasons document, to “…take it out and beyond the ordinary circumstances reasonably expected to occur”[4], and must be “…of the nature of or forming an exception; out of the enduring cause, unusual, special”[5]. This view was supported by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor[6] (Maher’s case).
[4] In the Marriage of Sandrk(1991) 104 FLR 394 at 399-400.
[5] Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288.
[6] [2004] QCA 492.
Further, the (former) Queensland Children Services Tribunal held, in its decision of OAA Re [2006] QCST 14, that in determining whether an exceptional case exists, the principles considered in the family law jurisdiction can be transferred to the child protection jurisdiction, and consideration is to be given as to whether the Applicant presents an ‘unacceptable risk of harm to the children of Queensland’[7].
[7] The test.
Harm is defined in the Act to ‘have the same meaning given in the Child Protection Act 1999, section 9’[8], namely:
[8] Schedule 7 of the Act.
(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a)physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Maher’s case, the Queensland Court of Appeal, at paragraph 30, adopted the submission that:
“... the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.”
There is no ‘onus’ of proof on either the Applicant or the Respondent. There is a wealth of case law that supports this proposition with the leading authority being McDonald v Director General of Social Security[9].
[9] [1984] FCA 57; (1984) 1 FCR 354.
Importantly, the Tribunal is bound by section 360 of the Act to make a determination on review upon the principle that the welfare and best interests of children are paramount. This paramount principle is also encompassed and reinforced under sections 5, 6, and 155[10] of the Act, that also bind the Tribunal in its decision making, and it is to this consideration that all others must yield[11].
[10] Section 96 of the unamended Act.
[11]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at para 29; Chief Executive Officer, Department for Child Protection v Grindrod (No2) [2008] WASCA 28 at para 70.
Any hardship or prejudice suffered by the Applicant is irrelevant to this paramount principle[12]. Further, “…any benefit which might be thought to flow to children by having access to the Applicant’s knowledge, experience and flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued”[13].
EVIDENCE
Documentary evidence
[12]Chief Executive Officer, Department for Child Protection v Scott(No 2) (2008) WASCA 171 at 23.
[13]Grindrod v Chief Executive Officer, Department for Community Development[2008] WASAT 289.
Criminal history
The particulars of the Applicant’s criminal offending are summarized under paragraph 2.2 of the Respondent’s Reasons document. The Tribunal comments on the most relevant offences in the following paragraphs.
The Applicant was charged with breaching a Domestic Violence Order on 17 May 2000. It was alleged by the complainant, the Applicant's de facto wife, that he had breached the Domestic Violence Order. She alleged that the Applicant had become aggressive with her and had ripped a wooden door to the children's room off its hinges. The Applicant had then left the house with the two youngest children. Police observed that the children's bedroom door was off its hinges and lying on the floor. The Applicant was convicted and fined $250.
The Applicant was charged with assault occasioning bodily harm (two charges); and common assault arising out of events on 4 June 2003. It was alleged that the Applicant had used a strap to discipline his three children aged 5, 6 and 8. The eldest child A stated that she had been hit by the Applicant with the strap and had suffered bruising to her back and hip. This complainant told police that the Applicant had used the strap to discipline her and her younger sister and younger brother for misbehaving and swearing on the school bus the previous day. She stated that she had attended the school nurse earlier the following day to have an ice pack placed on the bruise on her back due to the pain. The Applicant took part in a recorded interview and stated that he had hit all three complainants with a belt which he had folded up twice to make it smaller but in effect harder in order to use it on the complainant children. He admitted to telling the eldest child not to discuss her bruises to anyone. The Applicant was convicted and fined $500 and no convictions were recorded.
Applicant’s oral evidence
He had intensive counselling following his conviction. He was in denial at the start but ended up accepting his actions were wrong. He has changed the way in which he responds to disciplining his children. A few months before the events of 4 June 2003 he had approached the Department of Child Safety for help as he was having difficulty managing his children's behaviour. He did not want to smack his children but things got out of control. He went to the Police and explained that he had disciplined the children. He told the policemen that he was sorry for his actions. He was shocked when they charged him. This has been a wake-up call for him. The Applicant undertook a parenting course and has developed new strategies for dealing with the behaviour of his children.
