Wailu v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 323

CITATION:

Wailu v Commissioner for Children and Young People and Child Guardian [2014] QCAT 323

PARTIES:	Sabu Fraser Wailu (Applicant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML243-13

MATTER TYPE:

Childrens matters

HEARING DATE:

1 April 2014

HEARD AT:

Brisbane (by teleconference)

DECISION OF:

Member Quinlivan

DELIVERED ON:

3 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:	That the decision of the Commissioner for Children and Young People and Child Guardian made on 28 October 2013 to issue Sabu Fraser Wailu with a negative notice is confirmed.
CATCHWORDS:	Blue card – relevance of previous decision of Commissioner – insight of applicant – cultural considerations

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Sabu Fraser Wailu represented by Paul Broughton of the Aboriginal & Torres Strait Islander Legal Service (Qld)

RESPONDENT:

Commissioner for Children and Young People and Child Guardian Respondent represented by Craig Capper

REASONS FOR DECISION

Sabu Wailu is a 43-year-old Torres Strait Islander. He lives on Mer (Murray) Island in the Torres Strait. He works for the Torres Strait Island Regional Authority as a Ranger and is one of the traditional owners of the island.
Mr Wailu is a single man and the father of four children. His eldest daughter lives in Ipswich with her mother and his three sons leave in New South Wales with their mother.
He was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) on 10 December 2009. He was issued with a further blue card and positive notice on 18 July 2012.
On 20 June 2013, the Commissioner was notified by the Queensland Police Service that the applicant's police information had changed. As a result his eligibility to hold a blue card was reassessed under section 237(1)(b) of the CCYPCG Act.
On 28 October 2013 the Commissioner advised the applicant that his positive notice and blue card had been cancelled and he was issued with a negative notice.
On 3 December 2013 Mr Wailu made an application to the Tribunal for a review of that decision. He stated that he had not received a letter from the Commissioner regarding making submissions about his eligibility for a blue card and that with proper consideration of his submissions and circumstances a decision not to cancel his positive notice could have been made.
He also explained that as a traditional owner and in his role as a senior ranger he teaches young people about the land and the sea and their culture and traditions. He said he needs a blue card to continue that work.

Background

As part of the employment screening process a check is undertaken with the Queensland Police Service and interstate police services. Details of the applicant’s criminal history are set out in the Statement of Reasons provided by the Commissioner.
The Commissioner has identified a number of offences involving violence where the applicant has been convicted of common assault. Those offences date from December 2002 until a charge of assault occasioning bodily harm on 16 June 2013.
In relation to an incident on 7 December 2002 the applicant is alleged to have assaulted his partner in the presence of their five-month-old child. On the same date the applicant went to the house of his partner's parents and behaved in a threatening manner. It was alleged that at the time, his partner’s parents were inside the house with some children and they were all in fear of the applicant.
On 30 March 2003 the applicant was convicted of the breach of a domestic violence protection order. The protection order was issued on 11 December 2002. It was alleged that the applicant had slapped and punched his partner to the face a number of times while she was holding her nine-month-old child. At the time, she was also seven months pregnant with their child.
On 13 September 2007 the applicant was convicted of another breach of a domestic violence protection order. On this occasion it was alleged that the applicant had accused his partner of cheating on him and that he had challenged her to come to the backyard so they could have a ‘bust up’. When the police arrived, his partner was outside because she was too frightened to be inside the residence with the applicant and their two children.
A further breach of a domestic violence order by the applicant occurred on 7 December 2007. When the police arrived at his partner’s residence she was visibly upset and was accompanied by two children. The applicant had returned to their home, intoxicated after attending a Christmas party and became verbally aggressive and threatening. It was alleged that his behaviour resulted in his partner fleeing the house with their children in fear that she would be assaulted. The police also alleged that when they arrived, the applicant was verbally aggressive towards them and made several threats of violence.
The most recent allegation of assault occasioning bodily harm occurred on 16 June 2013. At the time the applicant was 42 years old and the complainant was his 50-year-old sister. It was alleged that the applicant punched his sister in the mouth causing her nose and mouth to bleed.
In particular, the police alleged that the applicant, his sister and other family members were present at a drinking party at a dwelling on Mer Island. The applicant and his sister became involved in a heated discussion regarding land rights. According to the Police Report his sister says that the applicant stood in front of her and screamed into her face. She says that while he was screaming at her, spit was landing on her face and the applicant was extremely angry. She says that she used her open palms to push him away from her so that she could create distance between them as she feared for her safety.
His sister claimed that the applicant was affected by alcohol and cannabis and lost his footing as a result of her push. The applicant fell to the ground and then jumped up immediately and hit his sister on the left side of her face with his right fist. The injuries sustained by his sister included swelling to her nose and sinus area, swelling to her upper lip, grazed upper lip, pain on her forehead and a loose tooth with sore gums. The applicant was charged with assault causing bodily harm.
At the hearing of this application, the Tribunal was provided with a copy of a document dated 15 January 2014 from the Justice Group on Mer Island that says that the sister had requested that all charges made against the applicant be dropped. Apologies were made and accepted. The Justice Group were present at a mediation, which came to a conclusion and was resolved in a family manner.

