WJB v Commissioner for Children and Young People and Child Guardian
[2013] QCAT 598
•5 November 2013
| CITATION: | WJB v Commissioner for Children and Young People and Child Guardian [2013] QCAT 598 |
| PARTIES: | Mr WJB (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML119-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 23 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Presiding Member Browne Member Rogers |
| DELIVERED ON: | 5 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 22 May 2013 to issue a negative notice to Mr WJB is confirmed. 2. The Tribunal prohibits the publication of the names of the Applicant, the Applicant’s wife and children referred to in these proceedings. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where offences of physical and verbal aggression NON-PUBLICATION ORDER – where contrary to the public interest to identify names of the applicant, the applicant’s wife and children Commission for Children and Young People and Child Guardian Act 2000 ss 226, 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr WJB, self represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Louisa Keown, Solicitor (in-house) |
REASONS FOR DECISION
Mr WJB is a 40 year old man who requires a blue card to enable him to work as a family day carer or educator in a family day care centre in Queensland.
Mr WJB has been living in Australia since 2009. He was, prior to moving to Australia, a refugee living in Sudan where he met and married his wife, Ms TB, in a refugee camp. Mr WJB moved to Perth, Australia with his wife and first born child in 2009. His wife and young daughter moved to Queensland in June 2009 and Mr WJB soon followed.
On 9 August 2011, Mr WJB was issued with a volunteer blue card by the Commissioner to enable him to work in a family day care centre.
On 28 December 2012 the Commissioner was notified of a change to Mr WJB’s police information concerning a breach of domestic violence order and offending behaviour on 11 July 2012. The Commissioner did not, however, issue a negative notice and Mr WJB continued to hold a blue card.
On 23 January 2013 the Commissioner was notified of a further change to Mr WJB’s police information concerning offending behaviour on 27 December 2012 and 22 January 2013.
During the period of reassessment by the Commissioner of Mr WJB’s eligibility to hold a blue card, Mr WJB’s employment status changed from volunteer to paid employee and an application was made by Mr WJB to the Commission on 8 August 2013.
Mr WJB was given an opportunity to respond to the material obtained by the Commissioner from the Queensland Police Service (QPS) in relation to the offending behaviour. The Commissioner, after reassessing Mr WJB’s eligibility to hold a blue card, determined on 25 May 2013 to cancel Mr WJB’s positive notice and to issue a negative notice accordingly.
The offending behaviour that triggered the issuing of a negative notice by the Commissioner was not a “serious offence” so it was necessary for the Commissioner to determine whether this was an exceptional case in that it would not be in the best interests of children to issue a positive notice.[1]
[1] Commissioner for Children and Young People and Child Guardian Act 2000 s 221.
Mr WJB’s offending behaviour concerns conduct over approximately 6 months in relation to breaches of domestic violence orders. The Commissioner concedes that for the purposes of the decision made on 25 May 2013 to issue a negative notice, the behaviour of concern relates to the offending behaviour on 27 December 2012 and 22 January 2013.
The offences are serious and involve both physical and verbal threats by Mr WJB. The incident on 27 December 2012 involved physical acts of violence by Mr WJB in the presence of his two young children. Mr WJB’s wife was observed by police, after the incident, to have scratches and swelling around her face and her injuries required medical treatment. Mr WJB pleaded guilty to the charge of contravention of domestic violence order. The particulars of the offence provide that Mr WJB grabbed his wife’s face and pressed his fingers into her skin. Mr WJB’s wife “broke free” and ran away from Mr WJB to her vehicle. Mr WJB then came out of the house and picked up a children’s toy bike and threw it at his wife. The bike hit the windscreen of Mr WJB’s wife’s vehicle causing damage.[2]
[2] Queensland Police Service court brief, section 21 material, p 12.
The incident on 22 January 2013 involved verbal threats by Mr WJB towards his wife while his two children were seated inside his wife’s car at the time of the incident. Mr WJB pleaded guilty to the charge of contravention of domestic violence order. The particulars of the offending behaviour are that Mr WJB’s wife was reversing her vehicle out of her driveway when Mr WJB drove his vehicle into the rear of his wife’s vehicle. Mr WJB told his wife that he knew he had breached the conditions imposed by the domestic violence order and stated: ‘I will kill you before I go criminal or go to jail’ and further stated ‘I am not scared of police’. There was damage to Mr WJB’s wife’s vehicle as a result of the incident.[3]
[3] Ibid 15.
