Fisher v Commission for Children and Young People and Child Guardian

[2010] QCAT 294

CITATION: Fisher v Commission for Children and Young People and Child Guardian [2010] QCAT 294

PARTIES:	Deidre Fisher
v
Commission for Children and Young People and Child Guardian

APPLICATION NUMBER:   CSR239-09

MATTER TYPE: Children’s matters

HEARING DATE:     28 January 2010

HEARD AT:  Brisbane

DECISION OF: Mr Nathan Jarro (Presiding Member)
Ms Julie Ford (Member)

DELIVERED ON: 28 January 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:  

1. The Tribunal sets aside the decision of the Commission for Children and Young People and Child Guardian to issue a negative notice to Ms Fisher. 

CATCHWORDS :  Blue card, Tribunal not satisfied that this is an exceptional  case in which it would not be in the best interests of the children to issue a positive notice to applicant, Tribunal is satisfied that applicant does not present as an unacceptable risk to children nor that it is an exceptional case

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Deidre Fisher
RESPONDENT:	Commission for Children and Young People and Child Guardian

REASONS FOR DECISION

1. Ms Fisher was born on 26 June 1979. She is a single mother of two children - a 13 year old daughter and a nine year old son.  Relevantly Ms Fisher has a criminal history with convictions broadly relating to: common assault (x 1); behaviour in a disorderly manner (x 1); and possession of dangerous drugs (x 5). Ms Fisher’s last criminal entry occurred on 28 June 2007 for possession of a dangerous drug and possession of utensils or pipes that had been used. For those offences Ms Fisher received a 12 month probation order. Approximately 16 months prior to that, Ms Fisher was also the subject of another 12 month probation order following an earlier conviction for possession of dangerous drugs.

1. All of these convictions are not deemed “serious offences” for the purposes of the Act (s. 99C) and in those circumstances, the Act requires the Commission to issue a positive notice unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice to Ms Fisher (ss. 102(4)).

1. On 10 March 2009, Ms Fisher applied to the Commission for a blue card. Following a police check, Ms Fisher was informed by the Commissioner that she proposed to issue a negative notice. Ms Fisher was invited to provide submissions to the Commissioner in relation to the circumstances relevant to the entries on her criminal history and about why the Commissioner should not issue Ms Fisher a negative notice. Ms Fisher did not provide submissions and, as a consequence, the Commissioner assessed the application based on the material before her. The Commissioner was unable to conclude that the circumstances or triggers that led to Ms Fisher’s offending were now absent. In addition, the Commissioner was unable to gain any insight into Ms Fisher’s interaction with children in recent times, which the Commissioner indicated, could have been relied on to mitigate the risk factors raised by the criminal history. As such the Commissioner determined that there was insufficient evidence before her to displace the serious risk factors raised by Ms Fisher’s criminal history and was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued. Consequently a negative notice was issued. 

2. Ms Fisher sought redress through the Children Services Tribunal (and now the Queensland Civil and Administrative Tribunal). A Preliminary Conference occurred on 24 November 2009 followed by a hearing of this matter on 28 January 2010. At the Preliminary Conference, a direction was made for Ms Fisher to supply to the Tribunal a list of witnesses, witnesses statements and all other documentation to be relied on at the hearing. Four statements were received on behalf of Ms Fisher; including her own statement. In addition, the Tribunal issued a Notice to Produce to Queensland Corrective Services in relation to Ms Fisher’s probation records. Those records have been considered by this Tribunal in reaching its decision.

The Law to be Applied

1. Section 102 of the Act deals with the decision of the Commission on an application for a positive notice. Under ss. 2, unless the application is withdrawn, the Commission must decide the application by either approving the application (a positive notice) or by refusing it (negative notice). Its purpose is to ensure that persons employed in particular employment, or carrying on particular businesses, as prescribed under the Act, undergo screening (see s. 95).  By virtue of s. 96, the paramount consideration in making a decision under Part 6 of the Act is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.