The Applicant’s case

The applicant provided written submissions to the Tribunal on 30 January 2014 where he asserted that in 2009 he was found not to be an exceptional case and accordingly he had been issued with a positive notice. He says that the Commissioner has now issued him with a negative notice on the basis of the incident in June 2013, where he is alleged to have punched his older sister in the face.
He points out that the Commissioner says that this most recent incident is an indication that the applicant cannot handle his anger. The applicant argues that this incident is unrelated to the previous incidents the Commissioner considered in 2009 and it is not related to his ability to handle his anger and should not be used as such to classify him as an exceptional case.
By way of clarification, the applicant says that the facts presented by police are one side of the story only and not wholly accurate. He says that he was struck first by his sister and punched in his right eye and knocked to the ground. He claimed that he acted in self-defence by jumping up and hitting his sister. He says that it was an instantaneous reaction to diffuse a situation and to stop his sister from carrying on further. He claims that he feared that his safety was threatened by his sister and that he would be in danger of being struck further if he did not defend himself.
The applicant asserts that the law does not expect a person to remain unnaturally passive when their safety is threatened by someone else. The single punch he threw in self-defence was reasonably necessary to make effectual (sic) defence against the assault on him and was in fact successful in stopping his sister attacking him further.
The applicant denies provoking his sister in any way. He points out that he has no charges of assault on his record apart from those that relate to his second partner. He contends that this was a stressful relationship and that in all the circumstances it is better for both of them that it has ended.
He argues that the most recent incident is isolated and unrelated to his previous behaviour and not a reflection or a continuation of the problems he had with his second partner.
In relation to the incident with his sister he also alleges that his sister was heavily intoxicated but he was slightly less intoxicated. He says that he was not under the influence of cannabis but merely alcohol. He claims that that he only has a few cans at the club after work and does not often go to parties on the island. He says that he has not used cannabis since he was a young man.
He points out that it is significant that he and his sister have gotten over the incident – she has apologized to him for punching him to the ground and saying hurtful things about his late parents. He has apologized to her for hitting her in the face. They have mended their relationship of their own accord and have since gone through cultural mediation with Elders on Mer Island.
The applicant also points out that there were no children present when he and his sister had their fight and that the actions they have taken since are an example to the children on the island. He says that by going through cultural mediation they have shown ‘to each other, the community elders and the community generally’ that they respect each other, respect the law and respect the community and traditional culture.
The applicant acknowledges that children have a right to be protected from harm. He emphasises that the incident with his sister was an isolated and unfortunate incident. He says it is not an indication that he would do anything to harm children and the actions of his sister and himself since the incident in moving on from it in a mature and responsible fashion and attending cultural mediation preserve his ability to be a role model for children in the community.
The applicant also points out that Torres Strait Islander children have unique rights under Australian and Queensland laws and that it is in the best interests of indigenous children to have a connection to their traditional culture - something he is committed to in his work as a Ranger, his work with the PBC and his life on the island generally.
In his final submissions dated 15 April 2014, the representative for the applicant points out that two risk factors for the applicant were flagged at the hearing namely:
a) a propensity to resort to violent behaviour due to anger/stress management issues and a lack of coping strategies; and
b) alcohol consumption coinciding with or leading to him behaving violently.
He submits that the trigger for the applicant's behaviour involving his sister was separate and unrelated to the first risk factor and that the passage of time since his last offending behaviour in 2007 is evidence that he has indeed addressed the trigger of stress management in his life. In granting the applicant a blue card in 2009, his representative contends that the Commissioner found that the passage of time from his behaviour in 2007, his management of stress in his life and his community involvement were factors that adequately addressed any risk posed to the best interests of Queensland children. These are all factors that have continued in his life and are not diminished by the incident with his sister last year.
The representative also points out that at the hearing, some time was spent exploring Mer Island culture and its relationship to the applicant’s alleged offending behaviour. He submits that the exploration was fruitless and yielded evidence that would be irrelevant for the Tribunal to consider. He submits that culture is not a risk factor in this matter and the applicant has not raised it in mitigation.
He says that the applicant has not tried to diminish the seriousness of his behaviour. He has expressed regret to his sister and the Tribunal for his actions. He submits that his regret however does not detract from the necessary nature of his response to being struck. He says that a witness Mr Akee gave reasoned and considered evidence that this was simply a matter where ‘if someone is struck - naturally there will be a response’.
The Tribunal is mindful that in his earlier submissions the applicant concluded by saying:
Mer Islanders come from a warrior culture that values strength. In summary, I submit that the incident with my sister which led to my negative notice was an isolated one that was not provoked by me and that the actions of my sister and I since the fight show a strength of character that is an example to children that it is in the best interests of children for me to hold blue card because I am committed to continuing my work as a Ranger and role model for young people and fighting to ensure through my work with the PBC that our future generations rights to their land are secure.
The applicant's representative explained that the only reference to culture in the applicant’s evidence was a reference to the strength of self-reliance and self-determination that Murray Islanders have displayed in their land struggles over the years and how that strength translated into his response and his sister's response to the incident. Despite having fought they settled their differences in a mature manner and with respect to that culture by participating in cultural mediation - an example to others and grounds for them both being considered role models to young people in their community.
The issue of alcohol was also raised as an additional risk factor for the applicant. His representative acknowledges that the applicant's criminal history reveals that intoxication was a factor in the incident with his sister and in the breaches of domestic violence orders recorded in September and December 2007. However for his other offences there is no mention of intoxication. The representative points out that the applicant gave evidence that he drinks alcohol about once per week or fortnight when he gets paid and he limits his consumption to one six-pack of beer. Further the applicant gave evidence that he had abstained from alcohol for the previous three weeks and was giving up alcohol consumption and focusing on attending church regularly.
The representative argued that the applicant does not ordinarily attend parties and this coupled with his ordinarily low level of alcohol consumption and recent abstinence can be taken as a strong indicator that the part intoxication played in the incident with his sister need not be characterized as an ongoing risk factor. Further all previous convictions or incidents considered by the Commissioner or Tribunal related to the applicant's relationship with his partner and were domestic in nature.

