Waldon v Commission for Children and Young People and Child Guardian

[2010] QCAT 291

CITATION: Waldon v Commission for Children and Young People and Child Guardian [2010] QCAT 291

PARTIES:	Richard John Waldon
v
Commission for Children and Young People and Child Guardian

APPLICATION NUMBER:   CSR215-09

MATTER TYPE: Children’s matters

HEARING DATE:     07 and 08 December 2009

HEARD AT:  Brisbane

DECISION OF: Louise McDonald (Presiding Member)
Johanna Bakermans (Member)

DELIVERED ON: 13 January 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1. The decision made by the Commissioner for Children and Young People and Child Guardian on 28 August 2009 that the applicant has not demonstrated that an exceptional case exists where it would not harm the best interests of children for a positive notice to be issued be SET ASIDE.

2. The Tribunal substitutes the decision that the applicant has demonstrated that an exceptional case exists in which it would not harm the best interests of children to issue a positive notice.

3. A positive notice be issued under the Act to the applicant Richard Waldon forthwith.

CATCHWORDS :  Blue card, protective factors outweigh the risk factors, Tribunal satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Richard Waldon
RESPONDENT:	Commission for Children and Young People and Child Guardian

REASONS FOR DECISION

HISTORY OF PROCEEDINGS:

1. Mr Richard Waldon, hereafter also referred to as the Applicant was the subject of an application to the Commission for Children and Young People and Child Guardian for a volunteer blue card under s100 of the Commissioner for Young People and Child Guardian Act, hereafter, the Act.  This document was received by the Commission on 19 February 2009.

1. On 28 August 2009 the Commission advised the Applicant in writing that a negative notice under s102 of the Act was to be issued on the grounds that Mr Waldon held convictions for a serious offence which precluded the issue of a positive notice unless an exceptional case existed in which it would harm the best interest of children to issue a positive notice.  They found no exceptional case.

1. The Applicant filed a Form 1 Application for review of this decision with the Children Services Tribunal on 28 September 2009, under the provisions of s121(1) (a) of the Act.  A Preliminary Conference was heard on 20 October 2009 and the matter was set down for hearing.  The hearing of this review took place in Brisbane on 7 and 8 December 2009 under the newly established Queensland Civil and Administrative Tribunal.  The Tribunal reserved its decision.

1. The Tribunal relied upon written documents contained in the Applicants file provided by both parties. Specifically, this included:

1. The Commission’s documents, included:

   ·     Application form received 19 March 2009.

   ·     Applicants Criminal History from Queensland Police Service

   ·     Court Briefs from Queensland Police Service

   ·     Sentence 3 November 2004 transcript from day 1 of trial and nolle prosequi

   ·     Indictment presented 10 October 1994

   ·     Additional Indictment 10 October 1994

   ·     Transcript of Police Interview 4 July 1994

   ·     Statements from Peter Box, Phillip Ashby, Jodie Burgess, Julie Butler, Grant Boorman, Alana Grundy, lyane O'Toole, Russell Edwards, Matthew Joseph, Juliane Creenaune, Michael Purcell, Jerry Moffatt, James Hourihan, David Goslin, Shane Owens.

   ·     Prosecutions Reasons for No evidence to Offer Decisions 1999, 2002, 2004 offences.

   ·     References from Craig Molyneux, Nicola (no surname), Lesley Fraser, Kim Stirling, Tracey Mc Murdo.

   ·     Point System, Reasons, Negative Notice.

1. Mr Waldon filed an additional statement accompanying his application. He gave oral evidence. He called Craig Molyneux and Erica Waldon as witnesses on his behalf.

APPLICABLE LAW:

1. The application commenced under the auspices of the Children’s Services Tribunal and was heard under the Queensland Civil and Administrative Tribunal Act, (the QCAT Act). The Tribunal is empowered to consider application for review made under s 121(1)(a) of the Act afresh, taking into account new material, s20 QCAT Act.

1. After reviewing the decision, the Tribunal may under s24 of the QCAT Act: Confirm or amend the decision; or set aside and substitute its own decision; or set aside the decision and return it to the original decision maker. The Tribunal is limited by s271 QCAT Act to the powers the CST would have held under s38 of the CST Act.

1. Where an Applicant has a conviction for a serious offence, under s102(6) of the Act must issue a negative notice unless under s102(7) an exceptional case exists in which it would not harm the best interests of children to issue a positive notice.

1. While exceptional case is not defined in the Act, a number of discretionary considerations are to be considered under s 102A of the Act.  The Tribunal of course is bound primarily by the paramount principle that all decisions made are on grounds where the welfare and best interests of children prevail. 

