Withey v Director-General, Department of Justice and Attorney-General
[2018] QCAT 221
•13 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Withey v Director-General, Department of Justice and Attorney-General [2018] QCAT 221
PARTIES:
GILES LODER WITHEY
(applicant)v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:
CML173-17
MATTER TYPE:
Childrens matters
DELIVERED ON:
13 July 2018
HEARING DATE:
12 December 2017
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
The decision of the Director-General, Department of Justice and Attorney-General to issue a negative notice to Giles Loder Withey is confirmed.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where applicant has recent convictions – whether protective factors outweigh risk factors – whether case is exceptional
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 360Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
I McCowie
REASONS FOR DECISION
Mr Withey has applied to the Tribunal for a review of a decision made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) of the Director-General, Department of Justice and Attorney-General (‘the Director-General’) made on 29 June 2017 to issue a negative notice in respect of his application for a blue card.
The review is a rehearing on the merits. Its purpose is to produce the correct and preferable decision.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.
The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by screening persons who wish to work with children.[2] In making a decision the welfare and best interests of children are paramount.[3]
[2]WWC Act, s 5.
[3]Ibid s 6.
In respect of any application for a blue card, a positive notice must issue unless the decision-maker is satisfied that the applicant’s case is ‘an exceptional case’.[4]
[4]Ibid s 360.
Mr Withey previously held a positive notice and blue card which expired on 20 March 2015. When he reapplied, the Director-General was of the view that this was an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued to him.
What made Mr Withey’s case exceptional, in the view of the Director-General, was his conviction in the Brisbane Magistrates Court on 24 September 2014 for using a carriage service to menace, harass or cause offence between 17 March 2014 and
30 August 2014.
Mr Withey was 48 years old at the time of the hearing. He is in a long-term marriage and has three adult children, two boys and one girl.
He is a self-employed plumber and has been since 1993. He has run his business successfully enough to put his three children through private schools.
Mr Withey was the victim of an assault in 2004. His mental health deteriorated thereafter and in 2005 he was diagnosed with a major depressive disorder.
His condition has been treated with medication on a daily basis and he has attended a psychiatrist and a psychologist. He sees a General Practitioner who specialises in men’s health approximately every three months. He has sought and participated in regular counselling both alone and with his wife. He says that exercise and coaching assist in the management of his condition.
Both Mr Withey’s sons attended Anglican Church of Grammar School (‘the School’). For several years until the younger of his sons finished in 2013, Mr Withey coached students in rugby and rowing.
During that time Mr Withey worked with a female teacher who was involved in the rowing program. He says on a number of occasions the teacher exhibited ‘anti-social’ conduct towards his wife. At the same time she acted too friendly to Mr Withey whose wife believed that the teacher wanted a relationship with him.
The situation came to a head at a school function in early 2014 where words were exchanged.
In March 2014, Mr Withey says he called the teacher and explained the issues to her, but she refused to acknowledge those issues or resolve them. Mr Withey’s calls and messages to the teacher escalated.
The headmaster of the school intervened in April 2014 but that did not resolve the matter, and from Mr Withey’s perspective at least, it seems to have escalated it.
At a mediation arranged by the school in May 2014 Mr Withey agreed to cease contact with the teacher, but the calls and messages recommenced soon after.
Mr Withey says that he pursued his complaint with both the Headmaster and Chairman of the school and that copies of his communication with them was forwarded to the teacher.
The police became involved in May 2014. Mr Withey concedes that both the Headmaster and a police officer advised him to stop contacting the teacher and that his communications were causing her distress.
Contact resumed in July 2014. Mr Withey was interviewed by police on 14 August 2014 but made further contact with the teacher after that date. He was charged on
30 August 2014. Contact with the teacher ceased at this point.
On 24 September 2014 Mr Withey pleaded guilty in the Brisbane Magistrates Court to a charge of using a carriage service to menace, harass and cause offence between 17 March 2014 and 30 August 2014.
He was released upon entering into a $750.00 recognisance to be of good behaviour for 12 months. No conviction was recorded. No breach of his undertaking is alleged.
