TDJ v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 429
•20 October 2015
| CITATION: | TDJ v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 429 |
| PARTIES: | TDJ (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML083-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATES: | 17 September 2015; 9 October 2015 |
| HEARD AT: | Southport Courthouse, Carrara Health Centre |
| DECISION OF: | Member Joachim |
| DELIVERED ON: | 20 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Public Safety Business Agency to issue a negative notice to TDJ is confirmed. 2. The publication of information that may identify the applicant and his children is prohibited. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – where applicant has had a positive notice cancelled – where applicant has charges and convictions for domestic violence offences in 2014 – where applicant has had earlier offences involving alcohol – where applicant has been depressed – where applicant received some professional assistance – where applicant remains under a domestic violence order – where applicant has limited insight into effect of his behaviour on children – whether case is exceptional Child Protection Act 1999 (Qld), s 9 |
APPEARANCES:
| APPLICANT: | TDJ represented himself |
| RESPONDENT: | Public Safey Business Agency represented by Ms N Taylor. |
REASONS FOR DECISION
TDJ is 35 years old and lives in South East Queensland. He lives with his 11 year old son. He has occasional employment with an Aboriginal dance group. He also does some cultural presentations. He is a proud Aboriginal man who previously held a blue card which allowed him to work with children.
His dance group contracted with an Aboriginal development organisation which is a recognised entity within the child protection regime. It provides family support services, foster kinship care, emergency housing, aged care and cultural information for Aboriginal and Torres Strait Islanders. It was the development organisation that requires TDJ to have a blue card as his dance group often performs dancing and engages in cultural work with their clients.
TDJ was issued with a positive notice and blue card on 10 July 2013. His police information subsequently changed following convictions for contravening a domestic violence order in a South East Queensland Magistrates Court on 13 October 2014 and an earlier conviction in the same court on 25 November 2013 for drunk or disorderly in premises to which a permit / license relates.
The Public Safety Business Agency (‘PSBA’) reviewed TDJ’s eligibility for a blue card on 13 February 2015. TDJ’s positive notice and blue card were cancelled and he was issued with a negative notice. TDJ seeks a review of this decision so he can work with children.
TDJ has multiple entries on his criminal history. None of his charges or convictions are for a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Because of this, he is entitled to receive a blue card unless his case is an exceptional one such that it would not be in the best interests of children for him to have a positive notice and blue card.[1]
[1]Working with Children Act s 221.
The PSBA found that TDJ’s case was an exceptional one.
The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.[2] The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act. This outlines what I have to consider in deciding if an exceptional case exists.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.
The purpose of the review is to produce the correct and preferable decision.[3] The Tribunal may:
a) confirm or amend the Agency’s decision;
b) set it aside and substitute its own decision; or
c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.[4]
[3]Ibid.
[4]Ibid, s 24.
Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act.
Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
Therefore in order to issue a positive notice to TDJ I need to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case does not exist.
Circumstances of TDJ’s offending.
In relation to the offence of drunk or disorderly in premises in which a permit / license relates TDJ could not recall the circumstances. The PSBA had no information from the Queensland Police Service by way of the usual QP9 court brief.
A domestic violence order was issued on 18 July 2014. This order lists TDJ’s ex-partner as the aggrieved and contained a number of conditions, one of which was that he was prohibited from making phone calls or sending text messages to her.
On 1 August 2014 he sent a number of text messages to his ex-partner. This matter was dealt with in the Coolangatta Magistrates Court on 13 October 2014. The text messages involved swearing as well as questions relating to whose vehicle was parked outside of his ex-partner’s house implying she was having an affair.
A second contravention occurred on 5 October 2014, which was also dealt with on 13 October 2014 along with the first breach. On 5 October 2014 TDJ was looking after his two children. His ex-wife arrived to collect the children and an argument followed. The argument related to where and with whom his ex-wife would be watching the NRL grand final that day. TDJ became aggressive in the discussion and produced a 30cm long knife, and in front of his children and his ex-wife said, ‘I am going to kill myself.’ He was distressed and crying.
