VS v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 63
| CITATION: | VS v Commissioner for Children and Young People and Child Guardian [2014] QCAT 63 |
| PARTIES: | VS (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML070-13 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 24 July 2013 and 5 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Presiding Member Quinlivan |
| DELIVERED ON: | 14 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the decision of the Commissioner to issue VS with a negative notice is confirmed. 2. The Tribunal prohibits the publication of the name of the applicant, the names of the applicant’s children and the names of the witnesses. |
| CATCHWORDS: | Children’s Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional Child Protection Act 1999 (Qld) s 9 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | VS represented himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian was represented by Ms Louisa Keown and Ms Georgina Thomas |
REASONS FOR DECISION
The Applicant (VS) is a 37yo Samoan man. He says he is lucky to be married to VU who is 7 years older than him. They have been blessed with ten beautiful kids. He says that his culture, religion and family play a big part in his life.
The Applicant remembers a strict but fair upbringing that taught him and his siblings to ‘love god and our parents with all our hearts’. They had to respect their elders and those around them. They had to always be honest because lies could hurt or affect lives. They should fear god and fear and respect the law.
He claims that all of these things have made him the person he is. He says that he does not claim to be perfect because no one is. He is trying to say that he is an average person trying to bring up his family the best way he possibly can.
The Applicant says that his current situation is a result of his wife’s family who have done everything possible to destroy him and the sad thing is that they are using his 2 oldest girls to get him. He acknowledges that he and his wife have problems but that they are together trying to work things out by enrolling in Relationship counselling.
The Applicant was issued with a positive notice and a Blue card on 6 October 2010. On 4 November 2011 the Commissioner was notified of a change in his police information and a reassessment of his eligibility was conducted. As a result on 12 December 2012, the Commissioner decided to cancel the Applicant’s positive notice and Blue card.
The information revealed that the Applicant’s criminal history included a conviction for “assault police officer”, 3 charges for “common assault” and 1 charge for “assault occasioning bodily harm whilst armed in company. These offences are not classified as “serious offences” for the purposes of the CCYPCG Act.
The charges did not proceed, because the Prosecution offered no evidence. In relation to the conviction for assaulting a police officer, no conviction was recorded and the Applicant was fined $750.00.
On 23 April 2013 VS filed an application with QCAT seeking to set aside the Commissioner’s decision.
Since the offence is not considered a “serious offence” under the Act, the Commissioner must issue a positive notice to the person unless the Commissioner is satisfied it is an “exceptional case” in which it would not be in the best interests of children for the Commissioner to issue a positive notice. In that event, the Commissioner must issue a negative notice to the person. It is this issue that the Tribunal must address.
The standard of proof that the Tribunal must be satisfied about is the “balance of probabilities”. However, there is no onus of proof on either the applicant or the respondent.[1] The Tribunal must consider all of the evidence and reach its own conclusion.
[1]McDonald v Director General of Social Security [1984] FCA 57.
The Tribunal is guided by the decision of Philippides J in Maher[2] that 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 and Anor [2004] QCA 492.
The Tribunal is also guided by the judgement of Young CJ in Eq Commission for Young People v V[3] in paragraph 42 of his judgement where he refers to the necessity to find a ‘real and appreciable risk’ to the safety of children.
[3](2002) NSW SC 949.
What went wrong…?
According to the Applicant, as a father he believes he must provide a family house, food, family outings and holidays.
He obtained a job at the Brisbane Youth Detention Centre that he loved. He found it rewarding to give other young people help and advice or simple listening over 2.5 years. At some point he realised that he had a better rapport with the young females at work than with his oldest daughter.
He claims that as a child he was disciplined with a hose, jug cord, vacuum hose and the wooden spoon just to name a few. However he says that his father was never a cruel or unfair person. He says that in his culture discipline was always there.
He promised himself that he would not use any of those items on his own children. However during the conduct of these proceedings, he admitted using the belt ‘but always within reason and without the cruelty’ that he has been accused of. He claims that he has seen the damage severe punishment can do to young people. He says that it can break their spirit and send them on the wrong path. He does not want that for his children.
In 2006 the Applicant was convicted for the offence of “assault police officer”. Further details of this offence were not made available to the Tribunal. The Applicant also had 3 charges for “common assault” and a charge for “assault occasioning bodily harm whilst armed/in company”. The CCYPCG Act[4] provides that the Tribunal can take charges into account when making an employment screening decision.