1. S102A requires consideration of the following factors in determining whether an exceptional case exists:

If the Commissioner is aware that a person has been convicted of an offence, she must have regard to the following –

(a) in relation to the Commission, or alleged Commission, of an offence by the person –

whether it is a conviction or a charge; and
whether the offence is a serious offence, and if it is, whether it is an excluding offence; and
when the offence was committed or is alleged to have been committed; and
the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
in the case of a conviction:- the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under sec. 126 C, the court’s reasons for its decision;

(b) anything else relating to the Commission, or alleged Commission, of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person.

1. Case law has given further assistance in interpreting whether an exceptional case exists.  It is a question of fact and degree[1] and is to be determined on the facts of the individual case.  Consideration of the non- conviction charges has been held to be relevant to evaluating the risk of future harm. [2]  A mere change in circumstances will not represent an exceptional circumstance where those changes are from an abnormal to normal lifestyle.[3]

   In Commissioner for Young People v Maher and Anor[4] endorsed an approach which balanced protective and risk factors to determine whether an exceptional case existed.

   [1] Re Imperial Chemicals Industries Ltd Patent Extension Petitions [1983] 1 VR1

   [2] Chief Executive of Department of Child Protection 2008 WASCA171.

   [3] Kent v Wilson [2000] VSC 98.

   [4] [2004] QCA 492

2. The Tribunal must be satisfied that an exceptional case exists on the civil standard of proof, being the balance of probabilities.  Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, applied Commissioner for Children and Young People and Child Guardian v Maher& Anor [2004] QCA 492.

EVIDENCE:

1. The Commission presented evidence that Mr Waldon had 15 convictions which included violent behaviour and the use of weapons.  He had charges for throwing a Molotov cocktail into someone’s home, extortion and assaults occasioning bodily harm.  Most of these occurred between 1994 and 1996 when the Applicant was aged between 18 and 20, however, there are three entries to his criminal record for assault in his mid to late twenties, which were never prosecuted, on the grounds of no evidence to offer.  Mr Waldon has a conviction for serious offence on his criminal record: Stealing with actual violence, when he stole $9 from a Timezone customer armed with a pair of scissors at age 18.

1. The Commission argued that this history represented a volatile and reactive personality which posed the risk of harm to children.

1. Mr Waldon, now 33 years, argued that he had reformed his life and was no longer prone to managing his anger with violence.  He referred to his difficult childhood to contextualise the criminal history, stating that he had been born of a single mother who abandoned his care, and he never knew his father.  His early years had “bounced between members of the family where he experienced physical verbal and emotional abuse”.  At sixteen he had an explosive argument with his “adopted parents” and ran away from home to live on the streets.  Years of petty crime and aggressive behaviour eventuated in multiple periods in jail.  Mr Waldon reflected upon the person he was in his early adulthood and described himself as “a little arsewipe… public enemy number one.”  He acknowledged his behaviour at the time was destructive and antisocial. For much of his time in jail, he remained an angry person, describing jail as making him even angrier due to his experiences within.

1. He described a life changing experience in jail as a result of moving to the protection wing, where he was given an opportunity to reassess the direction his life was heading at that time.  Following this determination, he reduced his security classification in jail from maximum security 182 Points to a four point low security inmate.  He sourced a significant contributing factor to undertaking the MAYGIC Course on two separate occasions.  This was a continuous two week outdoor intensive program which he described as assisting him to recognise and manage his anger.  He described the program as teaching him to analyse what is being said in a conflict situation ; respond with alternatives to aggression, remaining calm while removing himself from the situation.  He undertook “every course he could in prison including anger management”.  He stated that this was a two day course of 2 hours per day and had limited benefit in assisting him as the context in prison made opening up difficult.  Nevertheless he argued that the benefits he gained from the MAYGIC course were transformational and he continues to utilise these principles on a daily basis.

1. On his release, he sought to educate himself and to “work on the baggage in (his) head”. To these ends he undertook training in small business management/cooking and sought psychological counselling.

1. Through counselling he learned that he could be identified as having an “accumulated stress disorder” so labelled by a psychologist seen through the Sarina Russo Centre for a period of 16 months.  Through this he saw the experiences of his early childhood affecting him such that he “spilled over with anger”.  He stated that his counselling in this regard has assisted him with control and to recognise the triggers to his anger.  Although he is no longer eligible for the counselling he seeks to access his wife’s employee counselling scheme.  He indicated commitment to ongoing therapy to manage self destructive patterns that have emerged from time to time.  These patterns ultimately result in social withdrawal, which he uses as a means of coping.

1. Since meeting his wife Erica some nine years ago, he has become an active and involved father, and a productive member of the school and football community.  He has been an active volunteer for five years.  He is committed to assisting teenage boys keep on the right track, by offering support through football and encouraging the benefits of the structure of team sport.  He has actively recruited wayward youth into the football club.  He sees himself as a stable and contributing member of society, and is no longer driven by anger.

1. He denied that assaults that he was charged for, (but which were never prosecuted), cast doubt on the effectiveness that these rehabilitative measures have had upon his behaviour.