On all charges he was convicted and fined $750.00.
Why TDJ says he should have a blue card.
TDJ provided a life story to the Tribunal which indicated his early life was relatively unremarkable. He left school in year 11 and commenced working as an Aboriginal dancer, supplemented with some labouring work in a number of capacities.
He stated he met his ex-partner in 2001 and they had two children, a boy born in August 2004, with his daughter born in February 2006. He noted that in 2013 he and his ex-partner were increasingly arguing. This was often in front of the children which he knew was not right. The arguments seemed to get worse, and whilst they were trying to work things out, things escalated and at times became quite nasty.
He stated that he realised the children were the only ones he and his wife were really hurting and at that time sought support from development organisation’s Child and Family services as well as a general practitioner and a psychologist. He stated that he could have handled things very differently.
He stated that he and his ex-partner do not communicate at all now unless it is about the children and that both have accepted the situation and moved on. He advised that his son now lives with him and he sees his daughter a few times a week. He advised that not being able to participate and contribute as a cultural role model and teach, not only for his children, but for others in the community means losing part of his proud Aboriginal status.
He also advised that because of not having his blue card affected his income and he is not able to fulfil his role as father and contribute financially to his children’s needs and wellbeing and this affects his pride.
In oral evidence at the hearing he explained that his breaches of the domestic violence orders were essentially as a result of him not coming to grips with the separation after being together for 13 years.
It was also triggered by his suspicion that his ex-wife was seeing someone else. He advised that he commenced drinking a lot after the separation and became quite depressed. He knew that it was wrong what he did in both instances. He advised that the original order came about because there had been a lot of arguing in the house and that he had punched holes in the wall, there was no physical violence against his ex-wife, and that his children were not there to see it. He acknowledges what he did was a mistake.
In relation to the incident with the knife, he acknowledged that what he did was wrong and he subsequently told his children that it was a silly thing he had done. He acknowledged that it would have had an impact on the children although he could not articulate what this was, apart from his saying that his children didn’t want to see anyone hurt. He advised he held the knife for only a few seconds.
He acknowledged that he had been thinking regularly about self-harm after the separation, probably for about nine months. He has had no further thoughts of self-harm since the incident.
He advised the Tribunal that he still drinks although a lot less than what he was and it is essentially on a social basis at parties. Despite this, he noted he recently had 12 stubbies at a birthday party. He advised the Tribunal that he had seen a psychologist twice weekly for approximately one hour for a few months after the domestic violence incidents. He now calls the psychologist as required, although he has not seen him for some months. It was SV from development organisation who had suggested he see the psychologist and he was happy to do so.
He also saw a medical practitioner and for some time was on anti-depressants. He no longer takes these. He stated that he’s feeling good now and has moved on. He is happy to be looking after his son and he talks to his mother and other family members regularly. He stated that if he started to feel depressed again he would seek help. He has no current partner.
He is hopeful that by getting his blue he would be able to do more dancing as he was before at the development organisation and that he could obtain a teacher’s aide position at a school. He stated that he would like it known that at no point would he have, or would harm his children, or place them in danger and that the same would apply for any other child.
TDJ wants to move on so that he can continue his dancing and singing thereby promoting his culture. He indicated that the most recent event happened when he was depressed and both he and his ex-wife have moved on.
SV the regional manager of the development organisation’s Child and Family Support Services gave evidence on TDJ’s behalf. She was acquainted with the PSBA’s reasons for issuing a negative notice to TDJ and accompanied him to court in relation to the domestic violence breaches.
She was supportive of TDJ receiving his blue card in written submissions to the Tribunal. She stated in these that he was completely aware of the impact of his actions and was very remorseful. It was her view that TDJ had learned from his mistakes and would like to get back in touch with cultural connections, his community and his passion for teaching and sharing Aboriginal culture.
