Lewis v Director-General, Department of Justice and Attorney-General
[2017] QCAT 314
•15 September 2017
CITATION: | Lewis v Director-General, Department of Justice and Attorney-General [2017] QCAT 314 |
PARTIES: | Daniel Lewis |
| v | |
| Director-General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML005-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 25 July 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 15 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Director-General, Department of Justice and Attorney-General made on 15 December 2016 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children(Risk Management and Screening) Act 2000 (Qld) is set aside. 2. No ‘exceptional case’ exists. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where offences relating to drug use – where lengthy history of drug use – where rehabilitation continuing – whether an ‘exceptional case’ exists to justify a departure from the general rule that a positive notice must be issued Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221 |
APPEARANCES: | |
APPLICANT: | Daniel Lewis |
RESPONDENT: | Director-General, Department of Justice and Attorney-General |
REPRESENTATIVES: | |
APPLICANT: | Mr Lewis appeared in person |
RESPONDENT: | represented by Mr McCowie, Legal Officer of the Department |
REASONS FOR DECISION
Mr Lewis is studying a Diploma in Community Services. His interest in the area results from his own experiences and he would like to make a long-term career assisting those struggling with day-to-day living.
He applied for a Blue Card to engage in the practical components of the course. On 15 December 2016, Blue Card Services, after consideration of his criminal history, issued a negative notice.
Mr Lewis seeks a review of that decision at this Tribunal.
The Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) governs the process for screening those who wish to work with children. The object of the Act is to promote and protect the rights, well-being and interests of children. The guiding principle of the Act is that the welfare and best interest of the child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s well-being.[1]
[1]The Act, s 5, s 6.
Mr Lewis’ application is to be determined by merits review. This means the Tribunal, standing in the shoes of the original decision maker, must arrive at the correct or preferable decision[2] based on all the information available at the time the decision is made.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
Mr Lewis’ history does not disclose a serious or disqualifying offence, as defined in the Act, and therefore he must be issued with a positive notice unless it is an exceptional case such that it would not be in the best interests of children for a positive notice to issue.[3]
[3]The Act, s 221.
It is my responsibility to determine whether an ’exceptional case’ exists. It is well accepted that what constitutes an exceptional case is a question of fact and degree and is a matter of discretion for the decision maker.[4]
[4]Kent and Wilson [2000] VSC 98, [29].
The Act mandates the factors that must be considered when making this determination. These factors include the nature of any offence or charge, when it occurred, its relevance to child related employment, any court imposed penalty and anything else relating to the commission of the offence that may reasonably be considered relevant to the assessment. This list is not exhaustive and does not prevent consideration of facts which might lead to a comprehensive understanding of the circumstances before determining whether an ‘exceptional case’ exists.
Criminal History
Mr Lewis' early offences, from 1997 and 2000, involved riotous behaviour and unlawfully climbing a building. He was fined $100 on the first occasion and $600 on the second. I have not given weight to these offences because they occurred nearly 20 years ago, however it is of interest to note that Mr Lewis said they occurred while he was under the effect of alcohol rather than drugs.
In 2003, Mr Lewis was convicted of possessing dangerous drugs specified in Schedule 1 and 3 and sentenced to imprisonment for two years, wholly suspended for three years. He says the offences occurred in April 2002 when the police pulled over a car in which he was a passenger and a quantity of powder was found in the car.
A further charge in 2003, for possessing a dangerous drug, resulted in a conviction and a fine of $300. Mr Lewis was also convicted and fined $700 for assaults occasioning bodily harm occurring about June 2002 and he was ordered to pay $2,500 compensation.
A charge of common assault was discharged absolutely in 2005 and there is a conviction and fine of $150 in 2005 for breach of bail condition.
No further offences occurred until 2014 when Mr Lewis faced a charge of stealing and charges of possession of dangerous drugs, pipes and a Schedule 1 drug of quantities exceeding Schedule 3 but less than Schedule 4. He said he had a disagreement with the manager of the unit block he was living in over electricity use and this was the basis of the stealing charge. Police raided his unit and found the drugs in the unit. The drugs were for personal use. No conviction was recorded for these offences and Mr Lewis was given probation for two years and 200 hours community service.
