Navaratnam v Commission for Children and Young People and Child Guardian
[2014] QCAT 55
| CITATION: | Navaratnam v Commission for Children and Young People and Child Guardian [2014] QCAT 55 |
| PARTIES: | James Joseph Navaratnam (Applicant) |
| v | |
| Commission for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML099-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 6 December 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Goodman |
| DELIVERED ON: | 12 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Commissioner’s decision to issue a negative notice to Mr Navaratnam is confirmed. |
| CATCHWORDS: | Childrens matters – where applicant for Blue Card convicted of a single serious offence – where exceptional circumstance not established Commission for Children and Young People and Child Guardian Act 2000 (Qld) |
APPEARANCES and REPRESENTATION:
| APPLICANT: | James Navaratnam represented by David Gardiner of counsel, instructed by Debbie Hewitt of Sunnybank Solicitors |
| RESPONDENT: | Commissioner represented by Louisa Keown |
REASONS FOR DECISION
Mr Navaratnam has applied for a Blue Card so that his wife is able to work as a day care provider from their home.
On 12 December 2011 Mr Navaratnam was convicted of unlawful and indecent assault. The charges arose out of an incident on 17 February 2010 involving Mr Navaratnam and a 22 year old female who was a family friend. Mr Navaratnam was 61 years old at the time of the offence.
The young woman was working in a grocery shop and the offence occurred on the shop premises.
The legislation categorises unlawful and indecent assault as a “serious offence”[1] and provides that Mr Navaratnam cannot be granted a Blue Card unless I am satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a Blue Card.[2]
[1]Criminal Code Act 1899 s 352, Commission for Children and Young People and Child Guardian Act 2000 (Qld) Schedule 2.
[2]Commission for Children and Young People and Child Guardian Act 2000 (Qld) ss 225, 226.
Mr Navaratnam states that what occurred on 17 February 2010 was consensual contact between two adults. He states that the allegations of assault were made by the young woman after political and personal clashes on the board of the church that both families are involved in. He denies that he assaulted the young woman and says that he accepted his lawyers’ advice to plead guilty to the charge to avoid a trial and possible jail term.
Mr Navaratnam has been convicted of a crime. I cannot find that he did not commit the crime. I will proceed on the basis that Mr Navaratnam unlawfully and indecently assaulted the young woman.
In making my decision, the welfare and best interests of children are paramount[3], as is their protection from harm and promotion of their wellbeing.[4] I have considered the factors described in the legislation[5] and other relevant matters that are particular to this case.[6]
[3]CCYPCG Act ss 5,6.
[4]CCYPCG Act s 155.
[5]CCYPCG Act s 226.
[6]CCYPCG v Lister (No 2) [2011] QCATA 87.
In assessing whether this is an exceptional case, I have considered all the available evidence. I have weighed up the apparent risk factors as against the protective factors, including Mr Navaratnam’s level of insight into his behaviour.
There are some protective factors:
a) Mr Navaratnam has never previously been convicted of (or indeed charged with) a criminal offence. He and his wife have raised their own two children and he has been actively involved in raising two of his sister’s children after their father was murdered. They remain a close family.
b) Mr Navaratnam’s wife provided Family Day Care in their home for approximately 10 years, and Mr Navaratnam has had a long term involvement in youth and community affairs with no evidence of adverse outcomes for children.
c) Mr Navaratnam’s remorse regarding the harm that his actions have caused to his family and to himself.
d) The ongoing support of Mr Navaratnam’s treating psychologist Mr Ham who says that Mr Navaratnam is aware of the impact of his behaviour. Mr Ham states that consultations have focused on events leading up to the incident and on strategies to ensure that such an event is not repeated. Mr Ham reported “I do not believe that Mr Navaratnam presents any danger to any children with whom he might be associated”.
e) The ongoing support of family and friends who have never seen any problems in Mr Navaratnam’s interactions with children.
There are also some risk factors, including:
a) Mr Navaratnam’s refusal to accept that his behaviour was criminal. As noted above, I cannot accept Mr Navaratnam’s position that the contact between the parties was consensual. He has been convicted of assault but does not acknowledge that he assaulted the young woman. He blames his conviction on others who persuaded the woman to make and pursue the allegations against him. He did not demonstrate to me insight into the harm caused by his criminal activity, primary because he denies that he committed the crime.
b) The lack of independent forensic psychological testing to assess matters such as Mr Navaratnam’s insight, the likelihood of reoffending and the risk he poses to children.
Mr Navaratnam’s lawyers urge that I find that there is “no real and appreciable risk to the safety of children” and determine that a Blue Card should be issued. That is not the test. I must decide: Is this an exceptional case in which it would not harm the best interests of children to issue a Blue Card? Unless this is such an exceptional case, a Blue Card will not be issued.
I am not assessing the likelihood of Mr Navaratnam sexually assaulting a child. I am determining whether this case is exceptional so that it should fall outside of the usual result: refusal of an application for a Blue Card.
The term “exceptional case” is not defined in the legislation but has its ordinary meaning: to be “exceptional” the case must be significantly different from other cases.
The legislation provides that an offender who commits one “serious offence” (such as unlawfully and indecently assaulting another adult) will not be issued with a Blue Card unless this an exceptional case in which it would not harm the best interests of children to issue a Blue Card.
Mr Navaratnam has committed a single “serious offence” with an adult victim. The lack of prior convictions or of a child victim does not establish an exceptional case. There must be something more. The legislation provides that a Blue Card is refused in such a case unless the exceptional case test is satisfied.
These circumstances are not exceptional. I will confirm the decision to issue a negative notice. That means that a Blue Card will not be issued.
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