The Commissioner’s perspective.

In his Reasons dated 28 October 2013, the Commissioner acknowledges the factors identified in his previous decision to issue a blue card to the applicant in 2009, which mitigated the risks posed by the applicant’s pattern of previous violent offending behaviour. These included:
·       the applicant submitting that he was no longer stressed and that he and his de facto partner were now leading a happy lifestyle;
·       the applicant submitting that he was more involved in the community and school events which suggested he had made positive changes in his life;
·       the applicant had not committed further offences of a violent nature for a period of almost 2 years; and
·       a reference from a Ms Cathcart indicating that the applicant had changed his behaviour towards his family and had demonstrated the ability to care for his young children while their mother was away studying.
However the Commissioner argues that the applicant's alleged offending behaviour on 16 June 2013 involving his sister suggests that he does not have the ability to manage his anger and exercise proper restraint when faced with personal conflict. The Commissioner submits that the applicant has not adequately addressed the triggers of his offending behaviour.
The Commissioner also points out that the applicant previously claimed that his return to Mer Island had greatly aided in improving his stress levels, but that the alleged offence in June 2013 occurred on Mer Island. The Commissioner indicates that this is adverse to his assessment of the applicant's ability to present as a positive role model and to safeguard the best interests of children and young people in his care.

The outcome?

The task for the Tribunal in this matter is set out in section 221(2) of the CCYPCG Act. If the Tribunal, standing in the shoes of the Commissioner, is satisfied that it is an exceptional case in which it would not be in the best interests of children for it to issue a positive notice, the Tribunal must issue a negative notice to the person.
The approach to be taken by the Tribunal in considering whether this is an “exceptional” case is set out in the decision of Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at 291. The Tribunal ‘… is to consider its application in each case unhampered by any special meaning or interpretation’.
The purpose of this review is to produce the correct and preferable decision as set out in section 20 of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal must hear and decide the review by way of fresh hearing on the merits.
None of the offences for which the applicant was convicted are considered to be serious offences under the CCYPCG Act. As a result the Commissioner must issue a positive notice to a person in circumstances where a person has a conviction, other than for a disqualifying offence or a serious offence.
However, if the Commissioner is satisfied it is an “exceptional” case, then the Commissioner must issue a negative notice to the person. It is this issue that I must address.
The standard of proof upon which the Tribunal must be satisfied is the balance of probabilities. However, there is no onus of proof on either the applicant or the respondent[1]. However the Tribunal is guided by the decision of Philippides J in the decision of Maher[2] which requires that the Tribunal must seek to balance the risk factors against the protective factors.
[1]McDonald v Director General of Social Security [1984] FCA 57.
[2]Commissioner for Children and People and Child Guardian v Maher and Anor [2004] QCA 492.
There are some protective factors regarding the applicant identified in the evidence. He remains living in the community on Mer Island and is a traditional owner of the Island. He has a role as a Land and Sea Ranger with the Torres Strait Island Regional Authority. He has demonstrated some remorse for his involvement in the recent incident with his sister by taking part in cultural mediation and apparently resolving his issues with his sister.
The references that the applicant has provided to the Tribunal indicate that he is a highly regarded member of the community on Mer Island. He wants to be a role model for the young people on the Island and preserve the culture of his people.
However there are also some potential risk factors. I note that the Commissioner says that he cannot accept that the applicant has:
·       adequately addressed the triggers to his violent behaviour;
·       successfully rehabilitated and displayed sufficient insight into his behaviour to prevent a re-occurrence of similar conduct; and
·       acknowledged and understood the seriousness of his alleged offending behaviour and its relevance to the continuation of a blue card to allow him to care for the safety and well-being of children.