Mr WJB seeks a review of the decision made by the Commissioner. He relies on statements prepared by him and a statement from his wife and employer from the family day care centre. Mr WJB also relies on a report and oral evidence given at the hearing by his treating psychologist in relation to sessions undertaken by him under a mental health care plan. Mr WJB also gave evidence at the hearing and was given an opportunity to respond to questions asked about his offending behaviour.
What is an “exceptional case”?
The Commission for Children and Young People and Child Guardian Act 2000 (the Commission Act) does not define the meaning of an “exceptional case”. Section 226 of the Commission Act refers to certain factors that the Commissioner must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Commissioner reasonably considers to be relevant to the assessment of the person.
The object of the Commission Act is to ‘promote and protect rights, interests and wellbeing of children in Queensland’. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an exceptional case exists, ensure that the safety and wellbeing of children is its “paramount consideration”.[4]
[4] Commissioner for Children and Young People and Child Guardian Act 2000, s 155.
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[5] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[6] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[7]
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[6] [2004] QCA 492 at [28].
[7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
In the event that the Tribunal confirms the decision made by the Commissioner to issue a negative notice, Mr WJB is not prevented from applying to the Commission, at some future time, for a blue card to enable him to work with children.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
The offences took place in the background of financial stressors. After arriving in Australia, Mr WJB and his family fell on difficult times. Mr WJB concedes that there were financial pressures due to difficulties in finding work and Mr WJB’s marriage broke down while he was living in Perth.
Mr WJB is now the father of two young children and is expecting his third child in December 2013. He states that he reunited with his wife and children in March 2013. However, at the time of the hearing Mr WJB’s wife and children were overseas (since July 2013) and were not expected to return to Australia until sometime in 2014.
Mr WJB refers to his wife’s family as being a significant factor contributing to the financial pressures at the time of the offending behaviour. He gave evidence at the hearing about his wife receiving pressure from her family to give them money and that his wife’s family did not approve of her living with Mr WJB.
Mr WJB gave evidence at the hearing about changes that will take place in his personal life in early 2014. Mr WJB’s wife and children are expected to return to Australia in early 2014 together with 6 members of his wife’s family who will be moving to Australia on a permanent basis. He stated that he would talk to his wife’s family “as a community” upon their arrival about the difficulties in moving to a new country. He also gave evidence at the hearing that he purchased a ticket for his wife and children to go to Africa to visit family and that his wife talks in a “positive way” about him to her family.
The Tribunal did not get an opportunity to ask Mr WJB’s wife questions about the circumstances relevant to the offending behaviour, the financial pressures at the time of the offending behaviour; and the reconciliation of their marriage.
There is inconsistent evidence before the Tribunal about the date of reconciliation. Mr WJB states that he resumed his relationship with his wife in March 2013. There are, however, many references to Mr WJB’s “ex-wife” in his statements filed in these proceedings dated May 2013 and July 2013. Mr WJB submits that the inconsistencies to the references to his “ex-wife” are attributable to his language barrier in that English is not his first language.
The Tribunal does not draw any adverse inference about the references made to Mr WJB’s “ex-wife” in his statements. The Tribunal is satisfied that Mr WJB has had sufficient opportunity, for the purposes of making submissions and presenting evidence before the Tribunal, to clearly communicate all of the issues relevant to his application for review.
Mr WJB submits that since he and his wife resumed their relationship in March 2013 after the family court proceedings, there has been no offending behaviour. He submits that his “life has changed” since he saw his treating psychologist and he can now manage his anger.[8]
[8] Statement of Mr WJB (“personal history”) dated 22 July 2013, p 4.
The Tribunal respectfully has concerns about Mr WJB’s submission that there is no evidence of further offending behaviour since March 2013. This is because Mr WJB’s wife left Australia with his two children in July 2013 so there has only been some 3 to 4 months since Mr WJB and his wife resumed their relationship. The passage of time, being 4 months, is not sufficient for the Tribunal to be satisfied that Mr WJB’s ability to manage personal and financial stressors, that on his own evidence were a contributing factor to the offending behaviour, is no longer a real and present risk; and (therefore) there is no longer a risk of offending behaviour.
