CITATION:	YYJ v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 347	

PARTIES:	YYJ 
(Applicant)	
	v	
	Chief Executive Officer, Public Safety Business Agency
(Respondent)	

APPLICATION NUMBER:	CML254-14	

MATTER TYPE:	Childrens matters 
	
HEARING DATE:	16 April 2014	

HEARD AT:	Brisbane	

DECISION OF:	Member Quinlivan	

DELIVERED ON:	20 August 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The decision of the Chief Executive Officer, Public Safety Business Agency to refuse the applicant a positive notice and a Blue card is confirmed
2.	The Tribunal prohibits the publication of the names of the applicant and his children and the names of the witnesses.
3.	The Reasons will be published in a de-identified format. 
	
CATCHWORDS:	Childrens matters - blue card - “exceptional case’ - domestic violence 	

APPEARANCES:

APPLICANT:	YJJ	

RESPONDENT:	Chief Executive Officer, Public Safety Business Agency – Mr Peter Reid

REASONS FOR DECISION

Background

[1]	YJJ (the applicant) was born in 1963 South Sudan. He had three brothers and one sister. Sadly, by the age of five, a number his family had died and he was taken to live with his grandmother.
[2]	He says that he had an “optimum care” and respectful upbringing. He says that his grandmother was a Christian woman and alcohol was not permitted in her home. He claims that he is not an emotional person and it takes time for him to become angry. 
[3]	He has been with his wife for a very long time but coming to Australia was a cultural shock because his culture completely conflicts with the culture here. The applicant came to Australia as a refugee in 2007. His wife migrated to Australia as a refugee in 2005.
[4]	He points out that in his country a woman has clear responsibilities within the family. Some of the responsibilities include preparation and saving of meals. A married woman is not allowed to do things like use makeup unless given permission by her husband. Girls are not permitted to engage in sexual relationships with boys unless they reach a mature age and get properly married with a bride price paid. Men are not allowed to interfere with women’s duties.
[5]	He says that these cultural differences have made it difficult for men from his country of origin to cope with life in Australia. However, he says that he is well-known for his kindness and hard work and he has never had a quarrel with any of his friends or peers.
[6]	The applicant says that his attitude to women is positive and that he gets on well with them. He says that he is passionate about children and when he was made to leave the family home, his children missed him a lot and he missed them too.
[7]	The applicant says that he is getting support from his community particularly from those members who had experienced similar problems to him, who are now advising him on how to cope with his present situation.
[8]	He acknowledges that he has not received any rehabilitation or counselling from a professional person but he has relied heavily on community members. He says that they have advised him to leave drinking and he has heeded their advice. He claims that he is now alcohol free for three years and as a result his relationship with his wife has improved tremendously.
[9]	The applicant says that it is through the help and co-operation of his wife that he is appealing to the Tribunal to issue him with a positive notice so that he can get a Blue card to enable him to work in child related employment.
[10]	He claims that he has only been married once and is still with his wife. He claims that their relationship has been excellent except when they arrived in Australia and it became “stormy”. He described how he found the change in Australia to be difficult and this led to conflict but he now says that he has come to his senses and has tried to adjust himself in order to cope with this new way of life. He says that his wife and he are now getting along very well.
[11]	The applicant described a problem with his daughter who was “bleaching” and using make-up. He did not want her to do this. He wanted her to be a decent girl so that she could have a decent marriage in the future. He says that in South Sudan women who bleached their bodies are regarded as prostitutes. He says that the problem was that he did not use a better way to convince her. He said he used force, the way that they do Africa and he is extremely sorry for that and he has promised not to do that again.
[12]	The applicant's children are now aged 21, 19, 17 and 15 years.
[13]	The applicant denies ever taking drugs and says that his problem has only been alcohol. In his own words, he says “… thank God I have left drinking without any prescribed medication or rehabilitation programs. I left drinking for three years now and I don't think I will repeat drinking again”.
[14]	On 24 March 2014, the applicant applied to the Commissioner for Children and Young People and Child Guardian (now the Chief Executive Officer, Public Safety Business Agency) to be issued with a positive notice and Blue card for the purpose of working in child related employment.
[15]	On 3 April 2014, the Chief Executive received information from the Queensland Police Service regarding the applicant's criminal history.
[16]	On 22 October 2014, after considering submissions from the applicant, the Chief Executive issued him with a negative notice.
[17]	On 9 December 2014 the applicant lodged an application to the Queensland Civil and Administrative Tribunal (QCAT) seeking to review the decision.
[18]	The issue to be determined in this case is whether the applicant's case is an exceptional one in which it would not be the best interests of children for the applicant to be issued with a positive notice and Blue card.
[19]	The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the “Act”)” and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The paramount consideration is the welfare and best interests of children. In that context, a child is entitled to be cared for in a way that protects the child from harm and promotes the child's well-being.
