SJ v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 426
•17 August 2014
| CITATION: | SJ v Commissioner for Children and Young People and Child Guardian [2014] QCAT 426 |
| PARTIES: | SJ (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML152-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 17 April 2014 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Suthers |
| DELIVERED ON: | 17 August 2014 |
| DELIVERED AT: | Bundaberg |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 2 July 2013 to cancel a positive notice and issue a negative notice to SJ is confirmed. 2. The Tribunal prohibits the publication of the names of the Applicant, his children and his former spouse. |
| CATCHWORDS: | Bluecard – whether an exceptional case – insight of Applicant – where history of domestic violence |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | SJ |
| RESPONDENT: | Mr Craig Capper representing the Commissioner for Children and Young People and Child Guardian |
REASONS FOR DECISION
SJ is entitled to the issue of a positive blue card notice unless there are circumstances, which make this an “exceptional case”, such that he should not receive one[1].
[1]Commissioner for Young People and Child Guardian Act 2000 (Qld) s 221(2).
The Acting Commissioner says that SJ's criminal history and, more particularly, his lack of insight into his behaviour which led to it, along with there being a recent pattern of offending behaviour related to domestic violence, constitutes exceptional circumstances in this case.
SJ was issued with a negative blue card notice. He has appealed that decision.
SJ is a 35-year-old man who, in addition to not having ever committed any "serious" or "disqualifying" offences[2] has stable work and a positive involvement in sport. He has, through a family law process, which included the preparation of a detailed family report, significant time with his own children. That significant time is in accordance with the recommendations of a family report writer who is very experienced in the preparation of such reports and who spoke to SJ's former partner, against whom he perpetrated the acts of domestic violence.
[2]Ibid s 221(1).
SJ also has people who speak highly of him and his interaction with children but there was no evidence from which the Tribunal could be satisfied that those people, most of whom were not available to be questioned at the hearing, were aware of the issues of concern to the Tribunal.
Against this, SJ has a considerable criminal history including charges of break enter and steal, possessing dangerous drugs and utensils, dealing with shop goods, stealing and dangerous operation of a motor vehicle in his late teens and early 20s. He also has three recorded convictions for breaching domestic violence orders in 2013.
Whilst SJ's criminal conduct as a whole is relevant and has been considered, there are two aspects of that history, which stand apart.
Firstly, in 1998 SJ and some of his friends decided to attend a takeaway store. He drove his friends there in his car. His friends stole some items from the store. Because he knew he was intoxicated and did not want to be arrested, he tried to drive away with his friends in the car. He was approached by a passer-by who tried to prevent him and his friends leaving the scene. While another occupant of the car held on to the passer-by, SJ drove the car some 60 meters, dragging the victim along the roadway. When the victim fell away from the vehicle onto the bitumen road, SJ did not attempt to stop and check on his well-being. He was imprisoned for his conduct.
Then, last year, after a tumultuous breakdown of the relationship between SJ and the mother of his two children, SJ engaged in an extended course of conduct involving multiple breaches of domestic violence orders, which were made against him. None of the domestic violence breaches involved physical violence, but did include contacting the complainant, using abusive language to her, approaching the complainant at school in the presence of his children (in breach of the Order), and attending the complainant’s home.
It is not simply SJ’s behaviour when committing these offences, which was of concern to the Acting Commissioner. It was submitted on behalf of the Commissioner, and the Tribunal accepts that SJ has little or no insight into his offending behaviour or the effect it has on others including, relevantly, his own children.
That submission was borne out by the evidence before the Tribunal including SJ's own evidence and presentation. SJ does not take responsibility for his own actions. His views on the history of these matters show a remarkable lack of empathy for the victims of his crimes. Until recently, he harboured the view in relation to the dangerous operation charge, that it was the victim who was the cause of the incident. Even more recently he told the Tribunal that there was some relevance to him being a "lowly trolley collector" and the victim and others who assisted him being "prominent businessmen" when he was sentenced to imprisonment.
In relation to the domestic violence incidents, it is more understandable that SJ may have a very different view of the events in question to that of his former partner. In an acrimonious separation, the Tribunal can accept that it may be more difficult for SJ to reflect on his behaviour. However, in preparation for and at the hearing he insisted on referring to the breaches as being "technical" and maintained the opinion that his former partner’s father being a police officer was significant in him being charged and convicted. He could attribute little blame to his own actions.
SJ has no real understanding of his part to play in the issues that led to his convictions. At no point did he show any appreciation that his criminal behaviour toward his former partner could have had a negative impact on his own children, despite them being in either his or her care when the offences were committed.
In questioning by the Tribunal at the hearing, SJ acknowledged the relevance of these issues, but only after considerable emphasis was placed on them by the Tribunal. The Tribunal can have no confidence that SJ understands the triggers, which led to his offending behaviour and is therefore in a position to avoid such behaviour in the future.
The question for the Tribunal, then, is whether this history of offending, coupled with a significant lack of insight, constitutes an exceptional case in the circumstances.
The decision is to be made considering the protective factors and the factors that indicate risk[3], “unhampered by any special meaning or interpretation[4]”. The Tribunal’s paramount consideration is the welfare and best interests of children[5], guided by their right to be cared for in a way so that they are protected from harm and their well-being is promoted[6].
[3]Commissioner for Young People and Child Guardian v Maher and Anor (2004) QCA 492.
[4]Commissioner for Young People and Child Guardian v FGC (2011) QCATA 291.
[5]Commissioner for Young People and Child Guardian Act 2000 (Qld) s 155.
[6]Ibid s 6.
The Tribunal must determine the matter afresh, looking at of the evidence available to it, with no onus of proof on either party.[7]
[7]Commissioner for Young People and Child Guardian v Storrs (2011)QCATA 28.
The Tribunal finds, on the balance of probabilities, that the significant lack of insight shown by SJ, given his history of offending behaviour, is a risk, which constitutes an exceptional case. It would not be in the best interests of children if SJ were granted a blue card at this time.
The decision to issue a negative notice to SJ is confirmed.
Non-publication order
The Tribunal makes a non-publication order pursuant to s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) with respect to the name of the Applicant, his children and former partner.
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