She noted that TDJ was active in sporting teams along with his children and that he supported other teams by taking on a role model with respect to other children who had come from split families. She stated that she had never seen him drunk at any community events and that he was a proud father who supported his family noting a fracture in his character when he split with his partner.
She reported that he had taken the initiative seeking assistance when the domestic violence breaches occurred. At that time she would see TDJ several times per week. She noted that his frame of mind now is very strong and clear compared with how he was and considered he had tools to recognise issues and were able to put these tools into practice if need be.
She noted that even during his negative period he made sure his children attended activities and was in attendance himself. She described him as a respectful, loyal, proud and strong cultural man.
The evidence of Psychologist C
C is a psychologist with whom TDJ consulted following a referral in September 2014. Psychologist C advised that he had initially seen TDJ on a weekly basis, subsequently monthly and then subsequently by occasional calls. He advised he had not seen TDJ in the past three months. He also advised he had seen no material relating to the application or the refusal of the PSBA apart from material from the applicant and SV.
He was aware that the applicant had threatened to self-harm in front of his children. He noted that at first TDJ was experiencing severe depression as a result of multiple stressors and was unable to cope. As sessions progressed Psychologist C advised that TDJ became more positive and proactive in wanting to improve himself and improve his relationships. His initial sessions were dealing with negative coping and alcohol abuse. He subsequently became more positive and developed coping strategies being very engaged with his treatment.
Psychologist C considered that TDJ had actively changed, he was not drinking as much and was focussed on what he needed to do to get his blue card. He had discussed with TDJ being weaned off his medication, but he was not aware that TDJ had stopped the medication completely.
Psychologist C advised the Tribunal that when he last saw TDJ he was much happier and seemed to be in a good place. He considers he has developed insight into the impact of his behaviours on others as he described this to him. He acknowledged that the relationship with the ex-wife would be a trigger, but could not say whether this was a current factor. He noted that TDJ reported that he was more relaxed in confiding in his family now, and that this was a protective factor.
Psychologist C advised that in his treatment sessions there was an emphasis on TDJ needing to focus on what he is in control of and not the things he does not have control over. Psychologist C did not conduct any psychometric testing.
Psychologist C advised that the strategies he assisted TDJ with included TDJ learning to identify his responsibility in conflict, learning how to make choices based on who he is connected to and focussing on control issues. He further noted that TDJ was encouraged to turn to people and places that he knows to make him calmer and to use connections with people that he knows makes him feel good.
The view of the Public Safety Business Agency
In a statement of reasons for refusing TDJ a blue card the PSBA’s Executive Director, Operations Division Peta Robinson states she was satisfied that continuing the applicant’s blue card was not in the best interest of children and young people at this time. She was not satisfied that the applicant had addressed the issues surrounding his recent offending behaviour or that he had insight into the negative effect of domestic violence on children such that he could be entrusted to safeguard the best interests of children in the future.
She noted that the applicant’s behaviour in threatening to kill himself with a knife in front of his children raises concerns regarding his ability to demonstrate restraint and appropriate behaviour in response to relationship stresses particularly when children are present. She stated that the applicant exposed his children to the relationship conflict and demonstrated a complete disregard for his responsibility to promote their physical and emotional wellbeing.
Accordingly, she states this impacts negatively on his ability to continue to hold a positive notice and blue card. In considering whether an exceptional case exists she noted that his recent offending breaches community standards of acceptable and appropriate behaviour and this adversely affects his eligibility to continue to hold a blue card. She was also concerned about possible alcohol misuse by TDJ
At the hearing the representative of the agency Ms N Taylor suggested that I needed to consider whether TDJ has insight into his behaviours, the triggers for his behaviours, the impact of his behaviours on others and what he has done to address the issues that confronted him in the past. She also indicated that I needed to consider TDJ’s response to life stresses, the stability of his mental health and his alcohol consumption.