[20]	Section 221 of the Act states that the Chief Executive must issue a positive notice to the applicant if the Chief Executive is aware of a conviction of the applicant for an offence other than a “serious” offence, unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice. In that case the Chief Executive must issue a negative notice to the applicant.
[21]	In deciding whether the case is and exceptional case, the Chief Executive and consequently the Tribunal must have regard to the matters set out in section 226(2) of the Act.
[22]	The Section provides that the Chief Executive must have regard to the following— 
a)	 whether it is a conviction or a charge; and  
b)	whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and  
c)	when the offence was committed or is alleged to have been committed; and  
d)	the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
e)	 in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;  
[23]	The Tribunal must issue a positive notice to the applicant if it is satisfied on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an “exceptional case” does not exist. Neither party bears an onus to prove that an “exceptional case” exists.
[24]	The Chief Executive submits that the Appeal Tribunal has stated that “phrases like “exceptional case” must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the person whom it is here, quite obviously designed to protect: children”. Further the Appeal Tribunal has observed that “the proper approach to it is that, with respect, adopted by Philippides J : to consider its application in each particular case, unhampered by any special meaning or interpretation”.
[25]	The Chief Executive also points out that any hardship or prejudice suffered by the applicant is irrelevant to determining the issue as is any benefit to children that may result from the applicant having access to children. Also the Chief Executive submits that relevant Tribunals have indicated that the passage of time alone is not determinative of whether or not a case is an exceptional one.
[26]	The applicant's criminal history in Queensland consists of two entries. On 13 May 2008, the applicant was found guilty of breaching release conditions. He was fined $400 and no conviction was recorded. On 19 October 2009 the applicant was found guilty of breaching an order and was placed on parole for a period of 12 months with no conviction recorded. Both matters related to offences as set out in the Domestic and Family Violence Protection Act 1999.
[27]	The Chief Executive points out that in relation to the first matter, the applicant assaulted his wife and a child and in relation to the second matter the applicant assaulted his wife in the presence of children.
[28]	Material obtained from the Department of Child Safety indicates that on the occasion of the first breach, the applicant was drinking when he became aggressive and verbally abusive towards his wife and children. It was alleged that the applicant slapped his wife across the face and punched her several times. Following the incident, the applicant left the family home and resided with his brother for several months. He accepted community support to reduce the likelihood of further incidents and apologized to his children for his behaviour. At the time he was assessed to not be a violent person.
[29]	In May and June 2009, the Departmental records indicate there were two more instances of domestic violence. In relation to the first occasion, the applicant was intoxicated, verbally abusive and made threats to punch his wife in the face. In relation to the second incident the applicant was alleged to have punched his wife grabbing her in the chest and placing his hands around her neck. During the assault he said to his wife “… you will need an ambulance with what I'll do to you”. One of their children contacted the police. The children presented as nervous, scared, visibly distressed and not wanting to remain at home.
[30]	In 2011 the applicant was picked up for drink driving and was also issued with a domestic violence order that stopped him from seeing his children.
[31]	The Departmental records indicate that in August 2012 the applicant's wife reported another physical altercation with her husband to the police. At the time the applicant was affected by alcohol and he made threats to harm or abduct the children.
[32]	The applicant's wife provided a statement to the Tribunal in relation to the review. She says that during the period from 2012 - 2014 a protection order was issued to keep the applicant away from her. The applicant completed the two-year period (10/09/2012 to 09/09/2014) successfully without breaching it or causing any violence. According to her, she thought that after completion of the protection order, the applicant was supposed to be free without restrictions to visit or live with her and the family.
[33]	However, the applicant was unable to return to the family home because his wife was running a Family Day Care business. As a result, any adult living in the house must have a Blue card. Consequently, the applicant is not allowed to visit or live with her and their family. She says that she cannot afford to lose her Family Day Care business by allowing her husband to return home but at the same time she needs a lot of moral and emotional support from him.
The Chief Executive’s perspective?
[34]	The Chief Executive submits that in Maher’s case the Court of Appeal endorsed the approach of identifying and balancing the “risk” and “protective” factors arising from the circumstances of a particular case. Therefore, the weight to be applied to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.
[35]	The Chief Executive has identified the following protective factors for the applicant:
•	He appears to have the support of his wife and his social network within his Community;
•	Except for a driving offence in 2011, he has not had any further entries in his criminal history since 2009;
•	He considers that alcohol was a contributing factor to his offending and he sought sought assistance from his community leaders to deal with the issue;
•	He continues to seek employment while studying English at TAFE;

