NT v Commission for Children and Young People and Child Guardian
[2010] QCAT 433
•1 September 2010
CITATION: PARTIES: | NT v Commission for Children and Young People and Child Guardian [2010] QCAT 433 NT |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML004-09 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 6 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | R Joachim – Presiding Member T Williams – Member |
| DELIVERED ON: | 1 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That a positive notice and blue card be issued forthwith by the Commissioner to NT 2. That these reasons for decision are only to be published in a de identified format. |
| CATCHWORDS : | Blue card, exceptional case, risk to children, protective and risk factors, convictions for non serious offences |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr NT represented himself |
| RESPONDENT: | Commission for Children and Young People and Child Guardian represented by Mr G Woodberry |
REASONS FOR DECISION
Background to the application
The Applicant in these proceedings was NT.
NT lives with his partner, HS and their five children. NT is 30 years of age.
In March 2009 NT applied to the Commission for Children and Young People and Child Guardian for a blue card through the regional school where he was President of that school’s Parents and Citizens Association.
The Commission issued a negative notice in November 2009, and refused his application for a blue card.
On 2 December 2009, the Queensland Civil and Administrative Tribunal (the Tribunal) received an application from NT seeking a review of the Commission’s decision. He seeks a blue card to continue his community activities including involvement in volunteer work at his children’s school.
Hearings
The Tribunal held a compulsory conference on 25 February and made the following orders:
(a)The hearing of this matter is scheduled to take place at Brisbane on Tuesday 6 July 2010 commencing at 10:00am unless advised otherwise by the Tribunal.
(b) A notice to produce issue forthwith to the following:
(a) the Mental Health Court for production of any psychiatric reports prepared in relation to NT concerning unlawful stalking offences committed in 2001 for which a conviction was recorded in 2006; and
(b) the District Court of Queensland at Brisbane, Criminal Jurisdiction for production of any psychiatric reports prepared in relation to NT concerning unlawful stalking offences committed in 2001 for which a conviction was recorded in 2006.
(c) An attendance notice issue to the following persons to attend at the hearing of this matter to answer questions and/or give evidence:
(a) Sergeant TP, c/- Queensland Police Headquarters Brisbane;
(b) MJ, Principal, A regional school.
(d) At least fourteen (14) days prior to the hearing date, each party shall supply to the Tribunal a list of witnesses, witness statements and all other documentation to be relied on at the hearing.
RECOMENDATIONS
(e)It is recommended that the applicant obtain an up to date psychological report from an independent but fully qualified, and registered professional as to his suitability for child related employment.
The hearing of the application occurred on 6 July 2010 and the Tribunal reserved its decision.
What is the relevant legislation that applies in this matter?
An Adult who wishes to be a volunteer to coach or work with children requires, in most instances, a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (the Act) (see sections 156, 161, 187, 188, 199).
Since NT applied for a blue card, the legislation has changed. The Act, at section 455, provides for transitional arrangements. Essentially, because the application for review had not been decided under the previous legislation, the current Act as amended applies.
10. When the Commission prepared its reasons for decision it did so under the previous Act. The sections of the Act referred to in those reasons refer to the sections of the previous Act.
11. The reasons for the Tribunal’s decision refer to the relevant sections in the current Act.
12. NT had been convicted in the Brisbane District Court on fraud charges in May 2004 and given a suspended sentence. In March 2006 he was convicted in the same Court for stalking charges and sentenced to imprisonment for 12 months, suspended for 3 years after serving 4 months. These offences are offences other than serious offences as defined in the Act.
13. Section 221 of the Act provides that the Commissioner must issue a positive notice to the person if the Commissioner is aware of a conviction for an offence other than a serious offence. There is, however, an exception.
14. If the Commissioner is satisfied that the Applicant’s case is an exceptional one such that it would not be in the best interests of children to issue a positive notice, the Commissioner must issue a negative notice.
15. In deciding whether an exceptional case existed, the Commissioner took into account section 102(A)(2) of the former Act. The Tribunal in deciding this question must take into account section 226 of the amended Act. This provides at subsection (2)(a):
(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.
16. The Act in section 6 outlines principles for administering the act. The Act is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that both the Commissioner and now the Tribunal must apply, Section 155 further provides that:
“the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”.
17. In this case the Commissioner decided that an exceptional case existed such that it was not in the best interests of children for NT to be given a blue card.