The term ‘exceptional case’ is not defined in the WWC Act. Each case must be determined on its own facts and circumstances. The accepted approach is to identify and weigh up risk and protective factors.[5]
[5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The Tribunal must have regard to the mandatory considerations contained in s 226(2) of the WWC Act, but is not limited to those matters.
I am satisfied that:
(a)Mr Withey was charged with, and entered a plea of guilty to, a charge of using a carriage service to menace, harass and cause offence. No conviction was recorded;
(b)The offence was not a serious offence for the purposes of the Act and accordingly is not a disqualifying offence;
(c)The offence was committed between 17 March 2014 and 30 August 2014;
(d)Mr Withey was released upon entering a $750.00 recognisance on his own undertaking to be of good behaviour for 12 months and no breach of that undertaking is alleged;
(e)No disqualification under s 357 of the WWC Act has been made; and
(f)No information or report pursuant to s 226(2)(b), (c) or (d) has been given to the Director-General.
In written submissions the Director-General identifies the following protective factors:
(a) The apparently successful management of Mr Withey’s depression;
(b) His statement of 4 October 2017 indicates that he has gained some insight into his offending behaviour.[6]
[6]Respondent’s outline of submissions, [27].
I have some reservations which are set out below about both of those, but I would add as a protective factor the fact that Mr Withey has previously held a blue card and engaged in coaching children at schools for a number of years without complaint.
The Director-General identifies the following risk factors:
(a) The applicant’s offending in 2014 arose out of the applicant’s employment within a school;
(b) The applicant has demonstrated a lack of insight into his offending conduct, previously blaming the school and the complainant for his actions;
(c) The applicant’s conduct occurred over a period of several months and showed a persistent disregard for the wellbeing of the complainant and for the impact these actions had on her. This suggests that the applicant may not be able to demonstrate appropriate boundaries or to act with regard to the impact that his actions have on others;
(d) The applicant persisted in his conduct despite the interventions of the school principal and the initial intervention of the police. This demonstrates that the applicant was not deterred by authority and continued to act impulsively; and
(e) The applicant reports that he was diagnosed with depression in 2004 and has “spent the last 12 years living under some duress” suggesting that he may continue to respond adversely to similar stress and conflict in the future.[7]
[7]Respondent’s outline of submissions, [28].
Mr Withey gave oral evidence at the hearing and lodged the following documents in the Tribunal in support of his application:
(a)Application dated 15 July 2017, lodged on 24 July 2017;
(b)Email to the Tribunal dated 22 November 2017;
(c)Letter of attendance from Relationships Australia;
(d)Document entitled ‘Life Story’ dated 21 August 2017; and
(e)Email to the Tribunal dated 4 October 2017 adding to his Life Story.
The materials originally provided by Mr Withey to the Director-General in support of his application were lodged in the Tribunal by the Director-General.
I do not accept that Mr Withey has demonstrated any insight into his offending behaviour or its effect on the recipient of his various communications.
Mr Withey says:[8]
Practising mindfulness, meditation and honest exploration of many issues relating to my interactions with others and with my counsellor Ms Casey Piper has allowed me to become far better equipped to deal with situations of potential conflict, and to understand the hurt that unwanted and/or hurtful interactions can have.
I have come to gain a perspective of the person who received the messages I sent and understand that there are many other avenues available to resolve issues that will not cause hurt or distress to others.
[8]Applicant’s email to the Tribunal, dated 4 October 2017.
This appears to be the basis for the Director-General’s submission that Mr Withey has gained limited insight into his offending behaviour. There is, so far as I can determine, nothing else in Mr Withey’s material or evidence that supports that submission. Other parts of his evidence and material suggest to the contrary. In the application to review he states:[9]
The headmaster at churchie [the School] refused to investigate the conduct of a teacher and acted in contradiction to school policy to conceal her conduct. I was the victim of his actions, this has not been considered in the decision.
[9]Application to review, Part C.