2. Relevantly ss. 102(3) and (4) of the Act provide that where an applicant for a blue card has been convicted for an offence other than a “serious offence”, the Commission must issue a positive notice unless satisfied it is an “exceptional case” in which it would not be in the best interests of children to issue a positive notice. Insofar as “exceptional case” is concerned, the Act does not define this phrase. 

1. A discretion is conferred by ss. 102A(2)(b) for the decision maker to take into account other matters it sees fit.

2. The role of this Tribunal is to decide the matter afresh and take all reasonable steps to ensure it has all relevant material before it.  The Tribunal may have regard to relevant material that was not available to the Commissioner at the time her decision was made. For example, the Tribunal can consider evidence of remorse and insight into the offending behaviour that which was otherwise deprived of the Commission at the time of considering its decision. The significance of a person’s insight into the consequences of their actions is highlighted in TAA [2006] QCST 11 in which the Children Services Tribunal noted as follows:

   “A person aware of the consequences of his actions on others is less likely to reoffend than a person who has no insight into the affect of his actions on others.  This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely affect upon children”.

3. As indicated earlier, the paramount consideration in making a decision is the child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. The Tribunal, and the Commissioner, must consider the concept of “exceptional” cases. What constitutes an “exceptional case” is a matter of fact and degree in the whole of the circumstances in each particular case. A body of case law has evolved regarding “exceptional case” and the Commissioner and the Tribunal have relied on the following:

   a.    In Re Imperial Chemical Industries Ltd’s Patent Extinction Petitions [1983] VR 1, Fullager J stated:

   “Perhaps the best known and most frequently sighted judicial statement of the indicia of ‘exceptional cases’ is in the judgement of Luxmoore J in Perry v Brown’s Patents (1930) 48 RPC 200, and in view of the arguments before me I draw particular attention to his warning that ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case . . . All these matters are matters of discretion”.

   b.In Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, McPherson JA confirmed the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”.

   c.In In the marriage of Sandrk (1991) 104 FLR 394 at 399-400 “exceptional” was described as to . . . “take it out of and beyond the ordinary circumstances reasonably expected to occur”.

   d.The term “exceptional” was considered in Schwerin v Equal Opportunity Board [1994] 2 VR 279 at 287-288 must be “...of the nature of or forming an exception; out of the enduring cause, unusual, special”.

10.Further, in assessing whether a case is “exceptional”, regard must be had to the matters outlined in s. 102A of the Act. 

The Evidence

11.Ms Fisher, presently aged 30, did not have an ideal childhood. Her parents divorced when she was 9 years of age and her mother married a perpetrator who sexually abused Ms Fisher from the ages of 9 through to 15. When Ms Fisher confided with her mother about the sexual abuse, Ms Fisher was forced to return back to her alcoholic natural father. By 16, Ms Fisher was living in a youth shelter. It was there she was introduced to marijuana, a drug which she consumed for the next 12 years. She noted that it helped ease the pain and dull out her early childhood. During the time at the youth shelter, Ms Fisher commenced a relationship with her future husband. His lifestyle included marijuana. Ms Fisher admitted quite openly in her evidence that she took marijuana on a daily basis. She admitted that she was addicted to it. 

12.She separated from her husband in 2007 but prior to that, was “getting sick of taking drugs and getting too much into trouble”. She then made the decision to cease marijuana. The primary motivation being that she worried for her children and the thought of potentially losing them to the Department of Child Safety. She desperately wanted to change her lifestyle and she separated from her husband who by that stage had moved onto more serious drugs. Ms Fisher stated in her evidence that “I was 28.  I needed to make a decision to change my life”. For Ms Fisher, she recognised that she had enough of the trouble she attracted in the past. To her surprise, Ms Fisher stated that it was easier than she expected to stop marijuana. She was surprised about how easy it was for her to cease marijuana use even in the early stages when she was surrounded by people who consumed marijuana. She no longer associates with those individuals. 

