RF v Public Safety Business Agency
[2015] QCAT 532
•25 November 2015
| CITATION: | RF v Public Safety Business Agency [2015] QCAT 532 |
| PARTIES: | RF |
| v | |
| Public Safety Business Agency |
| APPLICATION NUMBER: | CML289-15 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 17 November 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Ford |
| DELIVERED ON: | 25 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Public Safety Business Agency is set aside and a positive notice be issued to RF by Wednesday, 2 December 2015. 2. The Tribunal prohibits the publication of any information which identifies or could lead to the identification of a child, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | WORKING WITH CHILDREN – BLUE CARD – where convictions when applicant was a child – where not serious offences – whether exceptional case or not – whether confidentiality order should be made Child Protection Act 1999 (Qld), s 189, s 194 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA34 |
APPEARANCES:
| APPLICANT: | RF representing himself |
| RESPONDENT: | Public Safety Business Agency represented by Alyce Joseph |
REASONS FOR DECISION
RF was 15 years old when he moved from Brisbane to live with his father in a regional Queensland town. This move would have a detrimental effect on RF, on his decision-making and on his behaviours leading to criminal convictions as a juvenile.
His parents had separated some years previously and the living arrangements with his mother, whereby he had been treated as the ‘golden haired’ boy, had broken down. His mother had re-partnered and the tension in the new household led to him living with his adult sister temporarily until his father arranged the move for him.
In 2015, the criminal offences were unearthed by the Public Safety Business Agency (‘the Agency’) when they conducted a criminal history check on RF. He needed a blue card in order to go on placement or work with children as a student studying a Bachelor of Nursing at university. However, the Agency rejected his application and issued him with a negative notice. The agency considered that, even though these offences were not serious offences under the relevant legislation, his case was exceptional such that it would harm children for him to have a positive notice (a blue card).[1]
[1]Working with Children (RiskManagement and Screening) Act 2000 (Qld), s 221.
In his view, RF’s life had taken a significant positive turn since his troubled days as a schoolchild in the regional town. He had moved back to Brisbane, is in a stable relationship with his girlfriend, and living in a family environment with his sister, her husband and their three children. He sought a review of the Agency’s decision to the tribunal.
What were the circumstances of RF’s offending
RF’s introduction to the school environment in the regional town did not go well from the beginning. He was required to leave his first school. In 2011, he moved to a different school and the staff were informed that his father held a negative view of RF’s academic aspirations and showed little emotional availability to his son.[2] Additionally, they understood his familial problems were at the root of his misbehaviour.
[2]Written statement, CL.
His pastoral mentor at school, CL, submitted that things deteriorated in 2013, where he came to school in an unwashed, unironed uniform on a regular basis. He was constantly late, emotionally distant and isolated from his peers. Many of his teachers and peers deserted him when criminal charges were pressed against him.
RF’s father was an alcoholic, drinking a bottle of spirits per night. He would boast about his fighting prowess to RF. He was also violent in the home, with RF reporting his father punching holes in the walls, threatening him and hitting him. RF started to stay out late at night to avoid going home until he knew his father would be asleep. Teaching staff considered RF to be an exceptionally intelligent but troubled young man.
On 24 February 2013 he attended an after formal school party for Grade 12 students. He stated he knew he was unwelcomed but had gone along anyway with a friend, as there were other young people in his year attending. He had been drinking. He was splashed in the face with a drink by an ex-girlfriend, who had led him outside to leave the property. In anger, he kicked over two drums holding burning logs. The host student’s father asked him to leave. RF states he was assaulted first by this man, who had been holding a stick with ambers from the fire, and RF left the property. There are differing accounts regarding this sequence of events. He came back into the property to get his belongings left behind and to find his transport friend. RF came back with a wooden fence picket and attacked the father who was guarding the gate.
The struggle with the father continued and they knocked over a colour bond fence. The father fell over and he blocked his face from being kicked by RF. On 20 February 2014, RF appeared in the Children’s Court for the charges of trespass, wilful damage and assaults occasioning bodily harm whilst armed / in company. No conviction was recorded, he was ordered to serve 12 months probation and pay restitution of $692.
