CITATION:	MP v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 454	

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

APPLICATION NUMBER:	CML157-15	

MATTER TYPE:	Childrens matters 	

HEARING DATES:	12 October 2015; 17 November 2015	

HEARD AT:	Brisbane	

DECISION OF:	Member Joachim	

DELIVERED ON:	20 November 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The decision of the Public Safety Business Agency to issue a negative notice to MP is confirmed.
2.	The publication of information that may identify the applicant, his wife and their children is prohibited.	

CATCHWORDS:	Working with Children – Blue Card – where applicant from an African country has conviction for assault of 7 year old niece causing bodily harm – where applicant claims cultural differences led him to belief he was allowed to use physical discipline – whether risk factors outweigh protective factors – whether exceptional case exists – whether confidentiality order should be made

Child Protection Act 1999 (Qld), s 189, s 194
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s  226, s  266, s 360

Re TAA [2006] QCST 11
The Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492	

APPEARANCES:

APPLICANT:	MP represented himself.	

RESPONDENT:	Public Safety Business Agency represented by Ms N Taylor	

REASONS FOR DECISION

[1]	MP is 47 years of age and lives in Brisbane. He has immigrated from an African country, where he was employed as a policeman. He has a 30 year old son who lives in that country and he is the guardian of four other children of his siblings. Sadly, these siblings died. MP and his wife of two years look after these children who range in age from 7 to 17. 
[2]	MP was issued a positive notice and blue card on 8 October 2014. The positive notice was cancelled in May 2015 following the notification by the Queensland Police Service to Blue Card Services that MP had been charged with an offence of assault occasioning bodily harm whilst armed / in company. Subsequently MP pleaded guilty to the offence which involved striking his seven year old niece on multiple occasions on her leg and back, at her school on 13 March 2015.
[3]	He also pleaded guilty to wilfully disturbing the good order and management of a state educational institution. The reason for this charge was that the bodily harm charge was a result of his actions at the niece’s school in front of the school’s principal. As a result of the issuing of the negative notice, MP cannot hold a blue card to work with children. He had previously held this card, as he was working as a cleaner in a school. MP seeks a review of this decision so that he can resume this work or work of a similar nature. 
[4]	The offences occurred after MP and his wife were called to the school to discuss the niece’s inappropriate behaviour in class. MP had previously been appraised of some of the niece’s inappropriate behaviours and had spoken to her about them. According to MP this had not resulted in a change in the niece’s behaviour, behaviours which had escalated necessitating an interview with the guardians and the principal. After the interview, MP shortly thereafter produced a short rope from his bag and commenced hitting his niece on the back and legs. 
[5]	He disputes the police version of events in terms of the number of times he is alleged to have hit his niece. He says he hit her three times. The police report indicates he hit her up to a dozen times. The police reported two welts on the girls lower back, observed by the police who attended at the school. He was convicted in mid-2015 after pleading guilty of the offences. There was no conviction recorded and he was released upon entering into a recognisance in the amount of $500.00 on the condition that he keep the peace and be of good behaviour for a period of one year. 
[6]	None of the offences are serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Consequently, MP is entitled to receive a positive notice and blue card, unless it is considered his is an exceptional case such that it would harm children for him to have a positive notice. The PSBA considered MP’s case was an exceptional one. 
[7]	The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing. The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act. This outlines what I have to consider in deciding if an exceptional case exists.
[8]	The purpose of the review is to produce the correct and preferable decision. The Tribunal may:
a)	confirm or amend the Agency’s decision;
b)	set it aside and substitute its own decision; or
c)	set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.
[9]	Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special. 
[10]	I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
[11]	The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working With Children (Risk Management and Screening) Act 2000 (Qld). 
[12]	Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. 
[13]	Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not. 
[14]	In order to issue a positive notice to MP I need to be satisfied on the balance of probabilities bearing in mind the gravity of the consequences involved that an exceptional case does not exist. 
The case put by MP
[15]	In his application MP advised that he was never in trouble in his home country or Australia. He stated the physical disciplining of children was acceptable in his home country and it was the way he was brought up and is still acceptable there today. In his oral evidence he re-iterated that he was disciplined as a child with a rod, but only on one occasion.
[16]	In his application MP said that once he had heard that his niece’s misbehaviour was continuing he was upset and frustrated. In oral evidence, he denied being angry. In his application MP said once he left the principal’s office and was in the corridor outside and saw his niece he immediately expressed his anger to her, pulled a piece of rope out of his bag, and struck her two to three times on the back and legs. 