[4]Commission for Children, Young People and Child Guardian Act 1999 (Qld) (CCYPCG Act) ss 221(1)(b)(iii) and 221(2); Schedule 7, definition of “criminal history”.
The charges related to incidents that are alleged to have occurred between August and September 2010 and in October 2011. The charges involved allegations that the Applicant engaged in corporal punishment/violence against two of his children and domestic violence against his wife. The Tribunal was provided with copies of very detailed original statements given by the complainants. The statements were corroborated by a number of witnesses and were set out in various reports in materials provided by the Department of Communities, Child Safety and Disability Services.
The various complaints against the Applicant were subsequently withdrawn by the complainants in the Beenleigh Magistrates Court on 18 January 2013. However, the Commissioner submits that there is very strong evidence to support the truth of the allegations.
The Commissioner submits that the original complaint by the Applicant’s wife was made on the day the alleged incident occurred. She gave a detailed account and said that similar incidents had occurred previously. A number of witnesses gave individual accounts containing similar versions of what had occurred.
Records from the Department provide consistent details of what had happened. They also indicate a significant history of domestic violence by the Applicant against his wife and frequent incidents of violence against his children. An independent investigation and assessment conducted by the Department found ‘that the children have been subject to years of physical and emotional harm due to their exposure to domestic violence and physical discipline’[5] by the Applicant.
[5]CCYPCG - 046.
A further investigation by the Department resulted in the 2 eldest girls being removed from the home because it was determined that they were at immediate risk of further harm.
The Commissioner points out that it was only when the consequences or ramifications of the allegations became apparent to them that his wife and daughters withdrew their allegations. At the time the Applicant and his wife were reconciled.
It is clear to the Tribunal that the impact on the family of what has occurred is significant. The Applicant’s employment and his capacity to support his large family has been severely affected by his inability to retain a Blue card. In the circumstances the Commissioner questions the motivation of the complainants in retracting their complaints.
The Commissioner emphasises that the Applicant has a conviction for “assault police” in 2006 that demonstrates that there is prior independent evidence of him engaging in violent behaviour before the recent allegations. The Commissioner expresses concern that the Applicant demonstrates a propensity for violence when faced with conflict or when feeling aggrieved, that is a particularly relevant factor in assessing whether this is an exceptional case.
The Commissioner has provided a summary of the allegations made against the Applicant. Regarding the allegation of common assault around August 2010 the Commissioner says that the complainant was his 14 year old daughter. He allegedly slapped her across the legs more than 10 times with a leather belt before slapping her across the face.
It was alleged that the mother attempted to stop the assault and another child tried to remove the younger children from the room and take them to another room. It was reported that the victim sustained a bruised and swollen left leg from the mid-thigh to the ankle. She was unable to walk properly and did not go to school for a period of time after the incident.
At the time it is also alleged that the daughter told police that the Applicant usually disciplines his 3 older daughters by hitting them on the body really hard with a belt while the younger children are physically disciplined by him with his hand.
In relation to the allegation of common assault in August 2011, the victim was the Applicant’s 15 year old daughter. On this occasion it was alleged that the Applicant picked up a chair and threw it at his daughter, before punching her twice in the head, several times in the stomach and kicking her in the right knee area. He then allegedly picked her up and threw her on the floor. Apparently some of the victim’s siblings witnessed the incident and assisted her afterwards.
It was reported that she sustained a bruise covering her whole right knee resulting in her not attending school the following day and limping for a few days afterwards.
The alleged common assault on 30 October 2011 involved the Applicant’s wife as the complainant. It was alleged that he punched his wife during an argument before throwing a milk crate at her resulting in a mark on her arm and causing pain.
The police reported that he was verbally abusive towards his wife and allegedly made threats in relation to her family. Apparently 8 of the children were present during the incident. According to the police report, as a result of this incident and other related matters, the Applicant’s wife and children moved out of the family home.
The Commissioner submits that when assessing the Applicant’s conduct and the associated risks, the Tribunal can be satisfied on the balance of probabilities that the alleged incidents or incidents of a similar nature occurred.
The Commissioner points out that the Applicant admitted using a strap on his daughters as a form of discipline in his written material. He claimed that his discipline was ‘always without the cruelty (he) has been accused of’. The Commissioner says that the Applicant appears to minimise his behaviour and does not appear to appreciate the physical and emotional impact of his actions on his children.
