OBC v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 14
•14 January 2014
| CITATION: | OBC v Commissioner for Children and Young People and Child Guardian [2014] QCAT 14 |
| PARTIES: | OBC (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML059-13 |
| MATTER TYPE: | Children’s matter |
| HEARING DATES: | 25 October 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 14 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Commissioner’s decision is confirmed. 2. The reasons are to be published in a de-identified format. |
| CATCHWORDS: | Childrens matter – Blue card – insight into behaviour – unlawful assault on a female – no conviction recorded |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | OBC |
| RESPONDENT: | Mr Craig Capper representing the Commissioner for Children and Young People and Child Guardian |
REASONS FOR DECISION
OBC seeks a review of the decision made by the Commissioner for Children and Young People and Child Guardian (CCYPCG) to issue him with a negative notice and refuse him a Blue card. He seeks to be issued with a positive notice and a Blue card.
OBC is a 68 year old man. He has been married three times. He had 4 children with his first wife. They are now all adults.
On 9 August 1990 OBC was convicted of an offence of ‘Unlawful assault on a female’. He was discharged with no conviction recorded and placed on a recognizance for 12 months. The victim of the assault was his 16 year old daughter.
Regarding the charge against OBC, the Police Report provides the following details:
In 1988 the defendant and his family were living at Maryborough. On two occasions about 10 days apart the defendant entered the bedroom of the complainant and shone a torch on her and up her nightie. He also handled the girl in an improper way.
The family separated as a result of this. They later reunited with the defendant agreeing to obtain counselling. Those incidents were not reported to police.
On or about midnight … on 12th February 1990 the defendant went into the complainant’s bedroom. She was in her bed at the time. The complainant was woken by his entering the room. She pretended to be asleep. It is alleged that the defendant pulled the bedcovers from her, shone a torchlight on her and took hold of the bottom of her night gown. The complainant alleges that she then rolled over and pulled the bedcovers back over herself. It is alleged that the defendant then left the room. It is alleged by the Prosecution that in the circumstances the actions of the defendant are sufficient to substantiate this charge within the terms of the definition under Section 245 of the Criminal Code.
The complainant was quite concerned and disturbed over the incidents. The matter was reported initially to the Department of Family Services and as normal procedure the Police were advised.
The defendant was subsequently interviewed. He admitted the incidents in Maryborough and in relation to this incident, it is alleged that he made statements consistent with his culpability.
The applicant’s story…
OBC was born in Bowral NSW and says that he is fortunate to have had great and life opportunities. Sport was a particular part of his life and to this day he participates at an elite level in hockey, having represented Australia on a number of occasions. His life story reveals a history of high achievement and success.
His resume outlines a significant list of qualifications, memberships, capabilities, experience and testimonials. However it is his humanitarian work in Vietnam for more than the last 15 years that show that he is a person of great capacity.
OBC married his first wife in the early 1970s. They built a home in Nambour and started to raise their 4 children. Around this time he became interested in entering Church Ministry. He had previously attended a Theological College in 1969.
After a successful period of Ministry in various locations the family moved to Maryborough. At this time OBC was regularly involved in Youth Ministry and Leadership.
In his Personal History Overview dated 29 May 2013, OBC says:
Maryborough was also exciting growth for the church family. It was however a place where I left ministry, having decided that behaviour I exhibited there, was totally wrong for any person, let alone a Pastor, was not acceptable for continuing on.
In a letter to the CCYPCG dated 6 December 2005, OBC expands on the situation in Maryborough as follows:
… 15 years ago I was becoming aware that my eldest daughter was developing as a teenager, and was looking extremely like her mother must have done as a teenager. It led to interest that brought about two events where I acted improperly in a voyeuristic way that was totally inexcusable and inappropriate. It was not physical. It was dealt with through subsequent counselling, and has never been an issue with her, or any other person since. I had 6 months alone, and resigned from my situation in this process.
In another letter to the CCYPCG dated 4 June 2012 OBC also talks about the incidents involving his daughter. He describes his daughter as very manipulative whose word was never questioned, despite being a known liar. He says that it was his decision to plead guilty that saved all the facts being known. He goes on to outline the earlier events that occurred –
…when I went to bed one evening past my daughters usually closed door. It was open. She was lying partly exposed. I stopped and went in and looked on her, moving the cover a little and putting it back. I left. I believe still she was being deliberatively provocative. I did not say anything to my wife, which was a mistake. Several nights later, the same thing happened, in that she left the door open and lay half uncovered, I looked in at her, then refused to become involved.