18. The Act does not define what constitutes an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
19. In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated:
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”
20. The focus of the Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm.
21. The former Children Services Tribunal has previously endorsed principles from the Family Law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards.
22. In the former Children Services Tribunal matter of OAA re (2006) QCST 142 the Tribunal stated at paragraph 41 of its Reasons:
“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 Tribunals’ 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.”
23. This Tribunal considers this an appropriate approach. In effect as another part of its review of the Commissioner’s decision, this Tribunal needs to consider whether NT represents an unacceptable risk of harm to children, in determining whether his is an exceptional case.
Why was NT charged and convicted?
24. In 2001 NT stalked 2 former girlfriends. He did this by constantly phoning, texting and using voice mail.
25. These activities occurred day and night up to hundreds of times per day.
26. The phone calls included threats to kill, injure and inflict trauma, as well as hurt a housemate of one of the complainants.
27. He was charged of 2 counts of unlawful stalking with a circumstance of aggravation and subsequently convicted in May 2004. He served a term of imprisonment after pleading guilty.
28. In 2002, NT used credit cards fraudulently in order to obtain goods. He was convicted and given a suspended sentence.
Evidence given to the Tribunal
29. Evidence supporting NT was given either orally and/or in writing by the following persons:
HS – Partner
Sergeant TP – Queensland Police Service
MJ – Principal, A regional school
HI – Teacher, A regional school
WK – Teacher, A regional school
30. All of these persons were unshakeable in their belief that there were no concerns held by them that NT would be any risk to children.
31. They all advised the Tribunal that they were aware of his stalking convictions.
32. Sergeant TP advised the Tribunal that he had known NT since NT was a year 7 student. He had been a liaison officer for their neighbourhood Watch when NT was an area coordinator. He was very surprised when he had heard of NT’s offending behaviour thinking it was quite out of character. He maintained that NT was likely to seek help if he needed assistance. He thought he was more balanced and rounded.
33. MJ is Principal of the school attended by NT’s children. She has known him for 2 years. NT has assisted in the classroom and had been President of the Parents and Citizens (P and C) Association. She stated she had never seen NT act detrimentally at the school. He had disclosed his criminal history to her when he took on the head of the P and C.
34. MJ stated she had seen NT interacting with children weekly and had never seen any problem, NT has been very supportive of the school and the teachers and she has never seen him flare up in anger.
35. HI has known NT since 1995. She has never seen any evidence of threatening behaviour, and has never seen him get angry. She has known NT as a result of his assisting in the classroom.
36. WK likewise has not seen NT exhibit anger. She has been happy to have NT assist in any task in the classroom with children. She has no reservations about his being around children.
37. HS, NT’s partner advised the Tribunal she had known NT since October 2001. They have had 5 children and she is expecting a sixth child.
38. She described NT as a relatively calm man who goes to his own space when he gets upset. She stated he was good with the children and helped around the house.
39. She described NT as a good people person. She considered him a truthful person and said she had never heard him threaten anyone. She was aware of his stalking offences. She stated there had never been any domestic violence in their relationship.
40. She noted that NT would confide in his niece and mother about issues if he needed to. She advised NT has a strong relationship with his mother.
41. HS advised the Tribunal she has seen paper work detailing diagnoses of ADHD, obsessive compulsive disorder (OCD) and Aspergers. She has seen evidence of OCD as NT likes to collect things and everything has to be in its place.
42. HS advised that she didn’t know the full situation surrounding the fraud charges but NT had told her some of what he was doing.
43. NT also gave evidence to the Tribunal. He provided a life history to the Tribunal outlining his schooling, work history, his significant relationships, his voluntary community work, the birth of his children and his criminal history.
44. He advised the Tribunal that he lives for his family and would not do anything again to cause distress to them. He described his support networks as including his wife, his mother, teachers MJ and HI and the school pastor.
45. He admitted a great deal of anger and confusion around the relationship break ups and did not have the personal resources to cope. This was exacerbated when one of the women became pregnant to him and had an abortion. He found this abhorrent.
46. NT advised the Tribunal that the sentence affected his whole life but he is now more equipped and aware, noting these events occurred when he was 19 to 21 years old.
47. He advised that if he became affected again like this he would seek counselling and religious assistance, stating he has learned that no crime is worth what he went through.
48. NT admits that his behaviour was his fault and he should not have behaved as he did. He accepts the women would have been afraid. He felt ashamed that it caused them stress.