The applicant has a record offending extending from at least February 1989 through to June 2013. During the period from 2002 – 2007 there are a number of convictions where the offences involved violence in the presence of children.
The last occasion on which the applicant was involved in a violent incident was in June 2013 with his sister. The versions of the event vary considerably but it is clear that that the event was alcohol fuelled and resulted in injuries to his sister. Section 226(2) of the CCYPCG Act requires that I have regard to whether the alleged offence resulted in a conviction or a charge.
I do not accept the submissions of the applicant that he has not tried to diminish the seriousness of his behaviour. In his final submissions he continues to assert his innocence by pointing out that if the matter had proceeded he would have claimed that he acted in self-defence. He also continues to refer to his previous convictions for assault as domestic matters.
What is clear to the Tribunal is that the applicant seeks to attribute blame for the incident in June 2013 to his sister. He seeks to limit his own responsibility for the incident. There is no evidence to indicate how he would act if placed in a similar situation in the future. His history of violent responses suggests that he does not react well to such situations.
I am not satisfied that the applicant has demonstrated any real insight into his actions. He has sought to distinguish and minimise his most recent actions from that of the numerous examples of inappropriate behaviour that form his criminal history.
He has made no effort in his application to address the impact that his previous behaviour may have had on children but has continually asserted that the fact that he has participated in cultural mediation demonstrates that he is a good role model for children rather than addressing the core issues around his violent behaviour.
The applicant has not undertaken any professional counselling regarding his actions and has not provided the Tribunal with any independent professional evidence regarding any risk he may pose to the welfare of children in his care.
The Tribunal is conscious that the applicant has previously identified his behaviour as being the result of stressful situations, which were meant to be addressed, in part, by him returning to Mer Island. However as the Commissioner rightly points out, his most recent alleged offending occurred on Mer Island. This is of concern to the Commissioner because it demonstrates that even in a relatively safe environment, the applicant is still prepared to engage in violent behaviour should the occasion arise.
I accept that the applicant regrets the most recent incident but there is no evidence of any attempts being made by him to address the behaviour. I also find it is concerning that the applicant continues to drink alcohol although he claims that it is to a lesser degree.
I place great weight on the Commissioner's submissions that the Tribunal must consider the best interests of children and not any detriment or benefit to the applicant that may arise if he were not to get a blue card.
I have taken into account that the applicant has been convicted of offences that are not defined as serious offences and that the most recent allegation has been determined by way of cultural mediation. I am concerned that the incident involved a close family member. In my view all of these matters are directly relevant to child related employment.
I am not satisfied that the applicant has any insight into his behaviour and I consider that he continues to rationalise and justify his role.
I must address the fact that a blue card is transferable. I accept the Commissioner’s submissions that the effect of continuing the applicant’s blue card would be that he is able to go out into the community with the authority of the Commissioner and work in any child-related employment or conduct any child-related business as regulated by the CCYPCG Act.
I accept that the Commissioner does not have the power to issue a conditional blue card. It is fully transferable across all areas of employment and businesses regulated by the Act. Consequently it would give the applicant unrestricted access to children in any category of regulated employment or business. I am not satisfied that the applicant has demonstrated that he has addressed the concerns articulated by the Commissioner.
However, there is a tension in this case because there are aspects of the applicant's case, which suggest that he is a good person who has made some serious mistakes but is endeavouring to do something about them. He may benefit from obtaining counselling regarding his behaviour with respect to the management of stress and the use of alcohol. I 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.
I must decide whether the applicant’s case is an exceptional one. Having reviewed 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
Consequently I order that the Commissioner’s decision be confirmed.