He told the Tribunal that the relationship with the children's mother was an abusive one and her mental illness impacted upon her behaviour. In the period leading up to these offences he had tried to manage the pressures that had been building up. He told the children's mother that he didn't want her involved with children as she created too many problems.
After his conviction he got involved with the organisation Headspace and with Lifeline. He has also worked with Relationships Australia and Red Cross were involved for six months. The support of these agencies has helped him to develop strategies, to implement solutions; and better interact with his children. His children have responded very well to the changes that he has made. He has a very good relationship with the school to which the children attend. He is on a pension and working with Centrelink to do the best he can for his children.
The Applicant told the Tribunal that he has three children in his care: child B in primary school; child C is six years of age; and child D is eight years of age. He has another child A who was 16 years of age and is no longer living at home. She had developed the habit of hitting the younger children. He made it quite clear to her that this was not an acceptable form of conduct within their home. This child gets on to Facebook and disparages him.
He pointed out that as part of a family law matter the Federal Court Magistrate had looked at the reports and decided to give him care of the children.
In relation to the offences he admitted he folded the strap and lined up the children on the lounge and smacked each of them. He stated that he cried whilst he did this. His evidence was that he had struck the children three or four times. He has realised that he has done the wrong thing. He did not need the law to tell him that.
In terms of the impact of the offences on his children they would have been affected at the time. However they wished to stay with him and it hasn't been a big impact on their lives. When asked whether he had any other strategies he said that the timeout worked out really well.
In relation to the anger management course which he had undertaken he had developed the ability to recognise that if stress builds up to seek help. Otherwise he knows to “let it go”. He has a routine at night whereby he sits outside and enjoys a coffee. He has talked to the councillors and has set his own priorities.
He was unable to explain what went wrong with his relationship with his daughter Child A. She had turned her mobile off; changed her name; and wrote on Facebook that she doesn't want any more to do with him. He told the Tribunal that he had spoken to the school and with the police and did not know what else to do. In relation to his previous relationship with LL she treated her child more favourably than his children so he has said to her that their relationship would not work if that happened and that she needed to move on.
He enjoys painting houses because painting makes things beautiful.
MG
MW is his brother. He only recently moved up to Townsville. He saw MW on almost every day and that MW provided well for his children. He has never seen MW yelling at his children. When he does discipline the children he talks to them and has not reacted in a physical way. For example he will send a child to his or her room for a timeout. He was not aware of his brother's criminal history. He conceded in cross examination that MW does at times raise his voice and yells. He has however never seen MW stressed out and out of control. He told the Tribunal that if he saw MW hitting one of the children he would tell him to stop. He knows that is wrong. His view was that hitting children is completely unacceptable. He has been living in Brisbane the last 20 years so as not had much contact with family members. MW was upset that his daughter was physically abusing the other children. She left the family home and as far as he knows she made her own arrangements. MG is unaware of his brother’s criminal history relating to the abuse of his children. He stated that if his brother had charges relating to the abuse of children, he would not support his brother’s application for a positive blue card.
WJ
She met the Applicant through junior soccer and has known him since 2003. Their respective families spend time together and she has seen him caring for children both his own and hers. He does not physically discipline his children. He uses timeout. He does not verbally attack them. She has seen no issues whatsoever with his management of his children. She was not aware of his criminal history in detail. She was aware that he been charged with assaulting the children in 2003. She was aware that his daughter Child A had physically assaulted her father and herself. The Applicant had tried to talk to her without success. She was assaulting the younger children and he told her that she could not do that. MW told her that if she couldn't follow the rules she would have to leave. He had been in touch with the girl's mother over his concerns and this behaviour had been a problem for quite a long time. He had tried to get outside support but Child A moved out last year and stopped going to school. She was aware that he had been involved with Relationships Australia and had attended program Headspace a year ago. She has lost contact with the child.