As a result the Commissioner contends that the Applicant has failed to demonstrate any insight into the need for any physical discipline to be reasonable. He does not acknowledge any wrong doing or recognise that his discipline techniques were excessive in the circumstances.
The Commissioner also argues that the disclosures expressed by the children raise serious concerns about their emotional and psychological wellbeing.
Based on the submissions by the Applicant, the Commissioner also contends that the Applicant’s techniques for disciplining his children are entrenched in his Samoan cultural beliefs and again raise serious concerns about whether he possesses sufficient insight into the need to adopt and accept alternative methods of discipline.
The Commissioner also sets out concerns that the alleged violence has mainly been committed against the Applicant’s own family members in the presence of some if not all of his children. Material provided by the Department detail allegations of ongoing domestic violence towards his wife over a long time.
The Commissioner asserts that the Applicant’s behaviour demonstrates that he has failed to recognise his duty as a parent and has breached his parental responsibilities to promote his children’s welfare and protect them from harm. The Commissioner says that the Applicant was in a position of power, trust and authority over his children who were entirely dependent upon him to act in a manner which promotes their physical and emotional health, safety and wellbeing.
A different culture…
The hearing in this matter proceeded over 2 days on 24 July and 5 November 2013. This was brought about by a need to ensure that all relevant material was available to the Tribunal as a result of a notice to produce issued by the Tribunal on 17 July 2013 directed to the Department of Communities, Child Safety and Disability Services.
The Applicant’s wife (VU) gave evidence on both days. On the first occasion she advised the Tribunal that she was not forced to be present and had not been manipulated in any way.
VU expressed concern that her family always seemed have something against her husband. She explained that one of her brothers had threatened to kill her if she went with him.
VU seeks to take total responsibility for what has occurred. She said that she is embarrassed at putting her husband and children through this. She claims that her husband was never violent to her. She said she was an emotional wreck at the time and wanted to get her husband back. She wanted to drop the case and definitely didn’t want it go this far. She said that she made the wrong choice.
VU emphasised that there was never a good relationship between her husband and her family. She claimed her family beat him up in 1996 and things got worse after her father died. She said that her family blamed her husband for the father’s death.
In relation to the incidents involving the children, VU claimed that she used the children to get back at her husband. She said her sister coached the children and that she lied to the Department and the police. With respect to the incidents she said that they just did not happen or if they did occur they did not involve the level of violence that was alleged.
VU denied that there had been 15 years of domestic violence. She claimed that she and her husband had learnt a lot. However she insists that she has caused all the problems and she takes full responsibility for what has happened. She denied that any other factors had contributed to her decision to withdraw the charges.
On the second day of the hearing, VU again insisted that she was sorry about what she had put her husband through and how it had affected his Blue card and his work.
In his submissions, the Applicant expressed his anger with the system. He said he had no faith or trust in any government. He explained that his daughters had returned home and that he was now seeking for the case to be completed because he was over it and had lost his passion for it.
He submitted to the Tribunal that he is not the person who has been portrayed and that the truth will come out. He claims he knows he is a good dad, a good worker and he teaches his children respect. He expressed confusion about the approach taken by the Department in only removing the 2 eldest children and leaving the other children with him.
The Applicant apologised to the Commissioner for ‘being stupid’ and said he realised he should have answered the questions properly. He argued that his criminal history was way before his work at the detention centre. He says that people say things when they are angry and he doesn’t trust the police. He admits that he doesn’t understand the system.
He is very concerned about being labelled a “child abuser”. He said that initially the case was about the loss of his job and the cost involved but now he is concerned that the label will stick. He submits that the Tribunal should be asking why the Department left 7 children with him if his behaviour is that bad.
He again expresses his frustration because he knows he has a talent for helping young people. He says he disciplines his own children because he loves them. He points out that he won’t do it again because he has done the Triple P parenting program and the Salvation Army anger management course.
The Applicant says that he just wants his name cleared, he is frustrated and over it.
“A real and appreciable risk ?”
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.
I accept 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’.[6]
[6]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
In order to determine whether there is a “real and appreciable risk” to the safety of children, I have identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
The Commissioner argues that the Applicant fails to acknowledge that he has engaged in excessive discipline towards his children and fails to express any remorse for his conduct. I note that the allegations are that most of the incidents detailed occurred in the presence of most of his children.
The Commissioner points out that the Applicant in his written and oral submissions asserts that physical discipline is part of his culture and it is the discipline he was subjected to as a child. Further he claimed that the children lied in their statements to the police and the Department regarding the extent of their injuries.