13.Surprisingly Ms Fisher’s children have not been adversely affected by their mother’s past marijuana history. In her evidence, Ms Fisher indicated that her children are performing extremely well at school and continue to flourish to this day. Ms Fisher’s daughter, to her mother’s credit, plays representative netball, district netball, club netball, school netball, and plays alongside her mother in a ladies competition. Ms Fisher’s daughter was also school captain last year and was school dux.

14.Ms Fisher’s son has a high level of intelligence. He has the mathematical intelligence of a 16 year old. He plays indoor soccer, outdoor soccer and was accepted into a Soccer Academy, which he attended and showed promise throughout 2009.

15.Ms Fisher has been heavily involved in netball. She played for the past 15 years and thoroughly enjoyed coaching. She coached a team into the grand finals last year and was successful in that premiership. 

16.The major reason for Ms Fisher’s application for a blue card is because of her devotion to her children and commitment to the sport of netball.

17.During her period of marijuana use, Ms Fisher told the Tribunal that her children never witnessed her taking drugs. She was adamant that neither she nor her ex-husband ever consumed the drug in front of their children.

18.In cross examination, Ms Fisher was aware of literature in terms of the potential to relapse. She was adamant though that she was not going to become another statistic. To date, and whilst the Tribunal acknowledges that she was under a 12 month period of probation, the Corrective Services records indicate that she will successfully follow through with her desire to never consume marijuana in the future.

19.After making the decision to cease marijuana consumption, Ms Fisher attended counselling for a period of 12 months with Mr Rob Yule from ATODS. Mr Yule was not able to provide evidence as he was undergoing surgery at the time of this hearing. The representative from the Commissioner, Mr Geoff Woodberry, who is to be commended for his conduct during the hearing, upon hearing the evidence of the other witnesses called on behalf of Ms Fisher (see below) considered it unnecessary to require Mr Yule for evidence.

20.Ms Fisher has no intention of resuming marijuana use. She learned from Mr Yule that, in order to give up marijuana, it comes down to the individual and that if one “breaks the cycle, stick to your goals, you can do it”.

21.Ms Fisher is in a committed relationship with a new partner who is “not in the drug scene”. She receives a high measure of support from him as well.

22.Ms Fisher was referred by Centrelink for psychological treatment and underwent 6 counselling sessions in Caboolture. That ceased about 18 months ago.

23.She has started reconnecting with her family (brother) to work through issues of the past. Ms Fisher acknowledged that when smoking marijuana in the past she had an anger management issue. Now because of the cessation of marijuana, she has no anger management issues. When taking marijuana in the past, she noted that she had too much time on her hands. Ms Fisher now undertakes to keep herself occupied. She works 10 hours a day, is a single parent, enjoys driving her children around and going to the beach with them. She now uses her energy into day to day life of looking after her children.

24.It is clear on the evidence and conceded by the Commission during the hearing that Ms Fisher was never clearly a heavy drug user.

25.During her remission, Ms Fisher sought treatment from General Practitioner, Dr Lewis Lassig. Dr Lassig provided evidence to the Tribunal. Dr Lassig has been Ms Fisher’s treating General Practitioner from January 2005. He last treated Ms Fisher in July 2009 in relation to a chest infection. Dr Lassig’s evidence, in some respects, corroborated Ms Fisher’s evidence. For instance, Ms Fisher openly acknowledged in her evidence that one of the side effects for ceasing marijuana was weight gain. Dr Lassig indicated that shortly after ceasing marijuana, Ms Fisher (in one of his consultations with her) sought treatment for weight gain. According to Dr Lassig, such is common for people giving up cannabis use. In addition, Dr Lassig noted (as further corroboration to Ms Fisher’s evidence) that his patient sought treatment because she wanted a “major lifestyle change”.