[36]	In contrast, the Chief Executive submits that there are a large number of risk factors to be considered:
•	The applicant was involved in two domestic violence incidents in 2008 and 2009. In 2008 he assaulted his wife and daughter. In 2009 he again assaulted his wife. On both occasions they were children present;
•	He has provided limited details of the support he has received from his community elders such as details of when the approach to the community elders was undertaken, the duration of his involvement with the community elders, and whether further support and involvement from the community elders is contemplated;
•	He has not received professional treatment from a recognized service and therefore he may be vulnerable to future relapses. Therefore, there is a risk that he may return to consuming excess amounts of alcohol;
•	He has not identified any strategies he would use if he were tempted to consume alcohol in the future, except to say that he will not drink again; There was a concern that the applicant may not have been affected by alcohol at the time of his offending in which case it may be that the applicant displays violent tendencies in other situations; 
•	The applicant has not provided any evidence that addresses his reflections upon any anger management issues and without an effective therapeutic plan, the Tribunal cannot be satisfied that the applicant is not a risk to the safety and well-being of children;
•	The applicant has not provided any evidence regarding his recent interactions with children that could be relied upon to mitigate the risks that have been identified;
•	The applicant has not adequately demonstrated a level of remorse for the assault against his wife and daughter and the likely psychological impact that his actions would have caused both of them;
[37]	In his final submissions the representative for the Chief Executive emphasized that the applicant's reliance on alcohol was quite intense in that he drank until there was no alcohol left. He submitted that the advice received by the applicant from the Elders was well-intentioned but it was appropriate that professional services should have been sought. The applicant has assaulted family members and it is likely that he may have psychological issues from the time he spent in the war zone in South Sudan and the refugee camp in Uganda. Consequently, he may have deep-seated issues that have not been addressed.
[38]	The Chief Executive acknowledged the help received by the applicant from the Elders and the evidence that there has been alcohol consumption for three years. However, he pointed out that the applicant has not been living at home, he has been subject to a Protection Order and therefore there has been no opportunity for the applicant to engage in at least some of his previous behaviour.
[39]	The Chief Executive submitted that the risk factors raise serious concerns regarding the applicant's ability to make appropriate behavioural choices in the best interests of children and young people. He strongly submitted that the Tribunal cannot be satisfied that the applicant has adequately addressed the risk factors. Therefore, the Chief Executive submitted that this is an “exceptional” case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and a Blue card at this time.
The applicant’s case:

[40]	The applicant also expressed strongly that he has “a pain in (his) heart about all the things that have happened. The last three years have been very hard.” His case consists of his life story and a number of supporting statements from his wife, AJ, the Chair of the local cultural group and a Community Elder, NS, the vice-chair of the Community Group, his sister-in-law and another community leader.
[41]	All of these people addressed in some detail the distressing experiences and significant stresses experienced by the applicant when coming to Australia and the challenges which the applicant has faced since arriving here. It is clear to the Tribunal that all of these people regard the applicant as a good person who should be able to reunite with his family and get on with his life.
[42]	In particular, AJ describes how the Council of Elders under his leadership held several advisory meetings with the applicant and his family to resolve their problems. He says that in these meetings the applicant was advised to stop drinking alcohol, which was the main cause of the domestic violence.
[43]	In his opinion, these meetings have had some positive impacts because the applicant has stopped drinking alcohol for the last three years. There have been no reports of physical abuse. The applicant has not breached the Protection Order. He is actively seeking employment and has been supporting his sons in their sporting activities.
[44]	AJ emphasised that a Protection Order was in place from 2012 to 2014 to keep the applicant away from his wife and family due to domestic violence. He asserts that after the completion of the period, the applicant was supposed to be free without restrictions to visit or live with his wife and family. Unfortunately, he cannot do that because his wife is running a Family Day Care business and that means that any adult living in her house should hold a Blue Card.
[45]	The sentiments expressed by AJ were echoed in the evidence by each of the applicant’s supporters. They indicate that, since moving to Australia, the applicant has suffered stress as a result of his lack of English, being unemployed and having to assimilate into a new culture. They claim that his heavy drinking and domestic violence is completely out of character. 
[46]	They describe him as being an active member of his church who is involved in children's activities and who is good with his hands and prepared to do anything to support his family.
[47]	The evidence indicates that the applicant is studying English at TAFE and is on a QPASTT (Queensland Program of Assistance to Survivors of Torture and Trauma) waiting list for trauma counselling to help him manage his experiences of traumatic stress.
[48]	The applicant's supporters also point out that the applicant is actively looking for employment so that he can support his family properly. They say that having a Blue card will greatly improve his chances of getting a job as a groundsman or gardener at schools.
The outcome?
[49]	It is necessary for the Tribunal to determine whether the applicant's case is an exceptional one. The Tribunal must decide this matter afresh and in particular, must take into account the factors set out in section 226(2) of the Act.
[50]	The applicant has been convicted of two offences relating to domestic violence. On 13 May 2008 he was convicted of a breach of release conditions, and fined $400 with no conviction recorded. On 19 October 2009 he was convicted of a breach of order – respondent present in court and was placed on probation for 12 months with no conviction recorded.
[51]	The Tribunal notes that subsequent to these matters, the applicant was disqualified from driving in 2011 and was subject to a domestic violence protection order from 10 September 2012 to 9 September 2014. There appears to have been no breach of this order.
[52]	While neither of the offences are categorized as serious or disqualifying for the purposes of the Act, the Tribunal notes that they occurred in the presence of children or a child was involved.
[53]	The applicant is now a 52-year-old man. At the hearing the Tribunal had the opportunity to observe him and hear his responses regarding his behaviour. He presented as sincere and thoughtful. He demonstrated a limited understanding and insight into Australian culture. 
[54]	He found it it difficult to demonstrate any insight into his behaviour because his own life experience in Sudan was so different. When asked about any feelings or reflections he may have regarding the domestic violence involving his wife and children, his response was “Not good”.
[55]	While the applicant demonstrated only limited insight and remorse in relation to his offending, the evidence of his supporters gave the Tribunal the impression that he is a good man and a positive role model to children and young people who he may come in contact with when he is not affected by alcohol. However, the only positive strategy that the applicant was able to state was that he had stopped drinking alcohol for a period of three years.
[56]	The applicant's wife gave evidence that the applicant has said he won't drink and from her perspective if would be the end of his life it he did. She said that if he starts drinking again she will report him. She admits that at the time he was drinking she feared for her own and her children's safety. In her view his stress levels seem to have gone down but he is now missing her and his family. She says that he is heavily involved in their community and family activities and is a very loyal good man.
[57]	The Tribunal has taken into account the decision in CCYPCG v. Maher & anor. there are some other protective factors in that the applicant has a strong supportive partner, there are no current domestic violence concerns, the applicant is currently seeking work and appears to be refraining from consuming alcohol. 
[58]	However, the Tribunal is conscious that the applicant was subject to a Protection Order until 9 September 2014.
[59]	While the applicant has refrained from drinking alcohol this is only one aspect of the factors that would have to be established before a Blue card could be issued to the applicant. The applicant has engaged in serious domestic violence in the presence of his children and even after having been convicted in relation to 2 offences, he was subsequently placed on a protection order until relatively recently.
[60]	It is clear that he is receiving excellent support from his cultural community but he has not received any professional assistance regarding his alcohol abuse or domestic violence.
[61]	The Tribunal is not satisfied that the applicant has provided any evidence to demonstrate his remorse or insight into his behaviour and it’s impact particularly on children.
[62]	The Act provides checks and balances to ensure that if a person is to be approved to hold a Blue card it would not harm the best interests of children to do so. The objects of the Act are “to promote and protect the rights, interests and well-being of children in Queensland”.
[63]	The applicant has had an extremely difficult and challenging life experience. Since he has come to Australia he has experienced more challenges and difficulties. He has made changes to his life and appears to be living in a law-abiding manner as society expects.
[64]	The Tribunal acknowledges that the applicant’s offending behaviour dates back to 2008-2009. However, it would appear that he continued drinking alcohol and engage in acts of domestic violence until at least 2012. The Tribunal has taken into account the various matters listed in section 226(2) of the Act. There is little evidence to suggest that the applicant will not revert to his previous behaviour apart from his own good intentions and the expectations of his community.
[65]	The Tribunal finds that the changes that the applicant has made to his behaviour are not sufficient to establish that his case is not an exceptional one.
[66]	The focus of a Blue card decision must be on children and the Tribunal is not satisfied that sufficient time has elapsed to be convinced that the applicant will not continue to engage in violent behaviour and refrain from alcohol. The Tribunal is very aware that the applicant’s wife conducts a business in the family home, which requires that all adults living in the home hold a Blue card
[67]	The Tribunal has decided that this is an exceptional case such that it would not be in the best interests of children for a Blue card to issue to the applicant at this time.
[68]	While neither party has made an application for a non-publication order under section 66 of the QCAT Act, the Tribunal is satisfied that the name of the applicant and his partner and their children as well as the witnesses should be de-identified as it is in the public interest. The principles of openness and accountability can be achieved and maintained by permitting the public to access the details of Blue card matters, the decisions by the Tribunal and the reasons behind the decisions. The publication of this decision will occur in a de-identified manner.
[69]	The orders that the Tribunal makes are:
1.	The decision of the Chief Executive Officer, Public Safety Business Agency to refuse the applicant a positive notice and a Blue card is confirmed
2.	The Tribunal prohibits the publication of the names of the applicant and his children and the names of the witnesses.
3.	The Reasons will be published in a de-identified format.