WL
She was very grateful to be able to give evidence on his behalf. She has never had any concerns with him with his children or with other people's children. He is an active volunteer who cares about his children. His efforts to help the school have been extraordinary. He has undertaken an enormous amount of volunteer renovation work in the school during school holidays. He has painted the entire building inside and outside. MW has taken time off work to do this at no charge to the school. He passionately cares for his children. She came to the school in 2005 and got to know him as his children had a few behavioural issues. He has been very supportive and she couldn't fault his contribution. In relation to his criminal history she was not aware of his criminal history relating to the abuse of his children however this would not alter her viewpoint as she had heightened awareness of any child protection concerns. His history does altar her perception of his risk to children. She had not seen any evidence to raise any concern since she had started in 2005. He has learned the children respond to what is happening at home. He will talk to her about issues and ask what to do. She can see he is trying to do the best for the children.
She has seen him frustrated but has never seen him lose his cool in school grounds. In relation to his oldest daughter Child A he called her to say that he was having some issues but he didn't seek her advice. She stood by a comment that she had made in her written reference. He has made a mistake but is trying hard not to make a similar mistake.
Respondent’s Submissions
Risk to children and young people
The key factors relating to the nature and relevant of the offences and alleged offences to child related employment are as follows:
(a)As demonstrated by his prior offences, the Applicant is an inappropriate person to engage in child related employment. Despite the passage of time, the Applicant’s prior offences remain relevant to determining whether or not he should be issued with a positive notice. The passage of time has been held to not of itself constitute an exceptional case[14];
[14] (26 June 2006).
(b)The Applicant’s criminal history raises significant concerns about his propensity to resort to serious violence when faced with conflict or circumstances which makes him feel aggrieved;
(c)The Applicant's convictions in 2003 and two counts of assault occasioning bodily harm and one count of common assault involving the Applicant assaulting his children aged 5, 6 and 8 years with a strap after they had misbehaved and causing severe bruising to those children which required medical treatment[15];
[15] (26 June 2006).
(d)The fact that the Applicant's conduct resulted in convictions from assaulting his children demonstrates that the court was satisfied that his conduct exceeded lawful chastisement and were committed out of anger;
(e)The Applicant abused his position of trust and authority over his children by assaulting them in a way which exceeded the bounds of lawful chastisement;
(f)The Applicant told at least one of the children who had been injured not to tell anyone that he had assaulted her and thereby attempted to conceal his actions, further demonstrating a lack of insight or remorse for his actions;[16]
[16] CCYPCG 038.
(g)The Applicant failed to seek appropriate treatment for the children’s injuries after becoming aware of their extent, thereby exacerbating the harm inflicted upon the children;
(h)The Applicant’s actions caused at least one of his children to suffer further harm through the development of emotional problems[17];
(i)The Applicant demonstrated a lack of insight into the effects of his physical abuse on his children. In TAA Re,[18] the former Children Services Tribunal relevantly stated that; “The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effects of his actions on others…”
(j)The Applicant demonstrated an inability to control his anger and frustration when faced with misbehaviour of his children, thereby raising concerns about the Applicant’s suitability to work with children where similar issues may arise; and
(k)The Applicant’s criminal history demonstrates that the Applicant fails to exercise proper judgment and restraint when faced with conflict and/or stress.
[17] CCYPCG 046.
[18] TAA Re, (2006) QCST 11 (26 June 2006).
The Applicant, through his criminal offending, has exercised poor judgement which impacts upon his current capacity to exercise cogent decision making, an important consideration for someone engaged in regulated employment.
Summary of risk factors
Based on the information before the Respondent at the time, the following risk factors are evident:
(a)Whilst it may be argued that the passage of time is relevant to the consideration of risk, the passage of time, of itself, is not itself an exceptional circumstance, but rather is solely relevant to the consideration as to the likely materialisation of risk, although not determinative of that consideration;[19]
[19]Grindrod v Chief Executive Officer, Department for Community Development, supra, at clause 20.
(b)There is no current independent and/or expert evidence that the Applicant has developed adequate and effective anger management techniques and strategies to address his propensity to respond with violence;
(c)There is no evidence that the Applicant possesses any insight and/or remorse into the consequences of his violent offending. There is no current evidence that the Applicant has addressed the triggers which have previously led to his violent offending or that he is now capable of exercising proper judgment and restraint when faced with conflict or circumstances where he feels aggrieved and/or frustrated;
(d)The Applicant has demonstrated that he has a propensity for resorting to violence when confronted with conflict and in circumstances where he feels aggrieved and/or frustrated;
(e)There is no expert or other independent evidence, nor evidence from the Applicant himself, concerning whether any conflict resolution techniques proposed to be employed by the Applicant are, or whether they are likely to be, effective; and there is no current, independent evidence to demonstrate that the Applicant, should he be faced or confronted with a situation of conflict or a situation in which he is frustrated, would not react violently.