1. The 2002 incident at age 26, which allegedly involved an axe handle/or bat was strenuously denied by the Applicant.  He explained that an incident had occurred where his wife and children had been threatened with rape by a group of associates from the nightclub they frequented.  He denied making any admissions to the police, and was unable to give a satisfactory explanation for the statements made by the taxi driver wherein she witnessed him holding a bat, and heard him refer to it as an “attitude adjuster”.  He said that he had not thrown a punch in anger since that occasion.  He stated that he had swung and missed.  He denied that calling the police would be an effective way to manage such a conflict.

1. He denied biting the security guard in the 2004 incident aged 28, and argued that three guards had approached him and ejected him from the railway station.

1. In relation to assaults in 1999, a glassing he argued that he had been physically assaulted by the complainant and was acting defensively.

1. He argued that he has demonstrated an ability to control his anger over lengthy periods of aggressive taunting by a disgruntled family of club members.  Over a period of time Mr Waldon describes being verbally abused during matches, he and his family being the victims of road rage from this family, being followed to their home and threatened.  He described remaining calm, and choosing to manage the conflict through the formal club processes. 

1. Mr Waldon stated that he is deterred from re-offending and aggressive behaviour because he does not want to jeopardise his freedom from jail, and he would not want to abandon his wife and three children.

1. He gave evidence that he was an active participant in the school and football in his local community, and was a family centred person.

1. He stated that there have been no incidents of aggression in the last 5 years and no contact with the police in that time.  He has had no convictions for 10 years.

1. Mr Craig Molyneux, Secretary of the Banyo Rugby League club gave evidence that he had known the Applicant for five years through his involvement in the club and had never observed any violence or aggression from him.

1. He had known Mr Waldon to have been aggressively taunted by a particular family of club members, and had observed him to remain calm, and remove himself from the situations.  He never observed, or was aware of any incidents of aggression.

1. He had never observed Mr Waldon to have problematic behaviour related to alcohol, despite regular attendances at social functions where alcohol was served.

1. He gave evidence that the Applicant was widely respected within the club and generously gave time to the club in multiple activities, assisting as a volunteer as needed.

1. Mrs Erica Waldon, wife of the Applicant gave evidence to the Tribunal.  Mrs Waldon denied observing any violence in her husband’s behaviour in the course of their nine year relationship.

1. She described the incident which occurred in Ipswich in 2004.  She stated that Mr Waldon’s retaliation had been in response to threats against her.

1. She stated that both she and her husband were social drinkers, and alcohol had not been problematic for Mr Waldon.

1. The Tribunal accepts that she and the Applicant are in a stable and solid relationship, where they actively on a daily basis provide emotional support and debriefing.  Mrs Waldon is a qualified and experienced welfare worker in the field of child protection.  They have been in a relationship for nine years, and have two daughters of their own relationship, and an older boy who Mr Waldon refers to as his son, although not biologically his.

1. Mrs Waldon described the lengthy period of harassment and threats she and Mr Waldon experienced by particular family of club members.  She described an incident which extended from threatening behaviour on the sidelines of the football field to threats which continued over several matches, and had on one incident extended from the field along the roadside to the couple’s home.

1. She observed the family yelling abusive comments from the car, acting threateningly toward Mr and Mrs Waldon, including driving closely to their car, driving onto the pavement and running over their letterbox.  Throughout the series of prolonged incidents she observed that Mr Waldon remained calm and did not resort to violence or aggression.  He managed the conflict through the formal committee processes.

1. She confirmed that Mr Waldon had undergone psychological counselling for several months in the recent past, encouraged by her; and was accessing psychological counselling through her Employee Assistance Scheme which was available to spouses.  She gave evidence that she believes that ongoing sessions are available to Mr Waldon.

DISCUSSION OF THE EVIDENCE:

1. The Commission submitted that despite significant protective factors, there remained two major risk factors, namely a lack of insight of the effect of violence upon children, and demonstrations of anger despite engagement with rehabilitation programs.  The Commission argued that Mr Waldon’s anger had not been extensively tested and that there was insufficient basis to claim with certainty that the anger issues were no longer alive.  The protective factors the Commission submitted included a strong and supportive relationship with his wife and children; a broad circle of acquaintances, an identification of need for and engagement with professional help; a strong love for football and ongoing social involvement and its associated rewards.

2. Mr Waldon submitted that he has relied upon himself to drive his rehabilitation.  He indicated that through having children he has set a standard for himself, and is driven to comply with this.  He argued that he has had no contact with the police for five years and no conviction for ten years  and that this is in contrast to his youth where he was in trouble with the police every month.  He maintained his innocence in relation to charges in 2002 and 2004.  He argued that his non violent response to the prolonged provocation and harassment he experienced from the disgruntled club members was testimony to his changed approach to managing conflict.  He argued that he maintained the presence of mind to deal with it non-violently over an extended period.  He attributed this to the MAGYIC program giving him skills to manage, and counselling assisting him to process his anger.  Mr Waldon demonstrated insight into the triggers to his anger in the past.