26.Ms Fisher called evidence from a number of her support persons; including Mrs Aleathea Kelly, a mother who is actively involved within her community, and to whom has been a close friend to Ms Fisher for several years. Ms Fisher acknowledged that Mrs Kelly was a lot wiser than her and helped Ms Fisher give up marijuana.

27.Mrs Kelly gave evidence before the Tribunal as well as providing a statement. She indicated in her evidence that she knew of Ms Fisher when their sons played for the local soccer team. Although somewhat intimidated by Ms Fisher at first, Mrs Kelly soon became friends and realised how committed Ms Fisher was to knowing everyone and everything about the team her son was a part of. As the soccer season grew, so too did their friendship, not only with each other but also between their respective children as they shared so many of the same interests.

28.Mrs Kelly is in constant contact with Ms Fisher. She describes Ms Fisher’s attitude to children as “fantastic”. She commented that Ms Fisher had more attitude than anyone else she knew. She also knew Ms Fisher was strict when it came to ensuring that her children remained studious. She acknowledged that her children adored Ms Fisher whom she described as like an aunt to her children. Mrs Kelly indicated that she never witnessed Ms Fisher smoking marijuana.

29.In terms of presentation before and after cannabis use, Mrs Kelly noted that Ms Fisher is now more in control of everything in her life – working, looking after children and leading an active lifestyle. She indicated that Ms Fisher deals with stress very well. Upon questioning by the Tribunal, Mrs Kelly had no concerns that Ms Fisher would relapse.

30.Mrs Kelly noted that when Ms Fisher made a decision, “that was it”. She attributed Ms Fisher’s marriage separation as an example. Mrs Kelly had no concerns about children in the care of Ms Fisher. She has seen Ms Fisher with babies and young adults and in her view believes that Ms Fisher deals appropriately with the children of all ages and maturity. Mrs Kelly provided evidence that Ms Fisher’s house is clean and tidy, her children are perfectly dressed, organised and well cared for by Ms Fisher. Mrs Kelly noted that after quitting marijuana, Ms Fisher is less stressed in her life and has more energy to spend time doing things she loves, namely being involved as much as she can with her children.

31.The President of the Tibros Netball Club, Mrs Mary-Lou Dodgson-Oliver, provided evidence before the Tribunal and supported Ms Fisher’s application. She described the Netball Club as being “extremely lucky to have Ms Fisher”. She has known Ms Fisher for the past five years and worked closely with her as one of the netball coaches for the past year. She described Ms Fisher as being a very experienced, knowledgeable netball coach. She stated that Ms Fisher was able to establish an extremely good rapport with her team in being able to earn their respect and trust. One of the major reasons for the enthusiasm and camaraderie with the Club was due to Ms Fisher. Mrs Dodgson-Oliver viewed Ms Fisher “as being the kind of volunteer every club needs”. Mrs Dodgson-Oliver was aware of Ms Fisher’s past problems; yet felt that the children associated with the club were not in danger because Ms Fisher was a positive individual and influence on the girls.

32.Another witness called on behalf of Ms Fisher was Michele Tipper. Mrs Tipper is the Tibros Netball Club Treasurer. Mrs Tipper only recently became aware of Ms Fisher’s marijuana past but in her view did not alter her opinion of Ms Fisher as being a positive and valuable influence within the community. Mrs Tipper has seen Ms Fisher in largely a netball situation through training children and commented that she was “always being in control”. She noted that Ms Fisher was strict in the way that she wanted children to behave and respect fellow players.

33.The records produced by Queensland Corrective Services indicated that Ms Fisher successfully performed her period of probation. It records, inter alia, that Ms Fisher “has successfully undergone counselling as directed and ended her problematic drug usage as a result”. The records reveal that Ms Fisher complied consistently with the conditions of her order, had a good reporting history and a positive attitude.

34.There is no reason to doubt the veracity of the evidence presented before the Tribunal during the hearing.