Offences in 2015 and 2016 related to breach of the 2014 probation order and contravening a direction.
Mr Lewis’ life circumstances
Mr Lewis said he came from a stable and loving home environment, well supported by his parents. The family moved to the Gold Coast when he was 11 years old. He was a very good sportsman and was ‘put on a pedestal’ for his sporting talent. He did not like this attention and he withdrew from sports. By the age of 15 he was using drugs, both marijuana and hard drugs. He left school at 16.5 years and commenced a trade. His family knew about his drug use as he had been open with them since he was 15 years old.
He continued with his life of working, fishing, surfing and taking drugs. It was during this time his 2005 offence occurred. He did not seek any professional assistance to stop his drug use because he did not think he had a problem. By this time, he was nearly 30 years of age. He withdrew from his family because they were expressing concern about his ongoing drug use.
In 2008, he met a woman, married and they had a child. He found it difficult to settle down. His wife did not take drugs and although she was a great inspiration to him, he continued taking drugs.
2013 was an extremely stressful time for Mr Lewis and his wife. They had a second child who was premature and could not be taken home from hospital for 11 weeks. Mr Lewis states his job was stressful and his marriage was failing. Mr Lewis and his wife separated shortly after the birth of their second child. He said he was emotionally overwhelmed and did not have the tools to deal with it. He explains the separation by saying ‘My wife wanted what was best for her family and what I was doing wasn’t best for her family’. His drug taking increased.
Shortly after the separation the 2014 offences occurred. Mr Lewis finally accepted he needed help and he had to get clean for himself and to be there for his children. He entered a detoxification unit and then entered a residential rehabilitation clinic for six months. The 2015 and 2016 breach of probation offences occurred because he could not get out of the clinic to meet his community service obligations. He returned to the Magistrate’s Court, was resentenced on his original offence and given probation for 12 months. He did not have to complete his community service order.
Mr Lewis is no longer under court supervision, but says he had a good relationship with his Probation Officer and the court supervision helped him to stay focussed on his recovery. It was however ‘freeing to be able to leave that behind’.
Mr Lewis spoke at length about his rehabilitation regime. It was very challenging. He had the assistance of Mr Adsett, a psychologist, and engaged in cognitive behaviour therapy. He participated in many group sessions and started to work through the 12 Step program developed to assist addicts maintain abstinence. He is now at about Step 4. He can return to see Mr Adsett whenever he feels he needs to. He still attends Narcotics Anonymous meetings about 4 times a week and believes this will be a part of his life for the rest of his life. The meetings are an opportunity to both talk about his own experiences and to assist others.
Mr Lewis was able to list the benefits of his treatment. He said he has developed an awareness of his thoughts, he has learnt to accept this separation from his wife, rather than fighting it, he has been able to break away from his previous lifestyle, he has been taught to better understand his feelings, and how to communicate more effectively. This has made him a lot calmer. He can’t remember the last time he was angry and could not cope with it.
When asked to describe a time he has put this new awareness into practice he said recently he was offered marijuana, but said ‘no’. It was an important moment for him because he realised he did not need it anymore. He further described a difficult situation where he was able to control his emotions when meeting with his ex-wife. He has dealt with the stress of these proceedings before the Tribunal by having no expectation about the outcome. He is prepared to accept whatever may result.
Mr Lewis expressed remorse for the events in his criminal record and his past behaviour and showed an insight into the impact of his behaviour on others, particularly his family. He talked about the effect of drugs on the broader community and how he wants to be part of a ‘community change’ away from drugs. He wants to be a sponsor for other recovering addicts, ‘to keep what I have gained by giving it away.’
I had the opportunity to speak with four witnesses. Two were long-time friends and spoke about the changes they have seen since Mr Lewis stopped taking drugs. They spoke about his great relationship with the children in their lives and his. Both of these witnesses denied they saw Mr Lewis as a violent man, they said it was not a part of his behaviour.