With respect to the incident where he was charged OBC provides a version of what occurred in a letter to the CCYPCG dated 12 December 2006. He says that –
The rebellion came when I was checking the house for cockroaches after having ‘bombs’ to eliminate them on that particular day. I had a torch. I was in hindsight better to have had my wife check the room of my daughter, but as things were seemingly going well, opened the door, checked the room and under the bed, and covered my daughter who was partly uncovered, with a sheet, before leaving. End of situation. My daughter next day said I acted inappropriately. This is and was, never so.
What went wrong?
On 12 March 2013 the Commissioner issued OBC with a negative notice on the basis that OBC’s case is an exceptional one in which it would not be in the best interests of children for a positive notice to be issued.
OBC seeks a review of the Commissioner’s decision to allow him, if he chooses to use his medical and sporting skills to assist and encourage young people in his local area.
The offence for which OBC was convicted is not considered a serious offence under the Act and as a result the Commissioner must issue a positive notice unless he is satisfied that it is an exceptional case in which it would not be in the best interests of children for him to issue a positive notice. In that case, the Commissioner must issue a negative notice to the person. It is this issue that the Tribunal must address.
The standard of proof on which the Tribunal must be satisfied is the balance of probabilities. However, there is no onus of proof on either the applicant or the respondent.[1] It is up to the Tribunal to consider the evidence and make a determination.
[1]McDonald v Director General of Social Security [1984] FCA 57.
The Tribunal is guided by the decision of Philippides J in Maher[2], which requires that the Tribunal must seek to balance the risk factors against the protective factors.
[2]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The Tribunal is also guided by the judgement of Young CJ in EQ Commission for Young People v V[3] (at [42]) where His Honour refers to the necessity to find a ‘real and appreciable risk’ to the safety of children.
[3](2002) NSWSC 949.
In his application, OBC meticulously outlines why he believes the findings of the Commissioner were flawed. He says that he has taken responsibility for his actions, every day for the last 23 years. He points out that there has been no question of any wrong attitudes or actions in that time.
He says that he has always stated the truth and ‘despite the false claims of my daughter’ continues to do so.
He seeks to distinguish his plea of guilty as not being proof of guilt to the alleged incident but rather an honest admission to holding a torch (light) but not doing anything improper. He contends that he was misled regarding the consequences of his plea. He maintains that no criminal conviction was recorded.
He argues strenuously that the Department personnel fail to give credit for or recognise that there was ‘ONE incident with ONE person at ONE time’.
He asserts that he is not a person who acts improperly. He claims that for 23 years he has never allowed himself to be in a one on one situation with women or children.
OBC therefore submits that the decision by the Commissioner is based on his wrong plea, incorrect statements by his daughter, conclusions that have apparently labelled him a “serial offender” and no recognition of the total lack of any other incident.
In his correspondence to the Commissioner dated 12 December 2012, OBC expresses extreme frustration with the process he has had to go through. He complains that the conclusions were based on incomplete research and incorrect details.
OBC’s submissions
In his submissions to the Tribunal, OBC said that he continues to dispute the bulk of the evidence against him. He defended the psychological report by FH and emphasised that everything was resolved a long time ago.
He claims that counselling helped him identify areas to address and he has moved on and chosen to live his life the right way. He said that all his referees know him well and two of them were fully aware of the details of the matter involving his daughter.
OBC acknowledged that the initial incident was wrong and it triggered in him a desire ‘to fix it’. As a result he still keeps a safety net around himself in all situations involving kids, women and the elderly.
OBC claimed that he did understand the impact of his behaviour on his daughter but contends that he was shut off from his kids and that his former wife refused to engage with him. He says he can only guess what the impact might have been but he sees his daughter as a victim. He wants his daughter to forgive him.
He asserts that the impact of the decision to refuse him a Blue card is wider and he is only pursuing it because ‘we need people’ like him to have a Blue card and that we risk losing people we should be using. He said that he will never accept that his court case was well handled.
OBC referred to the evidence of RN who said that the situation with his daughter was an aberration. He said it shouldn’t be held against him because it was not a pattern of behaviour.
In summary OBC pointed out that he has changed his attitude and his views. He accepts what he had done and he recognizes the submissions made by the Commissioner but that person does not exist anymore. He claims that he doesn’t want to be denied the opportunity that would arise from being granted a Blue card.
The Commissioner’s position
The Commissioner reiterates the principle that the paramount consideration is a child’s entitlement to be cared for in a way that protects the child from harm and promotes their wellbeing. It is to this consideration that all others must yield.
Further what amounts to an exceptional case must be such as 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]
[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.
The Commissioner says that what constitutes an “exceptional case” is a matter of discretion having regard to the totality of the information before the Tribunal and the consideration of the merits of each particular case.
The Commissioner outlined his considerations in relation to section 226 of the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act).