[17]	He stated she was crying and the principal intervened to stop MP from doing what he was doing. MP said that the principal expressed concern about what he was doing. In his application MP states he now understands that this form of discipline is completely unacceptable in Australia and he now sends his niece to her room when he has issues with her. 
[18]	He also stated that the Department of Child Safety were involved briefly. They were called but he says they took no action because they saw no reason to. MP stated in his application he only wants the best for his children. He stated in his application that he pleaded guilty to common assault, not assault occasioning bodily harm. He stated that the police accepted that he did not hit his niece ten times with a rope, but approximately three times and it was accepted by the police that no injuries occurred to her resulting in his only being charged with common assault. 
[19]	In his application he stated that the Magistrate accepted that he committed the offence due to cultural reasons and that he only wanted to do the best for his niece and stop her misbehaving at school. He stated that he will not use physical discipline with his children in the future. He has never acted inappropriately with children in the past, apart from physically disciplining his children and that there is no reason to believe that he will act inappropriately with any children in the future. 
[20]	In oral evidence MP stated that he took the rope to school to make his niece afraid and that he blames the principal for not controlling the situation of her behaviour at the school. He advised the Tribunal that he had made attempts to talk to his niece when her class teacher had advised him of her misbehaviour. 
[21]	He stated that he feels badly about what he did because the law says don’t beat children. He expressed the view that he did not think his actions had any impact on his niece. He considered that the niece was bringing shame on him and his family. 
[22]	He gave evidence that Child Safety sent two people to his house. He initially advised the Tribunal that he twice had people from the Queensland Program of Assistance to Survivors of Torture and Trauma (‘QPSATT’) come to his home and Mission Australia on three occasions. In later evidence he advised that the QPSATT personnel had not come to his home. This retraction was made after Ms Taylor pointed to a report from QPSATT in which it was reported that he and his wife did not wish them to attend. 
[23]	MP described as a fallacy comments made by Child Safety that his niece’s behaviour was consistent with children who have experienced emotional harm as a result of exposure to domestic and family violence, and that his recent behaviour indicates the children are all at risk of emotional harm as a result of exposure to domestic and family violence. 
[24]	He advised that Mission Australia stopped visiting a long time ago, and on visits they spoke to him about the relevant Australian law. He described his social support networks as his pastor and aunty who lives at Oxley. He advised he has attended church for the past 10 to 12 years and when he came to Australia has been attending his current church for the past two years. Nevertheless, he has not developed any personal friendships at the church. MP advised he currently works for Toll in a warehouse packing goods on trucks on a part-time basis. He has been there for approximately two months. His community activities of assisting in various activities with the church. 
[25]	In response to questioning about the police allegations and subsequent charges he admitted that despite the statement in his application, he acknowledged that the police did not accept he had hit his niece only three times, and did not charge him with common assault. He accepts now that the police did not accept his version of events. He advised the Tribunal that on Child Safety’s request he left the family home for approximately two weeks, was willing to go but felt sad about leaving the family. 
[26]	MP’s wife advised the Tribunal that she was present when the incident occurred but saw no marks on her niece’s body. She also indicated that the doctor at the hospital had said there was no bruises on her skin. MP’s wife advised that MP now disciplines the children by talking a lot to them and he had not physically disciplined the children before and has not done so since. She indicated that she had been concerned about the physical discipline because she understood that it should not happen that way in Australia and was afraid he would get a record. She also indicated that she told her husband that what he did should not happen again. 
[27]	She observed MP to hit their niece a couple of times only. She said she had taken her niece to the hospital at the principal’s request. She had been unaware that MP had the rope in his backpack. She gave evidence that MP is able to control himself and removes himself from situations of stress in the home. MP’s wife is of the opinion that the incident did not affect her niece. She advised that she was aware of the limits of discipline in Australia as she had lived here for ten years, whereas MP had only been in Australia a short period of time when the incident occurred.
[28]	A pastor from MP’s church gave evidence noting he had not seen any misbehaviour on MP’s part, and that he is one of the trustees of the church. The pastor indicated that he had known MP since he came to Australia, whereas in more recent times MP was given responsibilities in the church that he became more familiar with MP. In his opinion MP works hard in the community, is not a man of violence, and is able to fit into the community and work with anyone. He spoke of MP’s good work with youth at the church. His understanding of the incident was that there had been police involvement, that MP had gone to court but that it was a misunderstanding.
