Nekabiani v Director-General, Department of Justice and Attorney-General - [2017] QCAT 412

CITATION:

Nekabiani v Director-General, Department of Justice and Attorney-General [2017] QCAT 412

PARTIES:	Maximus Nekabiani (Applicant)
v
Director-General, Department of Justice and Attorney-General (Respondent)

APPLICATION NUMBER:

CML107-17

MATTER TYPE:

Childrens matters

HEARING DATE:

15 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

24 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Director-General, Department of Justice and Attorney-General on 21 April 2017 to issue Maximus Nekabiani a negative notice is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for review of negative notice to work with children

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – whether exceptional case – whether in best interests of children to issue positive notice – where protective factors included ending of volatile relationship, working for almost two years without incident, references of interacting well with children and support network – where risk factors included involvement with domestic violence and contravention of Domestic Violence Order, whether applicant could respond appropriately to conflict and applicant’s focus on his own privacy and process itself – where applicant sought to justify and minimise involvement in offending behaviour – where applicant showed lack of understanding and insight into offending behaviour – where applicant failed to take sufficient steps to address factors contributing to his offending behaviour – where community expects those working with children to have deep understanding of impact on others of contravening Domestic Violence Order, to reduce likelihood of repeated behaviour – where applicant needs more time to develop insight into the impact of his behaviour on others sufficient to be authorised to work with children

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 167,
s 221, s 226, s 360, Schedule 1, Schedule 2

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293
HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403
Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
Re TAA [2006] QCST 11
Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Maximus Nekabiani appeared in person

RESPONDENT: Ms Megan Goodall, Government Legal Officer instructed by Ms Susan Thomas, Government Legal Officer

REASONS FOR DECISION

What is this Application about?

On 21 April 2017, the Director-General, Department of Justice and Attorney-General issued Maximus Nekabiani with a ‘negative notice’ to work with children. This means that Mr Nekabiani cannot obtain a ‘Blue Card’ to work in certain types of employment and volunteer work.[1]
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156 and
Schedule 1.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nekabiani v Director-General, Department of Justice and Atto...

Details

AGLC: Nekabiani v Director-General, Department of Justice and Attorney-General [2017] QCAT 412
Case: [2017] QCAT 412
Decision Date: 24 November 2017

CaseChat Overview and Summary

The case of Nekabiani v Director-General, Department of Justice and Attorney-General involved an application for judicial review of a decision made by the Director-General to issue a negative notice to the applicant, Maximus Nekabiani, under the Working With Children Act 2012 (Qld). The applicant sought to challenge the decision, arguing it was unreasonable and should be quashed. The dispute centred on whether Nekabiani was fit to work with children, given his history of domestic violence and contravention of a Domestic Violence Order.

The court was tasked with determining whether the Director-General's decision to issue a negative notice was lawful, reasonable, and justified. This involved assessing whether the decision was an exceptional case where a positive notice should have been issued, considering the applicant's history of domestic violence and contravention of a Domestic Violence Order, his lack of insight into the impact of his behaviour, and the risk he posed to children. The court also had to consider whether it was in the best interests of children to issue a positive notice despite these factors.

In considering these issues, the court found that the Director-General's decision to issue a negative notice was reasonable and lawful. The court noted that while there were protective factors, such as Nekabiani's stable employment and positive references, the risk factors, including his history of domestic violence and contravention of a Domestic Violence Order, were significant. The court also highlighted that Nekabiani lacked insight into the impact of his behaviour and had not taken sufficient steps to address the factors contributing to his offending. The court concluded that Nekabiani needed more time to develop insight into the impact of his behaviour on others to be authorised to work with children. As such, the court confirmed the Director-General's decision to issue a negative notice.

The court's final order was to confirm the decision of the Director-General, Department of Justice and Attorney-General on 21 April 2017 to issue Maximus Nekabiani a negative notice. This decision effectively upheld the Director-General's authority to determine the suitability of individuals to work with children and reinforced the importance of understanding the impact of domestic violence on children and the community's expectations of those working with children.

Orders

Orders of the court

1. The decision of the Director-General, Department of Justice and Attorney-General on 21 April 2017 to issue Maximus Nekabiani a negative notice is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.