Ms Taylor suggested that the protective factors involved in this matter were as follows:
· TDJ expressed regret at his actions and acknowledged that he could have done things differently;
· He has some insight into the triggers for his behaviours, including relationship breakdown and depression;
· He acknowledged his children were affected by domestic violence and by arguments;
· He sought assistance from SV;
· His psychologist supports reinstatement of his blue card;
· He has a positive relationship with his children;
· Ms Summers spoke positively of his character, his positive role modelling, his contribution to the community, his work ethic and parenting.
Ms Taylor noted the risk factors as being:
· TDJ’s convictions for domestic violence;
· The recency of his offending;
· The instability in his mental health;
· His problematic use of alcohol in the past;
· His drinking a considerable amount at the time of separation;
· TDJ still drinks a significant amount of alcohol now;
· The alcohol risk factor remains unmitigated;
· The offences occurred in the context of family breakdown.
Ms Taylor submitted that the nature of the offending was threatening and raised concerns regarding TDJ’s ability to respond appropriately to situations of stress, noting that the presence of children at the time of the offence was a significant risk factor and the children would have been emotionally harmed.
She submitted that a blue card holder needs to be child focussed. Ms Taylor noted that TDJ was subject to a domestic violence order until January 2016 and hasn’t yet shown that he is able to relate appropriately to his ex-wife. She submitted that TDJ lacks insight into the impact of his behaviour on both his children and his ex-wife. She acknowledged that there is no evidence that the applicant would physically harm his children, but noted they would have been emotionally harmed as a result of his actions.
Ms Taylor referred me to the case of TAA in the former Children’s Services Tribunal at paragraph [97] which relates to a person’s insight:[5]
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. 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 dependant on the adults around them having insight into their actions and the likely effect on children.
[5]Re TAA [2006] QCST 11.
Ms Taylor discussed the weight that should be given to some of the evidence. She suggested that limited weight should be given to the evidence of CL whose brief reference did not demonstrate any knowledge of TDJ’s offending.
In relation to Psychologist C’s evidence Ms Taylor suggested that I should treat this cautiously as Psychologist C had no previous experience in report writing in respect of children, that he did not undertake any psychological testing, that he has had limited interaction with the applicant, especially in recent months and was unable to comment on the current functioning of TDJ.
Psychologist C also has no knowledge of TDJ’s current alcohol consumption or his relationship with his ex-wife. Ms Taylor also noted Psychologist C had not been given a copy of the PSBA’s reasons for decision or a copy of TDJ’s past criminal history. She submitted that Psychologist C was a treating psychologist and not an independent expert and as such his evidence was at risk of losing objectivity.
Ms Taylor submitted that TDJ’s flair and ability was of no relevance in these matters. She urged the Tribunal to find that TDJ’s was an exceptional case and that the decision of the Agency should be confirmed.
The agency also argued that I should use the power under s 66 of the QCAT Act to prohibit the names of children and other particulars that could identify the applicant, including groups or clubs.
The Tribunal’s view.
What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the objects and intention of the Act.
That is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing.
There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon.
This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary.
I need to have regard to s 226(2) of the Working with Children Act in deciding if TDJ’s is an exceptional case. I have noted the criminal history. I consider the type of his offending, particularly the more recent offending, does have relevance to child related employment, particularly the breaches of the domestic violence order. I have noted the penalties involved.
I note that the offences have occurred within the last 12 months. The breaches of the domestic violence orders do TDJ no credit. TDJ is not the most articulate of persons. He struggled at times to give a detailed explanation of events and of his feelings towards those events.
I do consider, however, that he was genuinely sorry that the events had occurred and that they would have had a negative impact on his children, particularly the last incident which involved the knife.
To his credit he sought assistance, although obviously it would have been better had he sought that assistance prior to breaching the orders. He knew prior to breaching the orders that he was struggling. He was struggling with the effect of the breakdown in his relationship. It would have been far better had he sought assistance at that time.