[29]	In summarising his case MP acknowledged that he did beat his niece but that she had no bruising or marks on her. He indicated that he had brought the children from Liberia to care for them and he loves the children. He considered that his niece’s behaviour was as a result of her being traumatised at school by being called ‘black’ and being discriminated against because she was from Africa. Nevertheless, he said he did not like her behaviour at school and encourages all his children to be good citizens. 
[30]	As far as the police evidence is concerned, MP submitted that the police can’t determine what injuries a person has, but rather a doctor and that there was no doctor’s report indicating injuries. Indeed on his wife’s evidence, the doctor at the hospital could find no evidence of bruising. 
The view of the Public Safety Business Agency
[31]	In a statement of reasons for cancelling MP’s blue card, the PSBA Deputy Chief Executive Officer Mr Patrick Vidgen, stated that he was satisfied that continuing the applicant’s blue card was not in the best interests of children and young people at this time. Mr Vidgen noted that the applicant’s recent charge for assault occasioning bodily harm whilst armed in company is of significant concern in the re-assessment as it is directly child related and involved a seven year old complainant. 
[32]	The material before him reflected adversely on the applicant’s ability to:
•	Employ appropriate and acceptable disciplining techniques with children;
•	Deal with conflict in a constructive manner;
•	Comprehend the impact of his behaviour upon the emotional and psychological development of children;
•	Promote the best interests of children in his care;
•	Provide a safe and protective environment for children;
•	Present as a positive role model for children and young people.
[33]	The Deputy Chief Executive noted that the applicant is expected to behave in an a manner that protects a child from harm and protects their wellbeing and that his offending raises significant concerns regarding his eligibility to continue to work in employment and business regulated by the act. The Deputy Chief Executive was satisfied that an exceptional case existed in which it would not be in the best interests of children for the applicant’s positive notice to continue for a number of reasons including:
a)	The applicant’s police information is recent in nature, arising in March 2015;
b)	His age means that his alleged actions cannot be mitigated on the basis of his youth;
c)	The applicant’s behaviour hitting the complainant approximately ten times with a knotted rope resulting in welts to her body demonstrated a blatant disregard for the physical and emotional wellbeing of the child;
d)	It does not appear that the applicant understands the unacceptability of his behaviour to discipline a child or address behavioural issues;
e)	Overall the material reflects adversely on the applicant’s ability to act in the best interests of children in his care, provide a safe and protective environment for children and present a positive role model to them.
[34]	The PSBA submitted that the community expects that persons who hold blue cards will behave in a non-violent manner towards children. The protective factors in this matter, from the Agency’s perspective include that MP now understands that physical discipline is unacceptable, that he has a good reputation at the church which includes good interaction with youth, and that he has changed his behaviours in terms of discipline according to his wife. 
[35]	The risk factors from the Agency’s perspective include MP minimising his offending behaviours, his disputing the police version of events including that the principal put himself between the child and him, and his belief that his beating the child had no impact on her. The Agency considers that MP has no insight into the effect of his behaviour on the child. The Agency also noted that at no stage in the assessment process to Blue Card Services, or in written submissions to the Tribunal, did MP reflect on the impact on the effect that his actions had on the complainant or the other children in his care, raising significant concerns about his level of insight.
[36]	The Agency submits that whilst MP expressed regret it was more related to his treatment over the incident rather than the impact that it had on the child. The Agency submitted that there is no independent evidence to support that he hit the child only three times. Nor is there any independent evidence that there was no bodily harm caused to the child. The Agency notes that MP was not found guilty of lesser charges and urged the Tribunal to accept the facts in the police brief. 
[37]	A further risk factor submitted by the Agency is that the strategies outlined by the Applicant to discipline children in the future are minimal other than sending the child to his or her room to sleep. The Agency argued that there are no other tangible strategies in place, and that there is no contemplation that this behaviour could occur outside of the home. The Agency submits that there is a risk that MP will resort to physical discipline when under stress as he was at the time of the incident.
[38]	The Agency argued that the weight that I should give to the evidence of MP’s wife and the pastor should be tempered because in the wife’s case it is argued that she lacked objectivity and had decreased insight, whilst in the pastor’s case he was not aware of the offending behaviour and considered it a misunderstanding. 
[39]	The Agency argued that the risk factors outweigh the protective factors and that an exceptional case existed. In the Agency’s written submission, the Agency refers to material from the Department of Communities, Child Safety and Disability Services, noting that the Department recorded that substantiated harm had occurred although the child was not in need of protection following an investigation and assessment of the circumstances. 
The Tribunal’s View
[40]	What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the objects and intention of the Act: that is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing. 