The Tribunal has concerns about the significant changes that will soon take place in Mr WJB’s life that may present him with a situation of financial and personal stressors; in particular the arrival in Australia of his wife’s family and the birth of his third child.
The Tribunal also has some concerns about Mr WJB’s insight into the offending behaviour and the particulars of the charges. Mr WJB presents a somewhat different version of events in regards to the circumstances of the offending behaviour. He argues that some of the police information is wrong. In relation to the offending behaviour on 22 January 2013, Mr WJB gave evidence at the hearing that his ex-wife has effectively said things to make it ‘look more ugly’. The police material provides that Mr WJB said to his ex-wife: ‘I will kill you’. Mr WJB states that he did not say those words. When asked by the Tribunal at the hearing if Mr WJB is making a submission to the effect that his ex-wife has lied to police, he answered: ‘yes’.
The Tribunal does not respectfully accept the submissions made by Mr WJB about a different version of events relating to the offending behaviour on the basis that Mr WJB has pleaded guilty to the charges. The Tribunal explained to Mr WJB at the hearing that the Tribunal must accept the particulars of the charge as contained in the QPS material.
The Tribunal in considering the treating psychologists’ evidence acknowledges that Mr WJB, to his credit, took the initiative to attend sessions for anger management. The treating psychologist prepared a report and gave evidence at the hearing. She confirmed that Mr WJB completed 6 sessions of treatment in January, February and early March 2013. There is, however, no independent psychiatric evidence before the Tribunal addressing the issue of anger management and Mr WJB’s ability to self-manage financial and personal stressors. The Tribunal also notes that the offending behaviour on 27 December 2012 took place after the first session with the treating psychologist.
The Tribunal acknowledges that Mr WJB has expressed regret for his behaviour. In relation to the incident on 27 December 2012 Mr WJB told the Tribunal at the hearing about his regret that the incident took place in front of his daughter. When asked by the Tribunal about how he thinks the incidents may have affected his wife, Mr WJB said that his wife’s family ‘hated her’ while she was staying with him. Mr WJB was not otherwise able to discuss or explain what impact the physical and verbal threats relating to his offending behaviour may have had on his wife in regards to any negative emotional and physical impacts.
The Tribunal has carefully considered all of the circumstances in this matter and the submissions made by Mr WJB at the hearing. The Tribunal has identified many issues of concern or exceptional circumstances that would make this matter an exceptional case in that it would not be in the best interests for children to issue a positive notice.
The exceptional circumstances identified by the Tribunal include the nature of the offending behaviour being serious and that it involved physical and verbal acts of violence in the presence of young children. The Tribunal has concerns that there has not been a sufficient amount of time since Mr WJB resumed his relationship with his wife and children to be satisfied that there is no longer a risk of offending. There has only been some 3 to 4 months since the reconciliation with his wife.
The Tribunal has identified changes that will soon take place in Mr WJB’s life in relation to his wife’s family moving to Australia and the birth of his third child. This may place Mr WJB in a position of financial and personal stress. The Tribunal cannot be satisfied having considered all of the circumstances that Mr WJB, when again faced with financial and personal stressors, will not reoffend. The safety and well being of children is the Tribunal’s paramount consideration in determining whether an exceptional case exists for the purposes of the Commission Act. For the reasons referred to, the Tribunal determines that the appropriate order is that the decision made by the Commissioner to issue a negative notice be confirmed.
Non-publication order
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as Mr WJB’s wife and children to be identified in circumstances where it would not be in the interests of justice to identify their names.
At the time of the offending behaviour there was a domestic violence order in place concerning Mr WJB’s wife. The offending behaviour concerned an incident that took place in the presence of Mr WJB’s children. The Tribunal is also satisfied that there is no public interest served by disclosing Mr WJB’s name in circumstances where disclosure of his name would identify his wife and children. The Tribunal therefore prohibits the publication of the names of Mr WJB, his wife and children.
0
2
2