I will now deal with the protective and risk factors as I see them. In the Commissioner for Children and Young People and Child Guardian v Maher & Anor[6] the Court of Appeal endorsed the approach of identifying and balancing the relevant risk and protective factors arising from the particular circumstances of a case.
[6][2004] QCA 492.
The protective factors as I see them in this matter are:
a) TDJ sought assistance from SV, a psychologist Clinton Schultz and from a general practitioner to assist him coping with his depression and stress following the contravention of the domestic violence orders;
b) He has a strong work history apart from more recent times when his dancing has been reduced as a result of the loss of his blue card;
c) He no longer engages with his ex-partner;
d) He has positive references from SV and his psychologist and the psychologist is supporting of reinstatement of his blue card;
e) SV’s speaking positively of his role modelling, work ethic and contribution to the community;
f) He has support from his family;
g) He has a positive relationship with his children;
h) He has expressed regret, acknowledging he could have done things differently;
i) He has some insight into the triggers for his behaviour, namely the relationship breakdown and depression;
j) He acknowledged that his children were affected by domestic violence and affected by arguments between him and his wife.
Risk factors:
a) The breaches of domestic violence occurred approximately 12 months ago;
b) The last of the domestic violence order breaches involved the production of a knife with threats of self-harm in front of his two young children;
c) He articulates only limited insight into his actions on his children;
d) He is unable to articulate strategies he uses to cope with stressful situations;
e) The instability in TDJ’s mental health;
f) His problematic use of alcohol in the past;
g) His admission of continuing to drink significant amounts of alcohol currently.
I am concerned that TDJ continues to use alcohol to excess. At the birthday party which he referred to in evidence, he advised he had consumed 12 stubbies. This must be of concern. It indicates to me that he does not have his drinking under control. The use of alcohol in the past has been a problem for TDJ. I agree with the agency’s submissions that this risk factor remains unmitigated. I accept the submissions of the agency in relation to CL’s statement.
In relation to the submissions regarding the weight to be given to Psychologist C’s evidence, I am concerned that Psychologist C did not have the Agency’s reasons for decision, nor criminal history. I am not concerned that Psychologist C did not undertake psychological testing as I accept Psychologist C’s evidence that there is no testing available which is validated with respect to Aboriginal people.
I am also concerned, that Psychologist C has not seen TDJ for some months. I do accept his evidence that TDJ engaged positively with Psychologist C, and that TDJ has learned some positive strategies, even though TDJ was unable to articulate these. It did appear from the evidence that TDJ was turning more to people who made him feel calm and who assisted him, and that he is opening up more to his family, and that he is exercising better self-management. It is only early days since the offence in relation to the knife incident.
Whilst there are a number of protective factors in place, I consider that the risk factors in this case outweigh the protective factors. I accept the Agency’s submission that the presence of children at the time of the last offence is a significant risk factor, and that TDJ demonstrates little insight into the effect of his behaviour on his children. I accept the Agency’s submission that the nature of the offending raises concerns regarding his ability to respond appropriately to situations of stress.
A person who has a blue card is able to operate in any area of child employment. Children need to be protected from harm. As noted earlier, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. I am satisfied that on the balance of probabilities that an exceptional case exists, such that it is not in the best interests of children for TDJ to have a blue card at this time.
TDJ will have an opportunity to reapply for a blue card after mid-February 2017. At that time, the current domestic violence order will have expired and more time will have elapsed for TDJ to have demonstrated stability in his life for a longer period of time. It will also give him an opportunity to demonstrate appropriate behaviours towards his ex-wife whilst not being subject to a domestic violence order. It will give him more time to consolidate the positive changes he has already made and to bed down the positive strategies which Psychologist C has assisted him with.
The decision of the Agency to issue TDJ with a negative notice is confirmed.
I accept the Agency’s submissions that this is a matter which warrants an order prohibiting the publication of information that could identify the applicant and his children. There would be no public interest served by the identification of these persons, nor is it in the interests of justice that the children be identified.
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