Although the evidence suggests that the Applicant has contributed to children’s sport in the past by using his coaching skills, any benefit to children is offset by the risk posed by the Applicant being issued with a positive notice. “Any benefit which might be thought to flow to children by having access to the Applicant’s knowledge, experience and flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued.”[20]
Oral submissions
[20]Grindrod v Chief Executive Officer, Department for Community Development, supra, at clause 33.
The Respondent
The Respondent argued that the remorse shown by the Applicant for the harm that he had caused was of a kind that was only partial. What the Applicant seemed to be saying was that when he was hitting the children this brought back bad memories of his experience as a child. Whilst he did regret hitting his children his main remorse related to bad memories. This is not proper a remorse for the harm that he has caused his children.
The Respondent argued that whilst the Applicant had expressed some insight that his actions in relation to his daughter demonstrated a total lack of insight into child protection. His purported reasons for making his daughter no longer welcome were for the protection of the younger members of the family. He did not take any adequate actions to protect his daughter. In essence the Applicant told his daughter to leave. He did not know where she had gone or who she was with. His evidence is that he still doesn't know where she lives and who she is living with.
His attitude seems to be do as I say or get out. He has exercised a strong hand at home. The Respondent accepts that the kids are remaining at home and love their father. He doesn't demonstrate any real insight into the effect of his actions on the children. He has minimised the harm visited on his children by blaming his ex-wife. He has denied the extent of the injury caused to his eldest daughter. The belt was doubled up to hurt more. He failed to seek appropriate care after the event. His actions could not be described as fatherly. The injury was sufficiently apparent on the following day for the teacher to report the injury to the police. His daughter received psychological harm as a consequence of his behaviour. There is evidence of the Applicant attending a number of sessions at Contact House. He has developed techniques for managing stress and anger management. However he still lacks insight into the effect of his actions on his children. This is highlighted by his comment: all that I did was smack the kids – but I got custody.
The (former) Children Services Tribunal stated at paragraph 97 of its Reasons:
“The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.”
The Respondent has taken into account the positive contribution made by the Applicant to the school. The concern of the Commissioner is that the Applicant has caused harm to children. The Respondent has concerns about the way in which the Applicant has dealt with his eldest daughter. The Applicant does not rule out entering into future relationships. Whilst the Applicant states that he can manage stress by taking timeouts it appears that there was a build up prior to the assaults upon his children. Coupled with a lack of real genuine remorse for the harm that he has caused to his children and the lack of insight into the consequences of his actions constitutes a significant material risk. He has developed some strategies but the way in which he has dealt with his daughter shows that the limited strategies he did possess have failed. While it can be difficult for a parent with a child demonstrating challenging behaviour, his daughter is only 16 years of age and he doesn't know where she is living or who she is with. This is not taking sufficient care for his daughter who as the primary parent has a responsibility for her care and safety.
The Respondent relies upon the totality of the material before the Tribunal, including the Reasons document accompanying the negative notice issued to the Applicant and respectfully submits that the Tribunal can be satisfied to the requisite standard that the Applicant’s case is an exceptional one such that it would not be in the best interests of children for him to be issued with a positive notice and blue card, and that the original decision by the Respondent to issue a negative notice to the Applicant ought to be confirmed.
Applicant’s oral submissions
His actions have been taken out of context. He has shown remorse the best way he could however he is not a murderer. He has done everything for his children. He got upset because it was necessary to smack his children. The seven weeks away from his children had hurt them most. The Applicant accepts responsibility for his actions and says that he has done everything to reduce the possibility of that ever occurring again. This included working with the Department of Child Safety for a time. He has done everything that he possibly can. That is shown for his actions over last year. He has been checked out. He has had no involvement with the police and has changed the direction of his life. He is willing to seek help from other people when that is necessary.
