NP v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 170
•27 April 2015
| CITATION: | NP v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 170 |
| PARTIES: | NP (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML178 - 14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 4 February 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Goodman |
| DELIVERED ON: | 27 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review is dismissed. 2. The Respondent’s decision to issue a negative notice to NP is confirmed. 3. The Tribunal prohibits the publication of any information which identifies, or could lead to the identification of NP or any member of his family. |
| CATCHWORDS: | Blue Card – where history of family violence linked to use of alcohol – where insufficient evidence of current alcohol consumption and understanding of effects of violence Working with Children (Risk Management and Screening) Act 2000 (Qld) |
APPEARANCES:
| APPLICANT: | NP appeared for himself, assisted by an interpretor |
| RESPONDENT: | The respondent was represented by Mr Peter Reid |
REASONS FOR DECISION
NP previously held a Blue Card. It was cancelled by the PSBA on 12 August 2014 after receiving information from the Queensland Police Service. NP would like his Blue Card reinstated and is seeking a review of the decision to cancel it.
Because NP has not been convicted of what is termed a “serious offence”, he must be issued with a Blue Card unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card.[1] Neither party bears the onus of proof, and I make my decision on the balance of probabilities.
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
In determining whether this is such an exceptional case, I have had regard to the evidence available to me, and the considerations contained in the legislation.[2]
[2]Ibid, s 226.
The paramount consideration is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
[3]Ibid, ss 6 and 360.
NP was born in the African country of Burundi. He moved to Australia in 2006. NP was assisted at the hearing by an interpreter and does speak some English. I acknowledge, however, that he has experienced some difficulties with preparation for and participation in this hearing due to the proceedings being conducted in his second language.
NP was educated to the age of 12 and then began working on his family’s farm. Burundi experienced violence from the early 1970’s but NP says that from 1993, a wave of violence swept the country and his family was constantly in fear of being killed. They moved away from their home village, and many more times to keep safe. He was married in 1995 and during that year moved with his wife and one of his brothers to a refugee camp in Tanzania. Family members remain in Kenya and Burundi. His father was killed by rival groups in 2007.
NP arrived in Brisbane in 2006 with his wife and five children. Four more children have been born in Australia. Shortly after arrival, the house in which they were living burnt down, and many important documents were lost.
He studied English at TAFE for approximately a year, and has been employed since 2007. He works at a meatworks. He remains the sole supporter of his family in Africa. He is stressed and worried about them.
NP states that the stress he has experienced led to him drinking alcohol. Ultimately he lost his driver’s licence due to drink driving in March 2012 or 2013, causing even more stress.
The loss of his Blue Card has meant that his wife has been unable to continue with the day care service she was running from home, placing significant financial strain on the family. The return of the Blue Card would mean that the family could consider providing a day care service once more, and would enable NP to volunteer with his local church to assist young people in his local community.
In his written submissions NP states that he stopped drinking alcohol in March 2014. Based on his oral evidence, I am satisfied that NP has again been drinking alcohol since the beginning of 2015. He was not clear how often or how much he drinks, although he acknowledges that alcohol causes him to behave poorly.
I have considered NP’s criminal history. On 16 January 2008 he attended court charged with breaching an Order made on 23 April 2007 under the Domestic and Family Violence Protection Act 1989. That charge related to an incident on 20 October 2007. The Queensland Police Service Court Brief states that police attended NP’s home on 20 October 2007 and were advised that NP had pushed his wife to the ground after an argument. Police state that NP’s wife had a cut upper lip and blood on her shirt.
In his oral evidence NP explained how the domestic violence order came to be put in place. He said that he became frustrated with his wife talking to someone they had met on the train and walked home without her. They had a fight and slapped each other.
On 2 June 2014 he attended court charged with the contravention of a Domestic Violence Order made on 9 July 2012. That charge related to an incident on 9 February 2014. The Queensland Police Service Court Brief states that police attended NP’s home on 9 February 2014 and were advised that NP and his wife had argued and that he had grabbed her around the neck and choked her, and that he had tipped a bottle of beer over her. The Court Brief records that NP advised police that he did not pour beer on his wife, and that he had put his hands around her neck because she pushed him.
In his oral evidence NP referred to an incident in March 2014 but it seems likely he was referring to the incident in February 2014. He states that he has since learned that it is not good to touch someone and that he needs to care for the security of his children. He says at that stage he was drinking beer every day. Since having to pay legal expenses and a court fine, he has learned not to push his wife. He says that alcohol makes him behave badly (for example the incident when he pushed his wife).
NP’s evidence regarding his current alcohol consumption was not clear. He initially said that he drank two small bottles of beer to celebrate the 2015 New Year and has not drunk since. Later, he appeared to indicate that he now drinks in moderation which is not a problem. NP says that there is only a problem if he drinks too much and disturbs the environment.