In his Life Story he says:[10]
My conduct in relation to my legal issues was related directly to the conduct of Ms Julianne Holland, Alan Campbell, and Daniel O’Connor, teacher, headmaster and school chairman at AGCS. Ms Julianne Holland conducted herself in an unprofessional manner in my wife’s presence at numerous school functions, most notably our youngest son’s valedictory night, also at a school rowing camp that I attended.
The school in defending, denying the existence of, the conduct of Ms Holland denied me the rights afforded all members of the AGCS community, this included refusal to act according to the published school policies, lying to both myself and my wife, creation of a false and defamatory document for the teacher’s benefit purporting to be ‘notes of conversation’. The school (Alan Campbell) also refused to contact my wife or the other adults who were witnesses to confirm the existence of the teacher’s conduct.
Alan Campbell encouraged a police officer to act unprofessionally for which the officer was required by station management to apologise to me for. The management of Anglican Church Grammar School utilised the QPS to finalise a situation, protecting a teacher from scrutiny of her conduct and allowing the school to avoid having to act in accordance with their own policies at my expense.
[10]Life Story, dated 21 August 2017.
In oral evidence, Mr Withey said he may have been ‘naïve’ in his expectation of resolution with the school and may have been better ‘cutting [his] losses and moving on’, but otherwise I do not see any acknowledgement that his behaviour was inappropriate.
While acknowledging that everyone had a right to feel safe, he felt that the teacher was in a situation which she had created. Much of his conduct, he said, was simply giving her information about his dealings with the school. They were not sent to upset her, although they obviously did. If they were intended to upset her they would, he said, ‘have been worse’.
Mr Withey says that he was ‘excommunicated from the school without due process.’ In his oral submissions in response, he stated that while he never blamed anyone else for his conduct, he did blame others for theirs.
He is dismissive of the seriousness of the criminal proceedings and he does not acknowledge his guilt. He ‘plead guilty’ as he was ‘mentally unwell to fight the charge. The Magistrate considered the offence to be worthy of no fine and no conviction…’[11]
[11]Application, Part C.
Mr Withey does regard himself as the victim here. It is unreasonable to think that the effect of his conduct with the complainant would be perceived by her as updating his dispute with the school. In any event, it should have been evident from her reaction to it and the warnings from the school and the police that the conduct was of great concern to her.
Mr Withey describes the period when he was charged and ultimately convicted as ‘an exceptionally challenging time relating to my mental health’.[12] He says ‘… I did not contest the charge as I was too unwell mentally’.[13]
[12]Applicant’s email to the Tribunal, dated 4 October 2017.
[13]Life Story, dated 21 August 2017.
In oral evidence, Mr Withey said that he was not in the same place mentally at that point of time. He was struggling with depressive issues.
I accept that Mr Withey is compliant with the medication regime prescribed by his doctors, and has for a number of years sufficiently controlled his condition to operate a significant business. He has provided a certificate of attendance from Relationships Australia to show that he has attended regular counselling sessions alone from
April 2014 until July 2016.
His oral evidence is that he has attended regular counselling at Relationships Australia with his wife since July 2016. His application has not been supported by evidence from his treating practitioners or his counsellors and that is a concern. There is nothing, other than Mr Withey’s own evidence, which supports the decline in his mental health during the period of the offending behaviour, arrest and plea of guilty, or his recovery or improvement since that time.
I also note Mr Withey’s comment that he sees coaching as a way of improving his mental health. In oral evidence he said that he saw coaching as being as important in the treatment of his mental health as his medication.
The effect of coaching on Mr Withey’s mental health is not a factor that can be taken into account in this review. It does, however, suggest a lack of insight on his part. It is the children’s best interests which are paramount, not Mr Withey’s, and those interests have not adequately been addressed in his evidence.
Conclusion
Having regard to Mr Withey’s lack of insight into his offending behaviour or the effect of his behaviour on the complainant, his acknowledgement that his mental condition contributed to that behaviour; and the lack of support for the application by his medical practitioners and counsellors, I am satisfied that this is an exceptional case. Accordingly, I confirm the decision of the Director-General to issue a negative notice to him.
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