Vca v Director-General, Department of Justice and Attorney-General
[2017] QCAT 370
•2 November 2017
CITATION: | VCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 370 |
PARTIES: | VCA |
| v | |
| Director-General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML292-16 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 19 September 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 2 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Director–General dated 17 December 2017 is set aside and replaced with the tribunal’s decision that there is no exceptional case. 2. The publication of details in this decision which may lead to the identification of children is prohibited. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to cancel positive notice. FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where cancellation of positive notice – where contravention of domestic violence order – whether not in the best interests of children for a positive notice to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 |
APPEARANCES: | |
APPLICANT: | VCA |
RESPONDENT: | Director-General, Department of Justice and Attorney-General |
REPRESENTATIVES: | |
APPLICANT: | Self - represented |
RESPONDENT: | represented by Mr Iain McCowie an Officer of the Department. |
REASONS FOR DECISION
Background
VCA was granted a blue card in May 2015 to allow him to work for a College in North Queensland mentoring young Indigenous students and working to keep them engaged in the education system. He was very suited to this job because he knew the challenges faced by the students. He is an Indigenous Australian and grew up in low socioeconomic circumstances experiencing homelessness and abuse from biological family members affected by alcohol.
When he was a teenager he was taken in by a Christian family and completed his secondary schooling which he describes as a ‘huge accomplishment’. During these years he had problems with peers, girlfriends and family.
He completed a certificate III in Youth work in 2008 and has worked in remote communities, youth detention centres and schools since that time. He has gained confidence and experience while working with disadvantaged young people in his community.
He met his girlfriend at school and decided to defer his future studies to stay with her. He became a father at 18 years and they had a second child two years later. He found dealing with love ‘overwhelming.’ He didn’t have a lot of positive role models when he was very young and found parenting challenging.
He was about 22 when they broke up and he didn’t know how to deal with it. He sought advice from family members and elders and the family who cared for him during his teenage years. He did not drink alcohol until he was 16 years and even at 21 was only drinking about once a week, however he did drink more heavily when experiencing relationship difficulties.
During his relationship with his partner and in the years following there were incidents of domestic violence resulting in domestic violence orders, breaches of those orders and other criminal charges.
VCA was convicted of a breach of a domestic violence order in 2016. A decision was made by Blue Card Services to cancel his positive notice and blue card on 17 November 2017. VCA is seeking a review of that decision.
Relevant Legislation
Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). The principles for administering the Act are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6. Also see s 360, which states ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.’
Where an applicant has been charged or convicted of an offence that is not a disqualifying offence a positive notice and blue card must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.[2]
[2] Ibid, s 221(2).
The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[3] This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act to determine whether an exceptional case exists.
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34].
The Act sets out the factors that must be considered when making the determination but does not confine consideration to those matters.[4] The factors include the commission, or alleged commission, of an offence, whether it is a serious offence and if so whether it is a disqualifying offence.[5]
[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.
[5]Ibid, s 221.
Any hardship or prejudice is suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[6]
[6]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171, 23.
The purpose of a review is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
It is not necessary to show a mistake of fact or law on the part of the original decision maker when bringing an application for review. Once an application is before the Tribunal the reviewable decision carries no evidentiary or legal weight. Neither party bears an onus of proof. However, each party has an evidentiary burden, this means they must put before the Tribunal the evidence they want considered.
Consideration must be given to VCA’s criminal history. In 2008 he was dealt with on a public nuisance offence. No conviction was recorded and he was fined $150. There is no further police information in relation to this incident. In 2012 following a breach of order charge VCA was placed on a recognisance of $300, a good behaviour period of 12 months and no conviction was recorded. In May 2016, he was convicted of a common assault which occurred on 16 October 2011 and given a probation period of 12 months and in June 2016 he was convicted of a contravention of domestic violence order on 22 November 2015 and fined $400.
There is also evidence of assaults that did not result in court proceedings between February 2010 and December 2011.
The assaults involved abusive language, physical threats of violence against his former partner and her new partner, actual physical violence and harassment, notwithstanding the existence of domestic violence orders. It is of concern that on at least two occasions this behaviour took place in the presence of his children.
It is VCA’s evidence that when he was issued with a negative notice and he could not continue in his employment he moved to Brisbane to try to get work. He has focussed on himself and his own thought processes and he feels he is able to deal with conflict situations now. He has not sought the assistance of any organisational help but he has “guys I look up to in the community’ he can always call if he has issues. He says he removes himself from charged situations and doesn’t engage. He thinks about the consequences of his actions.
VCA said he is embarrassed by his past behaviour which resulted from immaturity. He has learnt not to engage in heated arguments or negativity. He is supportive of his former partner in her role of mother to their children and their relationship is one of respect. They have better communication now than they had in the past.
He is playing basketball and touch football and has good social networks in Brisbane as well as his home town. He said alcohol consumption is not an issue. He is a social drinker but heavy alcohol use is not compatible with his sporting activities.
In March 2017, he started work as a permanent part time delivery driver and works 26 hours a week. His probation period expired in August 2017 and he does not want to be subjected to further orders.
He acknowledges the impact violence had on his children and that it was upsetting for them. He says that has changed now and they get a lot of love and attention. He doesn’t want his children raised in an environment that will bring them down.
VCA’s former partner gave evidence. She said there have been no incidents of violence for over two years. Their interaction is limited to the needs of the children and making arrangements for them. ‘He is sticking to his responsibility on his end’. She said while they have no actual plans in place they will continue to co-parent by trying to understand and listen to each other. She confirmed there is a good network supporting VCA and she can see no issues if he returns to their town. She has no reservations about the safety of the children while in his care.