He has provided evidence of his involvement with Relationships Australia from the letter of 12 March 2000 and from that organisation. He has provided a witness from the child-care centre which the children have attended. The director has noted that the Applicant has always been a friendly and caring father and has always provided for his children with everything they need and that his children look happy and well cared for. He has provided a letter from the principal of his children’s state primary school that speaks of him highly as a genuine and very trustworthy person.
Discussion of evidence
Domestic Violence
The Tribunal sees acts of domestic violence as a major concern.
In the Marriage of Schwarzkoff, the Full Court of the Family Court stated:
“…instances of family violence should not be seen as less than crimes and that violence must not be trivialized simply because it occurs within a domestic or ‘private’ context.”
In the Marriage of Blanch [1998] FamCA 1998 page 12, the Full Court of the Family Court examined the welfare of a child in a domestic violence situation. The Court held:
His Honour’s discussion of the violence allegations appears to have largely overlooked the wider and more serious dangers that an abusive parent presents to children then the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper-vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law. Abusive behaviour by way of putting down a child can also lead to serious long-term emotional problems such as poor self-esteem and lack of self-confidence.
Research supports that domestic violence is detrimental not only to children who witness the abuse, but also to children who hear it or see the after-effects.
The Tribunal shares these concerns about the harm that domestic violence causes to children.
It was clear to the Tribunal from his evidence that the Applicant still lacked insight into the extent of the domestic violence and the impact on his children.
The Tribunal having heard the evidence from the Applicant accepts the summary of risk factors set out in paragraph 38 of these reasons.
The crux of the Respondent's concerns is the Applicant acted out of anger in breaching the Domestic violence Order. The action of tearing off the door to the children’s’ room are the actions of someone out of control. This would clearly be highly traumatic for young children. The Applicant acted out of anger in disciplining his children. The Applicant's daughter Child A; her school; the police; and the magistrate were all concerned by the Applicant's actions. The Department of Child Safety removed the children from his care for several weeks. These events suggest that the Applicant has a short fuse and can get quite agitated.
The Applicant has only demonstrated partial insight into the harm that has been caused to his children. It is clear that his eldest daughter has been traumatised by past events and has acted out violently against the Applicant; WJ; and her younger siblings. WL the Principal gave evidence that she came to know the Applicant because his children had behavioural issues. His brother MG was not aware of his brother's criminal history. What he did say was that if he had seen MW hitting one of the children he would have told him to stop because it is his view that hitting children is completely unacceptable (see paragraph [32]).
The Commissioner is right to say that the Applicant’s remorse is only partial. The Tribunal did not accept the evidence of WJ as it appeared that she was very close to the Applicant and not able to give completely objective evidence.
The Tribunal is of the view that there are positive protective factors in the Applicant’s favour. These include:
(1)The Applicant has developed some insight into the effect of his offending and this has resulted in changes in the way that the Applicant interacts with his children. However the Applicant was unable to articulate what he had learnt from the programs other than the concepts of ‘time out’ and ‘let it go’. It was the concern of the Tribunal that he'd had only made very small steps. There appeared to be a pattern whereby the Applicant starts his involvement with programs but doesn't continue through to completion. The Applicant has chosen to attend some of the parts of programs and then not continued to their conclusion. For example in relation to the Relationships Australia program he had not been there for some two years.
(2)The Applicant has expressed some remorse for his actions. The Tribunal however accepts the submission of the Respondent that such remorse was principally directed to review's own upbringing and he did not accept that his children had been harmed by the events of 4 June 2003 other than the immediate physical pain they experienced;
(3)He has a limited criminal history outside of these events and has not been in trouble with the police since these events;
(4)He has sought help from the Department of Child Safety and would have been supervised by them after the children were returned into his care. However the Applicant has not provided any evidence from the Department of Child Safety;
(5)He has taken steps to remove himself from the situation in which he found himself. He adopts steps to manage his stress. It takes enjoyment out of the painting work that he undertakes. He has a better relationship with his younger children;
(6)He had become involved in children's sport and demonstrated appropriate interactions with those children;
(7)He has the support of a personal relationship (with WJ) that provides support and guidance;
(8)The relatively narrow timeframe of the offending behaviour;
(9)The absence of criminal offending after these events;
(10)He has established a good relationship with the Principal of his children’s State Primary School. The Tribunal was impressed with WL as a witness however she was not aware of his criminal history; and
(11)He has undertaken a significant amount of volunteer work.