Further offending involved RF assaulting a past student in the car park at the school on 24 October 2013. He states his girlfriend (with whom he is still in a relationship), phoned him to say this man had inappropriately manhandled her at the school. RF had not attended that day and he ‘saw red’ and went to confront this man and challenge him about his behaviour towards his girlfriend. RF was fined $1250 with no conviction recorded after appearing again in court on 5 March 2014 for the charge of assault occasioning bodily harm.
RF appeared in court again on the 24 March 2014 this time for possessing dangerous drugs, possessing utensils, and possessing property acquired for committing a drug offence. These offences occurred on 6 December 2013 when the police raided his father’s home and found them in RF’s possession. No conviction was recorded and he was fined $1500.
RF’s offences occurred in 2013 and there is no evidence of charges prior to or after 2013.
What is an exceptional case?
Exceptional case is not defined in the Working with Children (RiskManagement and Screening) Act 2000 (‘the Act’). To be exceptional the case needs to be out of the ordinary, unusual or special. The law to be applied is referred to in appendix “A” by the Agency and it is the same law that the tribunal must consider. I have discretion about determining if an exceptional case exists, taking into account this legislation and the circumstances surrounding the offending.
Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. I must have regard to s 226 of the Act in deciding with an exceptional case exists. The tribunal conducts a review of the merits of the Agency’s decision by way of a fresh hearing.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.
The tribunal will consider the approach endorsed by the Court of Appeal in identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case.[4]
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Why RF should not have a Blue Card – the Public Safety Business Agency’s view of risk factors
The Agency determined that RF’s case is exceptional and that he should not have a blue card. The reasoning for this included the following:
RF has recent convictions for offending relating to two incidents of persistent violence, one of which involved a weapon (offending occurred in February and October 2013). The offending raises concerns as to the applicant’s ability to respond appropriately to conflict.
The February 2013 offences incurred a 12-month probation order. Given RF’s age and the lack of prior offending, this is a serious penalty, reflecting the seriousness of his conduct and the need for ongoing intervention.
Recent convictions related to possession of cannabis and drug related utensils (offending occurred in December 2013). These offences raise concerns that ongoing drug use may impair his ability to act protectively in the best interests of children in his care.
RF received large fines suggesting the courts took into account aggravating factors relating to his other offences.
RF’s youth (being 16 to 17 years old at the time) does not significantly mitigate the concerns. His written submissions downplayed his persistent and dangerous behaviour on the night in February 2103 and suggest he attributes responsibility to others. For example, he wrote:
In a workplace I am not going to be intoxicated and surrounded by nasty, ex-girlfriends who throw drinks in my face. In all honesty, too, the father of the party assaulted me first. I attempted to press charges but my “friends” wouldn’t testify for me and was outnumbered on accounts that happened that night.
RF’s drug use was more ongoing than he indicated and he significantly downplayed his drug use in his submissions. While he asserted the cannabis had been used once to make cookies a year before, several phone text messages related to purchasing cannabis. He had admitted to using drug related utensils to smoke cannabis.
As a whole, the police information reflects adversely on RF’s ability to provide a safe environment and to present as a positive role model to children in his care.
The applicant has convictions for drug related offending, being in possession of cannabis, drug related items, including utensils for use to smoke cannabis. This recent personal drug use (in 2013) raises concerns about his ability to care for and act protectively towards children, due to the potential for him to be under the influence of drugs while children are in his care.
He has two convictions for violent offending in 2013 that involved persistent violent behaviour. Sustained aggressive and unsafe behaviour in February 2013 culminated in RF striking the occupant of the property multiple times with a fence picket, causing significant injuries. Children and young people would have been present at both incidences.
Concerns are raised as to the tendency of RF to respond to personal conflict with sustained violence. Children have the right to receive services from persons who possess the knowledge, skills and strategies to manage anger and frustration safely and to model appropriate behaviour.