[41]	There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
[42]	Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon. 
[43]	This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary.
[44]	I need to have regard to s 226(2) of the Working with Children Act in deciding if MP’s case is an exceptional one. I have noted the criminal history. I consider this type of offending does have relevance to child related employment. I have noted the penalties involved. I note the offences have occurred this year. The assault on his niece does MP no credit. 
[45]	In my opinion MP continually attempted to downplay the significance of the incident. For instance whilst pleading guilty and being convicted of assault occasioning bodily harm, he continues to assert that the assault was not a serious one, that the child was not hurt in any way. This is despite the police brief. MP argues that the police were not present and therefore could not know what occurred. The police however report welts on the child’s legs and back. The principal reported to the police that the girl was struck approximately on ten occasions and that he physically intervened. MP disputes this. He attested in his application he was charged only with common assault. This is not correct.
[46]	MP, in his application, states that Child Safety were called in and took no action because they accepted that his niece was not in anyway at risk as a result of being brought up by him. He also stated that they took no action because they saw reason to. This is incorrect and again in my view represents a minimisation by MP of what occurred. Child Safety requested MP leave the family home for two weeks whilst they conducted further investigations. They also required MP and his wife to participate in an active intervention program which involved Mission Australia being involved in the family. Child Safety substantiated that harm occurred to the niece. 
[47]	I accept that there may be cultural differences between his country and Australia in relation to the disciplining of children and I accept that the applicant is now aware that he should not strike his niece in the way he did. It seems to me that he does not, however, appreciate that his actions had any impact on her whatsoever. I do not accept this. 
[48]	I also take into account the protective and risk factors following the example in The Commissioner for Children and Young People and Child Guardian v Maher & Anor. The protective factors in this case are:
•	MP has accepted long term care of his siblings’ children;
•	The children did not report any matters of concern in the home to the Department of Child Safety;
•	The Department of Child Safety permitted MP to return to the family home after two weeks;
•	The Department of Child Safety reported that MP’s wife did not support what he did;
•	MP understands that disciplining children by corporal punishment in Australia is not acceptable.
[49]	The risk factors are:
•	MP’s offending occurred very recently;
•	MP minimises his actions in terms of both the impact on his niece and what was alleged to have happened;
•	MP minimised the involvement of Child Safety;
•	MP’s wife did not intervene at the school;
•	MP was not altogether truthful with the Tribunal in relation to his allowing agencies into his home and his statements in his application regarding the police brief and what he was charged with. 
[50]	I accept the submissions of the Agency that MP has little insight into his offending behaviour. This is of concern. In the published reasons of Re TAA the former Children Services Tribunal stated at paragraph [97] of its reasons:
[97] The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependant on the adults around them having insight into their actions and the likely effect on children.
[51]	I consider this paragraph highly relevant in this matter. I accept the submissions of the PSBA that the risk factors outweigh the protective factors in this matter. I also accept the Agency’s submission that MP provided very limited detail about the specific methods he utilises for disciplining his children and that more extensive evidence of his strategies and detail about what changes he has made to his parenting style and disciplinary measures is required to mitigate the risk. 
[52]	I accept the material in the police brief. In my view, it is more likely than not that the child was hit more than three times, and it is more likely than not, that she had welts to parts of her body. This was a premeditated action on behalf of the Applicant. He was intending either to frighten the girl or to strike her. I believe it was the latter and this was confirmed by the wife’s evidence. 
[53]	The assault occurred only months ago. I consider this to be an exceptional case and will therefore confirm the decision of the Agency to issue MP with a negative notice. The period of his good behaviour required under his conviction ends in June 2016. If MP continues to be of good behaviour he will be eligible to apply for a blue card in May 2017. This will allow him sufficient time to demonstrate positive behaviours over a longer period of time and to undertake some parenting courses if he wishes. 
[54]	To MP’s credit he is caring for four children who are the children of his siblings. He and his wife are to be commended for undertaking to raise the children and to bring them to Australia. 
Confidentiality Order
[55]	The Agency seeks an order prohibiting the publication of the names of all children and all identifying particulars which would reasonably lead to the identification of the children including the applicant’s name, and the name of the name of the applicant’s partner. This request is made pursuant to s 66 of the QCAT Act, ss 189(1)(a) and 194(1)(a) of the Child Protection Act 1999 (Qld). I agree with the submissions of the Agency and will make an order to that effect. In relation to s 66 of the QCAT Act it is not in the interests of justice for any identifying particulars of the children or the guardians to be identified.