The Department of Communities, Child Safety and Disability Services produced documents to this Tribunal. The documents state:
a) The incidents of domestic violence referred to above were brought to the attention of the Department;
b) In late 2008 the family was referred to Mission Australia Community services, a family support service, with a view to providing support and assistance to the family.
NP says he has now learned about Australian law and about having a good relationship with his wife and family. Some aspects of Australian life are very different to his experience in Africa.
NP says that he has engaged in counselling with Priscilla Jettoo, a qualified psychologist. Ms Jettoo has worked for over 40 years in a variety of settings and with clients of diverse cultural and linguistic backgrounds and victims of torture and trauma. He was prompted to seek assistance from Ms Jettoo after the 2014 incident as he was concerned about the effect of the domestic violence on the children. He says that she has taught him about the law and about how to have a good relationship with his family. They discussed respecting the police law (if you disturb your family you are breaking the law); how to get a good relationship with his family and neighbourhood; and that if he respects the law he won’t lose money in court costs and fines. NP says that Ms Jettoo has congratulated him for following her advice.
NP identified that it was not good for children to be exposed to domestic violence as they might become intimidated by their parent. He acknowledged that victims of violence can suffer psychological injuries from an assault and considered that his wife has not suffered ongoing ill effects from the incidents as they have not continued. NP says that his wife understands that the incidents arose out of his consumption of alcohol.
Ms Priscilla Jettoo provided oral evidence. Ms Jettoo believes that NP does not have an alcohol or conduct disorder. She states that she has never seen him affected by alcohol and notes that he shares a good rapport with family members, and his interactions with his wife are “excellent”. She considers that the only thing that triggers negative behaviour for NP is alcohol. She has provided psychoeducation regarding the effects of his actions on his wife and children and on developing preventative strategies to prevent a repeat of the violent incidents. She considers that his family is safe.
Ms Jettoo believes that NP understands the detrimental effects of violence – physical, emotional and psychological. He is very ashamed of his actions and shame is a powerful factor in his culture. Ms Jettoo believes that NP has shown commitment and made significant progress in becoming more open and willing to want to do better. She will continue to provide counselling and mentoring to him. NP’s family advised Ms Jettoo that problems only arise when NP is drinking and Ms Jettoo understands that NP is no longer drinking.
Ms Jettoo states that NP “accepts responsibility for his offending behaviour. He acknowledges and understands the seriousness of his offending behaviour and its relevance to continuing to hold a blue card. He has sufficient insight into his offending behaviour to prevent a re-occurrence of similar conduct. In counselling we are working on proactive protective strategies for safely responding to conflict”.
Salome Swan, a multicultural support worker from Anglicare Southern Queensland provided evidence. She was to arrange for culturally appropriate counselling (including alcohol counselling) to assist NP to understand cultural differences in Australia, particularly around his behaviour in the family. It was anticipated that counselling would begin in March 2015.
Abel Sibionio, a Burundi community Elder, provided evidence that he has known NP since approximately 2006 and has found him to be a man who works very hard to support his family. Mr Sibionio has provided support to NP over the years, particularly if has been experiencing difficulties.
In determining whether this amounts to an exceptional case I will identify the risk and protective factors.
Protective factors:
a) NP has expressed a desire to avoid being involved in further incidents of domestic violence,
b) NP has identified that alcohol is a significant factor in his offending behaviour and has, it seems, reduced his consumption,
c) NP is employed full time and wishes to support his family financially and emotionally,
d) NP has engaged in counselling sessions to improve his understanding of Australian law and customs, and to improve his relationship with his family. He has indicated a preparedness to undertake alcohol counselling,
e) NP has the ongoing support of his family.
Risk factors:
a) NP has a history of physical violence against his partner in their home,
b) It is acknowledged that alcohol is a trigger factor for the violence,
c) NP has experienced some quite understandable difficulties in understanding social norms and legal responsibilities in Australia. It is not clear that he has fully grasped the need to avoid violence, and the rationale for the laws around family violence,
d) Alcohol counselling has not yet been undertaken,
e) There is incomplete evidence regarding NP’s current intake of alcohol.
I am satisfied that the risk factors outweigh the protective factors. I cannot be satisfied at this stage that NP has demonstrated an ongoing ability to promote and protect the best interests of children in his care. I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card to NP. The decision under review will be confirmed.
As NP and his wife have been involved in proceedings under the Domestic and Family Violence Protection Act 2012, I will make an order to prevent NP, his wife or his family members being identified.[4]
[4]QCAT Act s 66; Domestic and Family Violence Protection Act 2012 s 159.
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