The criminal history is of direct relevance to RF’s eligibility to work either with children where situations of conflict may be expected to occur, with children present or in the presence of children, as it suggests he may act in a manner, which exposes the children to physical or emotional harm.
In final submissions, the agency representative acknowledged a number of positive factors in RF’s favour. However, risk was not mitigated, including for the following reasons:
· RF was still using alcohol and smoking cigarettes and there are no steps being taken by him formalising an intention to stop these habits;
· He has been drunk 6 times in the past year and alcohol was a major contributor to his offending (in the offence February 2013);
· he has been difficult to engage regarding remorse for his actions;
· the focus (of his insight) has been the impact on his own life and not the impact on others;
· he has minimised his behaviours in his written statement;
· while he completed counselling in February 2015, it is a limited timeframe to show he will not repeat his behaviours;
· he is of an age now where there will be exposure to difficult situations that would involve alcohol;
· witness statements should be treated cautiously as they were not tested orally;
· the weight afforded oral evidence by family should be tempered as they are subjective;
· an insufficient period of time has passed to be satisfied that he would not resort to reoffending in the future.
Why RF should have a Blue Card – his view of protective factors
At the hearing, the Agency representative asked RF why he was before the Tribunal. RF identified that he was issued a negative notice because his case was considered exceptional. He ‘stood out’, and because of his young age the offences would ‘flash alarm bells’. He did not know many young people who had the history he did. He understood the Agency did not want people being a threat or children unsafe. He was angry with himself for his actions, and felt hate, resentment and frustration towards himself.
Regarding the offences in February 2013, RF acknowledged it ‘was all [his] fault, [he] did not set out to ruin the night’ for the partygoers at the after formal party. He appreciated that the father (the complainant) would have felt threatened by his aggression. He stated the father had attacked him first with one of the sticks from the overturned fire drum, but no one gave evidence to support him. The ex-girlfriend’s father was a police officer and she was advised not to make a statement to the police. The alcohol had impaired his judgment, it being one of the first times he had been drunk, with about 100 people there, with a lot of drinking at the party. He had unravelled.
RF’s reaction to the host’s father was not at all justified and that is why he went to court. He no longer wanted to ‘be that idiot, that person’. He knows now violence is not ‘the way to represent yourself in the community’. In grade 12, he had gone downhill, hanging out with the wrong crowd late at night and stopped caring.
The assault in October 2013 involved his current girlfriend, who had been in an abusive controlling relationship with a male past student. The school had dealt with this situation internally, setting boundaries on their contact. The ex-student had also been suspended for three days previously for touching her inappropriately. She had rung RF upset, to say this ex-student inappropriately manhandled her. RF drove to the school to pick her up. The ex-student had driven into the car park, ‘doing a skid’ and RF ‘saw red’. He had wanted the ex-student to stop pestering her. He got out of his car and assaulted her ex-boyfriend. He acknowledged other young people would have been in the area as it happened at 3 pm. He had not been drinking.
If he had the time over, RF would have gone to the school office to find out what had happened from a reliable source, take the right direct course of action, and not assault the ex-student. In 2013, to him it was a matter of ‘an eye for an eye’ and to stand up for what he believed in, to prove ‘his place’.
RF was exposed to marijuana at age 15 years old when he went to the first school he attended in the regional town. In December 2013, the police raided his father’s house. He believed it was through a tip off by a male friend who tried to sleep with his girlfriend. It was a frightening experience with him and his girlfriend being strip-searched. He never wanted to have that experience again. The $850 found was not from selling drugs but have money left over from his ‘schoolies’ fund.
He went ‘downhill’ in grade 12 (2013) and he did not get his Queensland Certificate of Education, even though he had wanted to finish Grade 12 to prove to his father and to himself he could.