The Commissioner acknowledges that OBC was convicted for the offence of unlawful assault on a female being his 16 year old daughter. However no conviction was recorded and he was discharged on a recognizance. The reasons for the Court’s decision are not available to the Tribunal.
The Commissioner points out that the incident occurred a few months after he reunited with his wife and family following a separation brought about by two previous incidents. On those occasions it is alleged that OBC entered his daughter’s bedroom while she was sleeping, removed her bedclothes and shone a torch on his daughter and under her clothing.
The Commissioner submits that OBC’s alleged conduct is highly material to the assessment of his eligibility to work with children.
The Commissioner submits that it is open to the Tribunal to conclude that OBC’s inappropriate behaviour was motivated by what appears to be a sexual interest due to his daughter ‘developing as a teenager’ and ‘looking extremely like her mother must have done as a teenager’.
The Commissioner submits that OBC has failed to recognise his duty as a parent to protect his child from harm, and has breached his responsibilities to promote his child’s welfare. The Tribunal considers that it is likely that his daughter may well have suffered emotional harm as a result of OBC’s inappropriate conduct.
The Commissioner submits that the Tribunal must consider whether OBC has shown any insight into his behaviour. In this respect the Commissioner refers to the decision of Commissioner for Children and Young People and Child Guardian v Lister (No 2)[6] where the Appeal Tribunal adopted the reasoning of the former Children Services Tribunal[7] about the role that insight plays in such applications:
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.
[6] [2011] QCATA 87.
[7] Re TAA [2006] QCST 11 [97].
The Commissioner points out that in Lister’s case a number of years had passed since the offending behaviour and there was no evidence of any misconduct since that time.
The Commissioner submits that for the passage of time to be a protective factor the Tribunal must be satisfied that OBC has insight into the triggers for his offending behaviour.
He has to recognise the inappropriateness of his behaviour, which extends to his admitted behaviour that occurred prior to the offending behaviour.
He must acknowledge the serious harm that his conduct has caused and the potential harm that may arise as a result of his conduct for his child, her siblings, the family and the community generally.
He must be able to recognise the existence of and need for appropriate boundaries when dealing with children. He must acknowledge the position of authority and trust he occupied in relation to his own children and generally when undertaking child-related employment.
He has to demonstrate that he has developed appropriate strategies and techniques to ensure that he does not breach his position of trust or authority in future, which may give rise to further offending.
With respect to all of these matters the Commissioner points out that a review of OBC’s submissions reveal that he continues to assert that his daughter’s allegations were false, despite his admissions in 2005 about his daughter as a teenager. He also continues to dispute the details of the incident for which he was charged.
The Commissioner points out that despite having separated from his wife after the earlier incidents and reuniting with his wife subject to a condition not to enter his daughter’s room, he was, within a short period of time, convicted of entering her room with a torch and engaging in similar conduct to that previously alleged.
The Commissioner submits that OBC attempts to minimise his behaviour by arguing that it was one incident, when by his own admission there were at least 2 other incidents. He continues the claim that his guilty plea is not proof of guilt of the alleged incident. He places blame and responsibility on his daughter by suggesting that she was being deliberately provocative, she was manipulative, had behavioural problems and was a known liar.
The role of the Tribunal?
The Tribunal is in the position of considering the matter afresh, and it may consider any new evidence in doing so and it may, on consideration of the matter, affirm the original decision, amend the original decision or set that decision aside and substitute its own decision[8].
[8] QCAT Act ss 20 & 24.
The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children. Further, the decision is guided by the right of children to be cared for in a way that they are protected from harm and that promotes their well-being[9].
[9]CCYPCG Act ss 155 & 360.
The task for the Tribunal in this matter is to determine if this is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice to OBC.
The Tribunal accepts that when considering if this is an “exceptional case” ‘(t)he proper approach to it is… to consider its application in each particular case, unhampered by any special meaning or interpretation’.[10]
[10]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
In order to determine whether this is an “exceptional case”, the Tribunal has identified potential risk factors and potential protective factors following the example in Maher.
OBC produced a Psychology Report from FH, Consulting Psychologist dated 30 May 2013 who confirmed that she consulted with OBC on 28 and 29 May 2013. FH says that his results were well within a normal range of mental health behaviours when tested for depression, anxiety, stress and global functioning. In her opinion he did not reveal any indication of deviant, sexual or predatory tendencies.
FH says that OBC showed her a letter dated 2 August 1996 declaring that he had ‘No criminal convictions’ and that he showed remorse at the earlier incident and circumstances in Maryborough saying that ‘it changed my daily life forever since then’.