Two witnesses have known Mr Lewis since he commenced his involvement with the Narcotics Anonymous program. They spoke about Mr Lewis’ commitment to the program, the longevity of his commitment, his prospects for not returning to drug use, the way he interacts with others and how he is keen to give his support to people most in need. They both emphasised that people who want to recover from an addiction need to change their attitude and accept responsibility for their actions and they thought Mr Lewis understood this.
Mr Lewis’ psychologist, Mr Adsett, was not available to give evidence but I have given some weight to his two reports because they are consistent with the evidence from other witnesses and are very clear about the progress Mr Lewis has made since 2014.
Protective and risk factors
In order to establish if an exceptional case exists such that it would not be in the best interests of children for a positive notice to issue, it is useful to identify the risk and protective factors arising from the circumstances of the case.[5]
[5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The protective factors, as identified by the Director-General, include:
a)Mr Lewis voluntarily sought the assistance of the Salvation Army detoxification unit. He completed a 6-month residential stay at Goldbridge Rehabilitation Clinic.
b)He has regularly attended, and plans to continue to attend, Narcotics Anonymous meetings.
c)He has developed insight and understands he needs to make a lifelong commitment to remaining substance free.
d)He is in stable employment.
e)He has disassociated from old friends who use drugs.
f)Mr Lewis has the ongoing support of his family and friends.
g)He is seeking to work in social and community services, showing a commitment to others.
h)He has taken substantial steps to turn his life around and witnesses commented on the improvement in his character.
The risk factors include:
a)Mr Lewis has a long history of drug use.
b)The criminal charges indicate a use of hard drugs.
c)Mr Lewis escalates his use of drugs when he is under stress.
d)The last drug charges, indicating use in November 2014, are recent.
e)Mr Lewis’ period of abstinence is less than two years.
Consideration and Decision
Drugs in the community impact adversely on the best interests of children simply by the impact they have on society as a whole. Drug use often leads to the children of drug users having physical and emotional unmet needs. Being under the influence of drugs, or needing drugs, is likely to affect a person’s judgement and ability to protect children. A person at risk of drug use is often considered to present an exceptional case, which means they should not be issued a positive notice and allowed to work in a regulated child environment.
The risk factors identified in Mr Lewis’ case could be considered sufficient to establish an exceptional case. However, for reasons I will now explain, I have decided that Mr Lewis does not present an exceptional case such that it would not be in the best interests of children for him to be issued a positive notice.
Mr Lewis states that his drug use did not result from childhood trauma resulting in psychological injury. There were no drugs in his home environment. He was exposed to drugs at 15 and they seemed to him to be a better option than standing out from the crowd as an exceptional sportsman.
His drug use became a way of life and it appears he had no reason to give them up. His marriage and the birth of his children he described as a stressful time. Rather than trying to seek help to give up drugs he took more drugs. This meant his ex-wife, whom he describes with respect, made a decision in the best interests of his two children and left him. He offered no criticism of this decision.
It was after his marriage breakup that he was found to have a quantity of drugs in his home and he once again faced the Court. I have not been provided with the sentencing remarks but the penalty of 2 years Probation and 200 hours Community Service, with no conviction recorded, suggests the Magistrate did not see him as a risk to the community.
Then in 2015, Mr Lewis booked himself into detoxification and rehabilitation because that was what he wanted to do. He was ready to stop drug use and sought help to achieve this. He states he will not return to it.
This statement is supported by the evidence of the witnesses.
There are written references from Mr Lewis’ mother and sister. Neither gave oral evidence but they speak about a very happy and adventurous young boy who struggled with addiction from adolescence, all the while maintaining contact with his family.
They speak of his ability to connect with the children of their family and friends. They comment on his relationship with his own children, and how well he handled being the stay-at-home Dad for his oldest child for two years. They sound relieved and proud that Mr Lewis has finally chosen to change the direction of his life.