He acknowledged he was not a good role model then, when he was meant to be acting like a leader in grade 12. At the year 12 Retreat, he broke down and confided in his mentor, CL. CL wrote about this retreat:
Many staff – even those who had dismissed [RF] as a ‘hopeless case’ as a result of his now-widely-known drug use and violence – remarked that he now appeared to be a sad, lonely, deeply scarred boy: hardly the witty, self-confident young man who had joined [the school]p two years prior.
With the court experiences, the aftermath of being expelled from school and the adverse impact on his school results, RF found himself working in early 2014 where his father worked.
A big turning point for RF was when his great uncle told him how badly affected he was from RF’s behaviour. His great uncle treated him like a son and he was not happy with the drug usage. His girlfriend has been a big help as well, helping him understand that it is not normal to rely on drugs, and that changes needed to be made.
RF started his rehabilitation through the Youth Justice Program (‘YJP’) as part of his probation. He had counselling sessions weekly for a year, first in the regional town and then in Brisbane when he moved back in September 2014. BC, a caseworker with the YJP, supported and substantiated the information in RF’s personal statement to QCAT. He completed this program in February 2015. RF had a great relationship with his caseworkers and the focus was on the causes of his offending and then moved to how to better himself.
RF stated the program helped him to reflect on his poor behaviour, to develop coping strategies and to have control over his future. He realised he had been in a bad place and to get to a better place, he cannot reoffend. RF never breached his order and he did not take the conditions lightly.
The family believe RF holds a trusted and valued role now. His sister and brother in law gave oral evidence and both spoke of the vital role RF played in providing care to his 10-year-old nephew, who has severe cerebral palsy. Both asserted that RF has taken ownership of his offending behaviours. They were shocked when they learned of the assaults.
RF’s sister is a qualified youth worker of several years and RF sought her advice if he struggled with issues. She was his confidant. He lives in a strong supportive, structured family environment now, where drugs are not tolerated and alcohol use at home is kept to a minimum. RF stated he might have two beers every couple of weekends. She knew that RF would go out for drinks with his mates for special occasions. RF disclosed that he had been drunk on six occasions in the past year at special events. She confirmed that he has not taken drugs since April- May 2014.
RF submitted that he has successfully completed his first year of a Nursing course, being admitted under special consideration. He looks forward to his first placement in an aged care facility, which he needs to commence in January 2016. His girlfriend is studying at university level as well and they motivate each other. He believes he has the support and will power not to follow the path of his father. His past behaviour occurred when he was ‘ignorant and stupid’, when he had a ‘look at me’ persona. In reality, he was ‘a tosser’.
Is this case exceptional?
While the Agency argued little weight should be placed on the written witness statements or the oral evidence of family (who may be subjective in their appraisal), the evidence gave a comprehensive and well-rounded picture of RF’s life at the time of his offending behaviour. I was afforded, as well, a fulsome understanding of the young man RF has become today.
I do not take the gravity of RF’s offending lightly. He acknowledges that the assaults were aggressive and threatening and that it took the YJP counselling to learn to take responsibility for his behaviours. The Agency’s views of the assaults and drug offences for his young age are not unreasonable. The risk factors, as articulated by them, highlight that ongoing alcohol and drug related behaviours can lead to severe injury to others through violent means. The destructive path that he was on in 2013 was not conducive to him being a leader or a good role model to younger students at his school. I acknowledge that the Agency remains concerned for the recency of his offending, being over a period of several months in 2013.
That said, what constitutes an exceptional case is a matter of discretion and I must consider the merits of this case, taking into account all of the information before me.
I am not satisfied that it would harm children for RF to be granted a positive notice. The protective factors outweigh the risk factors in this case. RF presented as a mature young man who had faced significant challenges in his young life, including mixing with what would be considered ‘bad company’ and indulging in criminal behaviours.
RF repeatedly showed insight into his past offending behaviour throughout the hearing. He also demonstrated remorse for his actions, while articulating how people would feel threatened by his past aggression and anger. He took ownership for his actions and was able to identify what he would need to do if presented with similar situations of conflict in the future. He no longer ‘sees red’ as he terms the angry state he used to get into in the past.