35.Mr Woodberry for the Commissioner commended Ms Fisher for turning her life around and appearing to have made a success of it. He submitted that the weight to be given to the evidence of the persons from the Tibros Netball Club ought be lesser because there might have been an ulterior basis for wanting to keep Ms Fisher associated with the Club. That was not however, as he submitted, due to credibility (or lack thereof). The Tribunal accepts this proposition. He also indicated that the evidence of Mrs Kelly should be given more weight as she has seen Ms Fisher in times of stress and has not resorted to cannabis use.

36.In terms of risk factors, Mr Woodberry submitted that there was no evidence from a psychologist in relation to the treatment sought. In fairness though, he submitted (and properly so) that there was corroboration of Ms Fisher’s own evidence - for instance the weight gain issue was an example. He submitted, that the records produced by Queensland Corrective Services indicated that Ms Fisher initially resorted to maybe “one or two usages” whilst submitting to probation, but otherwise conceded that urine test analysis performed demonstrated that Ms Fisher remained marijuana free.

37.Insofar as protective factors were concerned, Mr Woodberry indicated that, provided all of the witnesses in Ms Fisher’s support network (including her partner who was anti-drugs) provided strong support for Ms Fisher.  There were strong motivating factors also as a protective factor and that included the possible loss of her children.  He indicated that Ms Fisher appeared to be keeping herself busy.  In addition, he submitted that the urine testing analysis had been completed albeit during the probation period. 

38.In reply Ms Fisher submitted that the representatives from the Tibros Netball Club were high standing officials and were not going to put the lives of its members at risk if they considered her a danger to the children of the Club. Ms Fisher indicated that there was no police attention given to her after the probation period and as such an inference should be drawn that the police would have, had she still continued to use cannabis.

Consideration

39.Ms Fisher’s criminal history is by no means large, but nonetheless criminal convictions have been recorded against Ms Fisher up until August 2007. These convictions are convictions for offences other than “serious offences” as deemed by the Act. A 12 month probation order was made for Ms Fisher’s last recorded offences. Ms Fisher complied with the requirements of probation. Prior to that conviction, she received a 12 month probation order in May 2006 following another similar conviction; namely possession of a dangerous drug. These were the only probation orders Ms Fisher received for her recorded convictions. For the remaining convictions (namely common assault (x 1), behaviour in a disorderly manner (x 1) and possession of dangerous drugs (x 3)), small fines were imposed.

40.The Tribunal, unlike the Commissioner, has had the benefit of receiving evidence from Ms Fisher in support of her application for a positive notice. This is an important consideration because of the discretion conferred by ss. 102A(2)(b) on the decision maker to take into account other matters it sees fit.

41.The benefit of the evidence presented to the Tribunal demonstrates the significant insight Ms Fisher has in relation to her past criminal history. Pursuant to ss. 102(3) and (4) of the Act, the Commission must issue a positive notice unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice to Ms Fisher.

42.The evidence presented at the hearing demonstrate this is not an exceptional case in which a positive notice ought not be issued – that is to say, a positive notice should be issued. The evidence given by and on behalf of Ms Fisher satisfy the Tribunal that Ms Fisher has a high degree of insight into her previous offending behaviour and the circumstances do not warrant departure from the issue of a positive notice, notwithstanding Ms Fisher’s convictions for offences deemed not “serious”.

43.In taking into consideration all of the relevant evidence before it, the Tribunal is not satisfied that this is an exceptional  case in which it would not be in the best interests of the children to issue a positive notice to Ms Fisher. The Tribunal is satisfied that Ms Fisher does not present as an unacceptable risk to children nor that hers is an exceptional case in which it would not be in the best interests of children for her to be issued a blue card. Ms Fisher demonstrates insight and has sought help to address the issues. There is no evidence before the Tribunal to demonstrate that she has not positively addressed issues of reoffending and drug use.

44.In those circumstances, a positive notice should be issued to Ms Fisher.