The decision-making process of the Commission, and now the Tribunal is guided by the High Court decision of M v M (1988) 82 ALR 577. The Tribunal would extrapolate the following from that decision:
i.The purpose of employment screening is not to re-try the Applicant’s case. Neither the Commission nor the Tribunal is a court exercising criminal jurisdiction;
ii.It is not the role of the Commission, or the Tribunal to arrive at a definitive conclusion on the issue of guilt or innocence. The Applicant’s guilt or innocence is a secondary consideration to the determination of what is in the best interests of children and young people;
The issue here is whether this is an exceptional case in which it would not be in the best interests of children and young people to allow unfettered access to them by a person against whom allegations of misconduct have been made.
The decision in M v M has recently been reiterated in the decision of W v W (2005) FLR 92-235.
The Tribunal is mindful that the decisions in M v M and W v W were based on a consideration of a father’s contact with his child where the father was alleged to have sexually abused that child. The Tribunal’s decision under the Act in this case on the other hand involves a consideration of a person’s contact with any Queensland children in circumstances where it is alleged he has supplied dangerous drugs. Both behaviours present risks of harm to children.
It is instructive to refer to some passages from the judgment of the Full Court of the Family Court in W v W. At paragraph 96 it is (inter alia) recorded:
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, without due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child” (emphasis added).
In the following paragraphs of the judgment the Full Court in W v W went on to consider the “wider issue” of how to assess whether there is a risk of abuse occurring if contact were granted and the magnitude of that risk.
The authoritative test propounded by the High Court in M v M was set out as follows at p. 77, 081:
“That a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.”
In paragraph 98 of its decision in W v W the Full Court proceeded:
“The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
“It should be noted that the M v M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’.”
In paragraph 105 of the judgment in W v W the Full Court quoted with approval certain remarks of Fogarty J in N v S & anor (1996) FLC 92-655 at p. 82:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be asked such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
“This is not a catalogue of correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
In paragraph 106 of W v W the Full Court described that in N v S Fogarty J went on to discuss the standard of proof necessary for a finding of unacceptable risk, stating that
“His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may be useful in some circumstances. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.” (emphasis added)
The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.
The Tribunal is motivated by what is in the best interests of children. Where someone has caused harm to children the Tribunal must be especially vigilant. The Tribunal is concerned that a report from a forensic professional was not provided. The Tribunal on 11 February 2010 specifically recommended that the Applicant obtained an up-to-date psychological report from an independent but fully qualified and registered professional as to his suitability for child related employment. There is little evidence apart from the Applicant’s that the risks or triggers for his behaviour have been identified and addressed. The Tribunal agrees with the concerns in this regard that are expressed by the Respondent in paragraph 38 of these reasons.
The way in which the Applicant has handled the stresses of his life since his conviction has been seen as entirely appropriate. This passage of time since the conviction is however a relatively short period.
There are risks where someone has committed offences involving violence. The role the Tribunal is to weight up those risks with the protective factors in evidence before the Tribunal.
In the decision in Commissioner for Children and Young People v V BC200206295 in which Young J makes reference to a decision of Petersen J in which case Petersen J stated:
“Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact…. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present.”
Young CJ then quotes from the judgment of Haylen J in Prince Jefri Bolkiah v KPMG [1999] 2AC 222, 236-237. At [100] Haylen J said:
“I am not able to accept the submission for the Respondent Commission that, so long as there is any risk however minimal, an Applicant may reoffend and therefore pose a risk to the safety of children, then an order and declaration of s9(4) cannot be made.
His Honour said this because he was of the view that Parliament could not have intended to set up a statutory right to make an application if the only people who could make the application were, because of their previous convictions for a serious sexual offence, denied any ability to obtain an order because they were by definition some risk, see [101]. His Honour examined the Second Reading Speech in the Lower House that the purpose of the screening related policies and procedures were to reduce unacceptable risks of people working with children. Furthermore, in the Legislative Council the Attorney-General had said that the object of the series of Bills, including the Bill for the present Act and the Commission for Children and Young People Act was ‘to achieve a balance between protecting employees and protecting children from abuse. It is important that we protect reasonable civil liberties’. His Honour also referred to the fact that the Wood Royal Commission from which the legislation had it genesis referred to an ‘unacceptable risk certificate’.