He was honest in acknowledging he continued to struggle with smoking tobacco. I accept his evidence, and that of his family, that he does not take drugs. RF’s sister and brother in law impressed as witnesses and as a couple who held a strong commitment to supporting his endeavours. I consider it very relevant that his sister holds a professional position as a youth worker and that her evidence was more than simply a subjective view, as asserted by the Agency’s representative.
RF is not alcohol free. While not condoning such behaviour, I note that it is not uncommon or unusual for young people to get drunk on special occasions. Schoolies Week is a case in point. However, I acknowledge, not all young people who drink become violent or are charged with assault for violent behaviours. What is relevant is that RF has developed an awareness of and appreciation for, the consequences of his actions and is able to minimise his drinking behaviours.
I do not agree with the Agency’s contention that too little time has passed for me to be satisfied that he will not repeat his offending behaviour. RF has not had any further charges since 2013. He has left the unstable environment of his father’s home. He is no longer living under the threat of violence himself nor exposed to daily alcohol usage. He chose to leave the regional town to get away from people who adversely influenced his decision-making. He appreciates now, and demonstrates through his current lifestyle, that a drug taking violent lifestyle is not necessary to be valued by peers.
Since his convictions in 2014, RF has successfully completed his probation requirements, with the YJP being of benefit to him as it was intended to do. He engaged in counselling weekly through this program. He gained the intended insight into his offending and gained a desire to become a better person. He no longer wanted to continue along the destructive path he set upon in 2013. RF is an example of how the YJP can support and guide young people to change their focus and those behaviours that are socially and legally unacceptable. His story is a success story.
What impresses, is that RF has taken on a crucial role in caring for his young nephew who has a severe disability. His sister and brother in law trust him to run the household, if required, while they are both at work. This includes two other children as well. There is no evidence that RF does not manage such a responsibility nor that he is not able to manage difficult situations that may arise in such circumstances. This arrangement demonstrates a maturity and commitment by RF that deserves acknowledgement and praise. It also demonstrates how far he has come from the young person who was ‘sleeping rough’ in 2013.
It was most upsetting for RF to hear from the Agency that he was not a good role model now. Certainly when he was in his offending lifestyle, he was far from what one would consider a good role model. RF acknowledged this at the hearing. However, he demonstrated relevant attributes even then. He remains friends with a younger teen to whom he was a mentor at his school. He wants to be a nurse or an ambulance officer, to make a difference. To brand him for his actions and decisions in a brief period of his life is dismissive of his current endeavours.
The legislation was not intended to prevent young people from benefitting from, nor society benefitting from, the positive changes they make in their lives. The responsibility he accepts without question within his home environment is demonstrative of a mature, caring young adult, not the actions of the angry and lost young person he was two years ago. He does not want his past offending behaviour and decisions to ‘define’ him. I agree. RF does not want to be dragged back to ‘that person’ he no longer is nor wants to be.
Conclusion
I must make the correct and preferable decision and I must consider the welfare and best interests of children. I have weighed up all of the evidence before me and considered the legislation that guides decision makers regarding Blue Cards. I find that RF’s case is not exceptional. His offending occurred when he himself was a child under 18 years of age. He has overcome significant life challenges. He is well placed to contribute to society in positive and meaningful ways. He currently demonstrates a mature insight into the adverse impacts of violent, alcohol or drug related behaviours. He lives within a structured familial environment that supports his endeavours. These factors are protective and they outweigh those risk factors that existed in 2013.
The decision of the Agency is set aside and a positive notice be issued to RF by Wednesday 2 December 2015.
Non-publication of identifying information
Under s 66 of the QCAT Act, I have the power to prohibit publication of information that may identify persons affected by the proceeding; this includes identifying particulars, which could reasonably lead to the identification of children. The Tribunal prohibits the publication of any information which identifies, or could lead to the identification of a child. The public interest is still served with the publication of these reasons, albeit in a de-identified format.
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