FH says that no ‘risks or triggers’ are identified. She also points out ‘he still grieves for the loss of his children of his first marriage, Ministry career and aims to continue helping others build healthy lives’.
FH says that no protective factors are recommended. She reports that OBC said he is aware of his responsibilities as he has over 20 years experience working with children, families and the elderly.
With respect to preventative strategies, FH reports that OBC is very aware of the risks of protecting children. Thus he ‘never works alone with one child’ and ensures there are others/witnesses present at all times.
The Commissioner argues that little weight should attach to the report by FH because it does not address the issues facing the Tribunal. It does not address any risks or triggers regarding OBC’s behaviour and doesn’t take any of the substantive matters any further.
OBC no longer has a significant relationship with his first family and former wife who he seeks to blame for most of his current problems. He described her as aggressive, manipulative and ruthless and accused her of committing herself to destroying his reputation, in order to justify her self-destructive decisions and personal unhappiness. By way of contrast, he does not acknowledge his own role with respect to becoming estranged from his family.
OBC has reluctantly admitted his inappropriate conduct when invading his daughter’s privacy in 1988 and 1990. He claims to be remorseful but at the same time he presents to the Tribunal as completely unrepentant about his actions. At best he has attempted to minimise them.
In letters dated 6 and 28 December 2006, OBC criticised the Blue Card process and the role of the Commissioner for Children and Young People and Child Guardian. He has accused the Commissioner of failing to properly supervise her staff. He advised the Commissioner that he had discussed his concerns with legal and political people and had also been offered media outlets to ‘let people know what is really happening in the department’. It is the Tribunal’s view that OBC has not shown any understanding or respect for the role of the Commissioner in this process.
He has demonstrated absolutely no insight into the impact of his behaviour on the personal, physical or emotional welfare of his daughter and potentially her siblings. In particular there is not one expression of concern expressed in any material provided by OBC about the impact on his daughter of having to be interviewed by police about the treatment she received at his hands and the subsequent criminal proceedings. He continues to refer to his daughter’s deception and misleading actions.
There is no recognition expressed by him about the effect on his other children and the family.
OBC has only undertaken a small amount professional counselling regarding his actions and he has not provided the Tribunal with any independent professional evidence regarding any risk he may pose to the welfare of children in his care. FH indicates that her clinical observations, questions and conversations with OBC did not reveal any indication that he has deviant, sexual or predatory tendencies. However the Tribunal is conscious of the submissions by the Commissioner that OBC did not take the opportunity to arrange for a full psychological report from FH.
Should OBC be granted a Blue Card?
The Tribunal has been left in no doubt that OBC refuses to accept responsibility for his actions and behaviour in 1988 and 1990.
OBC asks the Tribunal to recognise the support he has received from numerous family, friends, professionals, including a Minister of religion and lawyer, medical practitioners, teachers, and other parents, none of whom suggest a single incident or reason to restrain his future working with children.
The Tribunal has taken into account the positive references provided by OBC. As might be expected they are all very positive towards him. They assert that he has positive interactions with children. The level of support OBC received from these witnesses is viewed by the Tribunal with some qualifications. Most of his referees suggest that the problems with his daughter occurred a long time ago.
The Tribunal places substantial weight on the Commissioner’s submissions that it must consider the best interests of children and not any detriment that OBC may suffer if he were not to get a Blue card.
It has taken into account that OBC has been convicted of only one offence that is not defined as a serious offence. The Court has not recorded a conviction but has imposed a penalty. It is not for the Tribunal to retry this matter, but to determine whether this is an exceptional case such that it would not be in the best interests of children for a positive notice to issue to OBC.
The Tribunal must take into account that a Blue card is transferable. It is not satisfied that OBC has expressed any motivation to address the concerns articulated by the Commissioner given that to issue a Blue card to OBC would result in him being eligible to work in child related employment or conduct a child related business generally.
The Tribunal accepts the Commissioner’s submissions that there are a number of factors that make OBC’s case an “exceptional” case.
The assault and aftermath was humiliating and shameful for his daughter.
It is likely that his daughter suffered emotional harm and the incident appears to have also caused emotional harm to her siblings who were no longer able to maintain a relationship with their father.
The applicant has failed to demonstrate any insight or remorse regarding his actions apart from the impact on himself.
The Tribunal has considered all of these matters and has come to the view that this is an “exceptional case” where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to OBC.
The Tribunal orders that the Commissioner’s decision is confirmed.
The Tribunal has determined that it is in OBC’s children’s best interests and in the interests of justice that a confidentiality order is made in these proceedings so that the children cannot be identified in any way.
Accordingly, pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicant, and his children, and the names of the witnesses. The reasons are to be published in a de-identified format.
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