The New South Wales legislation is different from the Queensland legislation however the discussion of the concepts of risk is useful for the context of the decisions that the Tribunal must make. This is similar to the decision in Williamson v Director of Public Prosecutions [1999] QCA 356 that there must be some basis not a mere theoretical or possible risk.
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 he is an unacceptable risk to children. The onus is on the Briginshaw standard (on the balance of probabilities) to show that the Applicant is an unacceptable risk to children.
What is the meaning of risk? Haylen J said:
“It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’. The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.
I think the answer to this question is Yes and No. There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sex offence and its circumstances; the second is the current danger, if any, posed by the Applicant to children. Subs(5) deals mainly with the first focus, that is, that the Tribunal must evaluate the seriousness of the offences taking into account the age of the Applicant when the offences were committed, the age of the ‘victim’ at the time and the difference in ages. The second involves the assessment of the Applicant’s character now which includes the seriousness of the prohibited person’s total criminal record, a matter mentioned by (5) (e) and any other matter which the Tribunal considers relevant. Subs (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the Applicant’s current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an Applicant unless there was a good reason not to so exercise it.”
The Commissioner was right to refuse MW at first instance on the basis of the information that was before her. The Tribunal has had the advantage of much more evidence than was before the Commissioner and is of the same view that MW's circumstances are such that the Tribunal is satisfied that he is an unacceptable risk.
The Tribunal in coming to this decision has placed emphasis on the factors that were important in body of these reasons.
The Tribunal takes the view that the Applicant’s conviction must be taken into the context of:
(i)his criminal history as a whole; and
(ii)the balance between risk and protective factors.
The Tribunal is satisfied undertaking this weighting exercise that it has been established on the balance of probabilities that the Applicant is an unacceptable risk to children.
Section 226
Section 226(2)(a) – The Act
In accordance with section 226(2) of the Act, the Tribunal must have regard to certain factors where it is aware that a person has been charged or convicted of an offence. The factors required to be considered in relation to the commission, or alleged commission, of an offence by the Applicant, is as follows.
Whether it is a “conviction” or a charge – in this case the Applicant has “convictions” for drive a motor vehicle while under the influence of alcohol (06/06/1987), false statement in connection with unemployment benefits (6 charges between 01/08/1986 and 10/10/1986), false pretences (10/08/1987), breach of domestic violence order (17/05/2000), assault occasioning bodily harm (2 charges) (04/06/2003), common assault (04/06/2003).
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence. None of the offences of which the Applicant was convicted are defined as a serious offence under the Act.
When the offences were committed or are alleged to have been committed – The offences occurred between 6 June 1987 and 4 June 2003. However, the passage of time is not, of itself, an exceptional circumstance.[21]
[21]Grindrod v Chief Executive Officer, Department for Community Development[2008] WASAT 289.
The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children – The circumstances of each of the offences are summarised in the “Reasons” document at CCYPCG 037–038.
Nature and relevance
In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision.
The penalties imposed by the court for each of the offences committed by the Applicant are detailed on CCYPCG 036.
Any information about the person given to the Commissioner under section 318 or 319. No such information was given to the Commissioner.
Any report about the person’s mental health given to the Commissioner under section 335. No such report was given to the Commissioner.
Any information about the person given to the Commissioner under section 337 or 338. No such information was given to the Commissioner.
In relation to 226(2) (c) – see the discussion above on risk and protective factors.
The Tribunal is satisfied that this is an exceptional case in which it would be in the best interests of children for a negative notice to be issued. The Tribunal is not satisfied that the Applicant is an unacceptable risk of harm to children.
The Tribunal acknowledges the use of the Respondent’s submissions for setting out: the relevant Application history; relevant legislation; and the decision making process.
The Tribunal accordingly makes the following Order:
1.That the decision of the Commissioner for Children and Young People and Child Guardian made on 2 July 2004 to issue a negative notice to the Applicant MW is confirmed.
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