Ms Cutting, a family friend of 15 years, gave a statement and oral evidence. She says she sees Mr Lewis at the family home of his parents and they go fishing with their children. She says her youngest child has special needs and Mr Lewis’ patience and caring nature when around him is very comforting to observe. She comments ‘the guilt of having a disease in addiction took its toll on him and his family, both suffering a great deal’. She also expresses a ‘certain proudness watching my friend come to terms with his past actions’. She believes Mr Lewis has shown ‘an honest will power and a determination to improve himself and the environment around him’.
Mr Adsett, the psychologist employed by Goldbridge, provided two reports for Mr Lewis. He said he was asked to see Mr Lewis in late 2015 because he was having trouble fitting into the Narcotics Anonymous program. He saw Mr Lewis fortnightly when he was a resident at the facility from 18 November 2015 until 6 April 2016 and then monthly after his release until December 2016.
Mr Adsett states that when Mr Lewis arrived he was lacking in self-awareness and humility. However, he had a ‘high internal locus of control,’ and it was through this character trait that he chose to stop using drugs and to change some negative aspects of his behaviour. He said Mr Lewis accepted he had not grown emotionally since the age of 15. This insight was pivotal to his future development. It meant ‘he was able to tolerate emotional pain without avoiding it through the use of substances’. He slowly began to mature.
Mr Adsett states the changes made by Mr Lewis were significant. He identified increase in self-awareness, increase in humility, less emotionally reactive and more understanding of his need of support from others. He said he saw these changes in Mr Lewis in a practical way when he was able to accept his marriage breakdown without relapsing into substance use, and he dealt with the disappointment of his blue card application refusal with an increased level of acceptance.
Mr Adsett said he read the reasons for declining the blue card application thoroughly and nothing in the document was a surprise to him because Mr Lewis had disclosed it all to him previously. He said this frank disclosure was a credit to Mr Lewis. In this knowledge, Mr Adsett supported Mr Lewis’ appeal to be given a blue card.
Mr Regan, psychotherapist who has worked in the treatment of substance abuse and addiction for over 25 years, has known Mr Lewis since his admission to Goldbridge and he says he is satisfied Mr Lewis is motivated to pursue a new way of life. He say ‘while continuing his personal studies he has maintained his focus on living life drug free, connecting with his family and also supporting others’. He says Mr Lewis ‘has demonstrated a commitment to the necessary changes to ensure ongoing recovery’.
Mr Peterson described himself as a ‘recovered member of a 12 step fellowship who has been near to 17 years clean’. He says while it is difficult to pin down who will take responsibility for their own life, there are few who have stayed the distance the way Mr Lewis has. He believes that at nearly 2 years clean he has good prospects for remaining drug free. He says this is because Mr Lewis is attending 3 - 4 meetings a week and has committed himself to ‘service’ by helping others through their recovery.
I have given great weight to the identified risk factors, in particular the recent addictive behaviour and evidence that Mr Lewis has used drugs to deal with stress. However, I have formed the view Mr Lewis has taking the professional help necessary to understand his addiction, has developed the necessary insight and strategies to avoid or manage risk environments and has committed to continuing in the 12 Step program which he understands is a life long journey. He has close family and friends to turn to if he needs support, and has found a meaning to his life, as evidenced by his study, to help others who are experiencing addiction. He is in the early stages of a new relationship with a person who is not in recovery and is enjoying his time with his own children.
The Act refers to ‘the development and implementation of risk management strategies’.[6] It does not call, unrealistically, for the elimination of risk. In this case the risk behaviour was drug use and Mr Lewis has provided evidence of the steps he has taken to minimise and manage that risk into the future. I am satisfied the evidence does not establish Mr Lewis would pose a risk to children greater than the risk posed by other persons in the community at large.
[6]The Act, s 5(a).
Having considered the totality of the circumstances, I find that an ‘exceptional case’, such that it would not be in the best interests of children for a positive notice to issue, does not exist.
0