49. He further advised the Tribunal of the following matters:
- His presentation to psychiatrists prior to his court case for stalking was not an accurate reflection of himself as he wished to avoid a period of imprisonment
- He has not been in paid employment for 2 years
- He used to help in the classroom and with IT at his childrens’ school and wants to resume this
- He had spent some time in his youth under psychiatric care
- One of his key failures was not listening to his parents advice regarding his relationships
- He accepts the diagnosis of ADHD and OCD but not Aspergers. He is on a disability support pension as a result
- He relies heavily on religion and talks to a chaplain regularly, although later stated he hadn’t been to church for 2 years prior to Easter
- He hasn’t undertaken any anger management courses
- He is dedicated to his family
- He would never do anything to jeopardize his position in the community
- He has been involved in neighbourhood watch, a political party, and the school P&C
- He considers he has paid for his crimes acknowledging they are not excusable. In acknowledging his behaviour in stalking 2 women was unacceptable, he stated there were calls from the women. He expressed frustration at the break ups and was extremely angry about one of the women having an abortion of their child.
- He wants to give back to the community
- He didn’t learn enough at a young age and kept things to himself.
- He would take counsel if he found himself with similar events in the future looking at what is best rather than what he wants.
Submissions of the Commission
Confidential nature of hearing
50. In relation to whether published reasons for the decision in this matter should be de identified, the commission argued that any publication should be anonymous.
51. Mr W argued that the publication of NT’s name could adversely affect his children. He submitted that they had no role in the proceedings, and should not therefore, be affected by the result being published. He referred to the incongruity hat resulted from blue card review hearings being held in private, yet it is possible that outcomes can be displayed in public.
52. Mr W noted that decisions of the Tribunal needed to be made in the best interest of children.
The application
53. Mr W submitted that the Tribunal needed to consider NT’s credibility in determining this matter. He advised the Tribunal that the Commission was relying on its reasons for decisions with respect to the relevant law. He drew the Tribunal’s attention to the case of Chief Executive Officer, Department for Child Protection v Scott [NO2] [2008] in the Western Australian Court of appeal 171. At clause 128 of that decisions Buss J A in discussing risk observed:-
“The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s12(5), there is an “unacceptable risk”, to rely partly on facts and partly on reasonable suspicions.”
54. Mr W submitted that there is evidence for the Tribunal to be satisfied that NT has made some attempts to manipulate the facts.
55. In discussing risk and protective factors Mr W made the following submissions:-
Risk Factors
§Whilst there has been no violence involved, NT made threats of violence which gave significant concerns to the stalking victims and cause them significant distress.
§Threats were made to an associate
§The harassment was such that both women moved house with one moving interstate
§There was no rehabilitative treatment or counselling undertaken
§NT’s school experiences had not been positive
§NT is not employed
Protective Factors
- NT has had continuous community involvement
- NT has a supportive family
- NT has a good relationship with his wife
- He has support of Sergeant TP and the teachers.
56. Mr W submitted that NT’s explanation of his offending behaviour was inadequate showing a lack of insight and remorse. He submitted that NT has no wish to offend again because of the impact on his family and others.
57. Mr W considered there was some evidence that NT exaggerated pointing the Tribunal to NT’s statements about the extent of his religious beliefs, his research undertaken for this hearing and tailoring evidence.
58. He suggested that only 1 year and 4 months off probation was too short a period to determine if NT was likely to re offend.
59. Finally Mr W submitted that this is a case where the Commissioner’s decision should be confirmed as NT poses an unacceptable risk to children.
Submissions of the Applicant
60. NT agreed with the Commissioner’s submissions that publication of this matter should be in a de-identified format. He argued that his family lived in a small community and it was in the interests of his children that they not be identified as being associated with this matter.
61. NT submitted that there had been no physical violence associated with his offending behaviour but conceded there had been mental violence.
62. He argued that the witnesses who know him from his community put forward in evidence a very different picture to the psychiatric reports and his offending.
63. NT submitted he had fulfilled all the requirements of his probation.
64. He further submitted that he is genuinely remorseful and would write to the women to explain this to them if legally permitted.
65. He argued that he does not feel stressed in his life. The only time he was stressed was during the period of offending and subsequent punishment.
66. He acknowledged the charges and is sorry to the complainants, his family, Sergeant TP and the State. He stated he was not proud of what he did.