The Commissioner also notes that the Applicant criticises the role of the Department and expresses his frustration because they have questioned his cultural, religious and parenting activities. Further he rationalises the extensive records maintained by the various organisations by saying that there are ‘a lot of corrupt police officers who act unprofessionally because they have power’.
In the course of the hearing the Applicant explained that since the Department had become involved he was unable to control his children like he used to. He was no longer able to use “fear” as a tool. He said he is now aware that he must use different methods of discipline. However the Commissioner points out ‘he failed to articulate to any significant degree, alternative methods he would use in the future’.
Finally the Commissioner submits that the Applicant fails to take any responsibility for the alleged incident involving his wife. The Commissioner contends that the Applicant claims that the incident was not as serious as outlined in the police brief and that the Applicant appeared to deflect responsibility onto his wife and minimise his role in the incident.
The outcome…
I have had the benefit of hearing evidence directly from the applicant, his wife and various referees. I have been left in no doubt that the Applicant is very frustrated and angry by what has occurred. He presented as an intimidating person.
During the course of the hearing the Applicant was questioned regarding an example provided by him about his approach to disciplining his children. It seems the Applicant became aware that his eldest daughter had been using Facebook and in order to find out what was going on he described the dishonest steps he undertook to get his daughter to admit that she had been lying to him. He explained that his actions were a trick so that he could find out the truth because that was important.
I find that this example is indicative of the double standards that the Applicant has demonstrated throughout this matter when dealing with his children and is definitely contrary to his expressed values of love, respect and honesty. It is consistent with his apparent and actual use of fear as a tool for controlling and disciplining his children.
I have considered the evidence provided by VU and accept the submissions by the Commissioner that little weight can be given to it. Clearly she finds herself in an intolerable situation where she lacks genuine support from her own extended family. She is attempting to make the most of an extremely difficult family situation where on any analysis domestic violence has been an ongoing part of her relationship with her husband. She must provide a home and support for her 10 children.
VU has made a choice to side with her husband after the consequences of her allegations became apparent and claim full responsibility for every thing that has occurred. I do not accept that hers is an accurate account of the situation.
I accept that the experience of being charged and the involvement of child protection authorities has led to some understanding by the Applicant that his actions were wrong.
I place great weight on the Commissioner’s submissions that I must consider the best interests of children and not any detriment that the Applicant may suffer if he were not to get a Blue card.
I have taken into account that the Applicant has been convicted of an offence that is not defined as a serious offence and did not involve children. The Court did not record a conviction and imposed a relatively minor sentence. I conclude therefore that the Court determined to take a lenient approach.
I remain very concerned that the various assaults that were allegedly committed against his own daughters and his wife. In this regard it is directly relevant to child-related employment.
I am mindful that there is a history of involvement with Child Safety, but that the Department had previously chosen not to take any formal action.
I have taken into account the positive references provided by the Applicant. As might be expected they are all very positive towards him. The level of support the Applicant received from these witnesses impressed the Tribunal.
However I am not satisfied about the Applicant’s insight into his behaviour and I consider that he continues to deny or minimize his responsibility for his alleged behaviour. The Applicant has made submissions that he is now more understanding about his role in disciplining his children, but there is scant evidence regarding him seeking professional help to manage these matters. This is of concern in the context of the Applicant seeking employment in any environment where children with challenging behaviours may act out.
I must consider the fact that a Blue card is transferable. I am not satisfied that the Applicant has demonstrated that he has addressed the concerns articulated by the Commissioner.
However, the tension in this case arises because I am dealing with an applicant who otherwise appears to be a good person but who has made some serious mistakes. He now seeks to obtain a Blue card. I must decide whether he constitutes a “real and appreciable risk” to the safety of children and young people.
Having considered all of these matters I have 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 the Applicant at this point in time.
The Applicant may benefit from seeking counselling regarding behaviour management of young people with challenging behaviours and the management of stress. I note the letter from HS, a counsellor who says that in December 2011 the Applicant was receiving counselling with respect to anger management and anxiety management. I would encourage the Applicant to reapply for a blue card in the future when he can demonstrate that he has addressed the issues that have been identified in these proceedings.
The Tribunal orders that the Commissioner’s decision be confirmed.
The Tribunal determines that it is in the Applicant’s children’s best interests and in the interests of justice that a confidentiality order be made in these proceedings so that the children are not able to 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 will be published in a de-identified format.
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