1. The Tribunal is required to turn its mind to the factors stated at s102A of the Act in determining whether an exceptional case exists.  The Tribunal notes that the Applicant has 15 convictions and numerous charges relating to violent offences.  One of these convictions was for a serious offence committed at age 18 using scissors as a weapon.  The applicant’s criminal history includes the use of weapons, notably a Molotov cocktail and scissors.  Taken together his criminal history represents an image of a violent offender with little respect for people or authority.  His sentences for the convictions impressed upon him the concerning nature of his offences.  This is an alarming profile for anyone who may work with children, potentially posing the risk of harm.  However, the Applicant is in a very different place in his life as a result of active rehabilitation, and strong relationship support, family and community involvement.  The Tribunal has formed the view that Mr Waldon has gained much maturity since his earlier crimes, and has resolved some of the underlying issues which drew him to partake in violent crimes.

1. It is noted that the substantial balance of these were carried when the Applicant was aged between 18 and 20 following a particularly troubled youth, and at a time when he was disconnected from society and homeless.  Since that time the applicant has undergone extensive self directed rehabilitation in relation to underlying anger which triggered these offences. 

1. The Tribunal concurs with the Commission’s list of protective factors outlined at paragraph 40.

1. The Tribunal does not accept that Mr Waldon has not had the opportunity to demonstrate conquering his anger management issues.  Mr Waldon has undertaken rehabilitation though the MAYGIC Program and extensive therapy.  The Tribunal considers that the evidence, on balance suggests that although Mr Waldon has had an extremely violent and aggressive past, he has engaged ongoing treatment to manage his emotions and has demonstrated a capacity to manage his anger, in particular in relation to ongoing taunts and acts of aggression towards him and his family experienced at the football club.  This occurred over an extended period and with repeated incidents of provocation.  Further Craig Molyneux, the Banyo Football Club Secretary, has observed Mr Waldon over the past five years and has never been aware of any incidents of aggression.  The Tribunal considers this suggests that Mr Waldon has matured and developed skills in managing conflict without aggression.  Since the last incident of alleged aggression in 2004, Mr Waldon has become a father, engaged in a role in the community that affords him social respect, and fundamentally self esteem, which he may have lacked previously.  Fear for damaging his reputation, damaging his children, and losing his freedom acts as a significant deterrent to Mr Waldon and it is the Tribunal’s view that he is disinclined toward violence.

1. The Tribunal agrees that Mr Waldon’s insight into the harm of violence of observing aggression did show some impairment, however, he was able to identify the need to protect his own children from witnessing his aggression, and the Tribunal was satisfied that this is not a significant concern.

1. He is well integrated with his community.  He has limited associations with people from his criminal past, now having extensive community connections through the football club and school.

1. He is a passionate volunteer, gaining self esteem from his commitment and offerings of time and efforts to the rugby club.  He enjoys watching the children develop, and offers his time and energy to support them outside of club activities.  He appears to feel a passionate drive to assist young people “keep on the straight and narrow”.  Although he does not expressly draw upon his specific past; he broadly refers to it in when offering support to teenage boys.  The Tribunal views his engagement with the community through the club, the self esteem he gains from his community input and the mentor like role he assumes with the teenage club members is a significant protective factor.

1. The Tribunal found Mr Waldon highly articulate and insightful in relation to his own self- learning in the years since 1999 when Mr Waldon made a positive choice to change his life.  He is in a supportive relationship where he is able to engage verbally to discuss his problems, and participates in a daily verbal debrief with his wife as part of their regular routine. Their relationship is a significant protective factor.

2. Mr Waldon’s motivation and dedication to the football community, his own children and the school community serves as a significant protective factor.  He is a productive citizen and volunteer, and he gains respect and admiration from his community in return for his involvement.  He demonstrates genuine commitment to the young boys in the club.

1. It is the Tribunal’s view that the applicant’s change in circumstance goes beyond the shift from an abnormal to normal lifestyle.  He has taken specific action to change his previously aggressive behaviour, seeking to address the roots of his problems.  He has taken action to ensure that he has formal and informal assistance to re-enforce the therapeutic gains.  He has been tested and has met the challenge by refraining from aggression.  The Tribunal distinguishes these facts from those dealt with in Kent and Wilson because there has been significant personal growth at the core of these changes.

1. It is further the Tribunal’s view that the protective factors outweigh the risk factors. The Tribunal is therefore satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. That being the case, the Tribunal requires that the decision to issue a negative notice be set aside, and be substituted with a decision that the Applicant has demonstrated an exceptional case.