67. He submitted he has moved on thanks to the support of his wife and deserves a second chance to be given the trust of the community to which he wants an opportunity to contribute.
The Tribunal’s view
68. The Tribunal considers that NT is remorseful about what he has done. Whilst he expresses more concern of the effect of his behaviour on himself and his family, the Tribunal believes that NT regrets the impact on the women from his stalking behaviour, although considers his insight somewhat limited.
69. The Tribunal has some doubts about NT truthfulness. He admitted during the hearing he presented to the psychiatrists in such a way as to obtain reports that he would be unfit to plea for the stalking charges. Whilst he had an excuse of being threatened, in relation to the fraud, he nevertheless was dishonest. He seemed to suggest in evidence a greater connection with the Church than he was prepared to acknowledge later in the hearing, suggesting earlier exaggeration. There was a significant disconnect between the way he said he lived his life and the presentations to the psychiatrists.
Section 226 of the Act
70. The Tribunal must take into account matters listed in this section in deciding whether or not an exceptional case exists.
71. The Tribunal notes that NT has been convicted of offences classified other than serious offences under the Act. He was given a term of imprisonment for stalking. It was suspended after 4 months. The sentencing judge considered the offences extremely serious. He was put on probation for 3 years.
72. The Tribunal also notes that the offences did not involve children and that the offences can be considered of marginal relevance to employment or carrying on a business that involves or may involve children.
73. The Tribunal has reviewed the information provided by the Commissioner in relation to NT’s criminal history, court briefs and sentencing remarks.
74. The Tribunal has reviewed the information provided from the Mental Health Court which consisted of various psychiatric reports referred to earlier in these reasons.
75. The Tribunal in taking these matters into account noted that:
§The penalty of imprisonment for the stalking charges was significantly less than the maximum available to the sentencing Judge.
§The psychiatric reports are unreliable due to NT’s dishonesty with the psychiatrists.
§There has been no offending behaviour since 2001.
§Probation ended less than 18 months ago.
76. The Tribunal considers it is not bound exclusively by section 226 in deciding whether or not there is an exceptional case for the person. Section 226(2) outlines what the commissioner and now the Tribunal must have regard to. The section does not use the words “must only have regard to”. The Tribunal is of the view that it can also have regard to other matters.
77. In this regard, the Tribunal has also considered the potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Potential protective factors are:
a)NT has a stable relationship and enjoys raising his children
b)He has or has had a strong connection and involvement with his community including neighbourhood watch, the local school and a political party
c)He does not have any known history of alcohol consumption
d)There has been no offending behaviour since 2002
e)NT’s offending behaviour covered a narrow span of time
f)He has no apparent anger control issues
g)He has strong support from the local school community
h)His offending behaviour did not involve children
He is remorseful for his behaviour.
Potential risk factors are:
(a)He is unemployed
(b)There were threats of violence made during his stalking offences
(c)He has manipulated facts to suit his causes
(d)There is no evidence of formal or informal counselling or rehabilitative treatment
(e)The period of time off probation of 1 year and 3 months is short.
(f)NT’s insight into the effect of his stalking behaviour is limited.
78. The Tribunal considers the potential protective factors significantly outweigh the potential risk factors.
79. The Tribunal accepts that NT is remorseful for what he had done and seeks to be positively engaged in his community. He has done so for many years.
80. The Tribunal accepts the evidence of teachers from the A regional school in considering that NT does not pose an unacceptable risk to children.
81. As to the matter of publication, the Tribunal accepts both the Applicant’s and the Commissioner’s submissions. Any publication should not identify the Applicant because of the potential negative affect on his children.
82. The Tribunal considers it would be grossly unfair on his children to have material related to their father’s criminal history in the public arena. Moreover, the Tribunal considers that the principle that the welfare and best interests of children are paramount, must mean that the Tribunal cannot allow publication other than in a de identified format.
Conclusion
83. The Tribunal has concluded that NT does not pose an unacceptable risk to children and that the protective factors outweigh the risk factors.
84. The Tribunal has concluded that NT’s is not an exceptional case such that it would not be in the best interests of children for the Commissioner to issue a positive notice and blue card. The decision of the Commissioner will be set aside.
85. It is the decision of the Tribunal that a positive notice and blue card be issued forthwith by the Commissioner to NT.
86. These reasons for decision are only to be published in a de identified format.
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