An employee from the college at which VCA worked gave evidence. She has read the Statement of Reason and says it is not the person she knows. He is extremely remorseful for his behaviour and has never spoken about the mother of his children in a derogatory way. He is highly regarded by the college community. She has seen big changes in him over the last seven years especially in his maturity. He is prepared to ask for help when he needs it. She has been with him in a social setting where he was respectful to elders and was drinking socially, not to excess.
She stated she is aware of the blue card regime and has no concerns about the transferability of a blue card.
A further witness, a Principal of a school with experience in leadership positions, said he has read the Statement of Reasons and was surprised because it was very different to the person he knew. He wants VCA to work with his young students, he has seen the way he brought a calmness to them. He has no concerns about the transferability of the blue card. He has seen VCA in social environments and has never seen him inebriated. He believes VCA is growing as a father, he talks about his daughters non-stop. He has seen him maturing and owning his mistakes. His re-employment in education will be doing a lot for the community.
When considering whether ‘an exceptional case’ exists it is common to identify the risk and protective factors arising from the evidence.
The risk factors can be identified as follows:
a)The convictions for assault and breaches of domestic violence, indicating a tendency to resort to violence and an inability to control anger.
b)The 2014 incident involved actual violence in the presence of a witness.
c)Two offences occurred with children present, indicating a disregard of the impact of violence on children.
d)Conversations with the police in 2011 indicated insights into offending and resulted in domestic violence orders however the behaviours continued into 2015.
e)Extensive education and training in domestic violence issues, and responsibility for delivering programmes in these areas did not result in giving effect to this knowledge in his personal life, suggesting the offending could continue.
f)The offending demonstrated VCA’s ability to separate his private and professional life, thus limiting the benefit of his training in the impact of domestic violence.
g)The offending is recent and probation only finished a few months ago.
The protective factors are VCA:
a)Has the support of, and seeks guidance from, elders in his community.
b)Attends church and has support within the church community
c)Has expressed remorse for his offending and an awareness of the impact of violence on children.
d)Shows insight into his use of alcohol as a coping mechanism to deal with stresses in his relationship.
e)Shows insight into the impact of becoming a father at an early age and the overprotective nature of his dealing with his former partner and her new partner.
f)Is strongly supported by work colleagues who have commented on his ability to manage high stress and volatile situations.
The incidents of domestic violence over the course of his relationship and the recent offending, could be enough to classify this case as an exceptional case. While VCA was able to describe the circumstances of each incident, and the extenuating circumstances which heightened his response, the fact remains that even when under a domestic violence order, he initiated contact with his former partner in breach of that order. He was prepared to do so without considering the impact his actions would have on his daughters. These offences are serious and must be given great weight. They indicate a lack of maturity and disregard for both the rule of law and the rights of children to feel safe which, if continued, would present a risk into the future.
However, when deciding if past behaviour is a true indicator of future risk to children I have to be prepared to accept that people can change, mature and learn from their experiences.
I have found this to be the case with VCA.
I have placed great weight on the testimony of his witnesses. These include people who have worked for a long time in the education system. It is their job to keep children safe and they have indicated they are satisfied VCA does not pose a threat to children. On the contrary, they say he has an advanced understanding of children and is able to calm and work with them in a highly effective way. They both indicated he has owned his behaviour, shown remorse, suffered from the impact of his behaviour by losing his job and has become a changed person. He is maturing and now poses very little risk to children.
I am satisfied that in these circumstances even consideration of the transferability of a positive notice, and the fact it would allow VCA to engage in any child related employment does not give rise to an exceptional case.
I have listened to VCA’s former partner and read her applications for domestic violence orders. It has carried weight that even on those documents, some four years ago, she was careful to ask for orders that did not restrict VCA’s contact with his children. She specifically asked for the order to not include the children. She gave evidence of a relationship of respect and cooperation. This suggests to me that VCA may have been careless about the presence of the children but he would not intentionally harm the children and was, to some extent, motivated by his concern for their safety, albeit behaving in an unacceptable way himself.
I have carefully considered the evidence surrounding VCA’s employment, especially his early days before he became engaged with education. He ran domestic violence workshops in remote communities and tried to bring an awareness of its impact to the men in those areas. It is true that at the time he was not able to apply that knowledge to his own circumstances. However, I accept he does have the theoretical knowledge and has been able, in more recent times to apply that knowledge to himself. I have given weight to VCA’s early childhood and accept that when faced with parenting at a young age he found it overwhelming. He did not have role models to draw on from his own early childhood.
I have given weight to the recent offending behaviour however against this recent history the last incident was over two years ago, there is evidence of changes to his maturity in that time and circumstances have changed. It is now more important to VCA to maintain loving relationships with his daughters than to continue to harbour the hurt arising from his failed relationship.
I am satisfied that VCA does come from a strong supportive network with people who have a great deal of knowledge of the pressures faced by indigenous men. They are very aware of the damage caused to the community by domestic violence and alcohol. Now they are aware of what has occurred in the past they will try to assist VCA to ensure he does not again engage in harmful behaviours.
While there was no professional evidence, I have formed the view that when VCA became a father and responsible for his children at eighteen years of age his own normal development was interrupted. He spoke of ‘acting out’ and it is clear he accepts his own immaturity. Being removed from that environment has allowed him to reflect, develop and mature so he has now reached the level of maturity expected of a thirty year old man.
For these reasons, I am satisfied VCA does not pose a level of risk to children such that it would not be in the best interests of children for him to be given a positive notice.
I have found no ‘exceptional case’ exists.
Identification of VCA could lead to the identification of his children who have been referred to in this decision. I have therefore decided to make a non-publication order.
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