Mt v Commissioner for Children and Young People and Child Guardian
[2011] QCAT 727
•14 December 2011
| CITATION: | MT v Commission for Children and Young People and Child Guardian [2011] QCAT 727 |
| PARTIES: | MT (Applicant) |
| v | |
| Commission for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML153-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 30 November and 1 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Presiding Member Pam Goodman, Member |
| DELIVERED ON: | 14 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner to issue MT with a negative notice is set aside. 2. The Tribunal directs that a positive notice be issued to the applicant as soon as is practicable, but in any event no more than 14 days from the receipt of a new application from the applicant. 3. That the publication of any material before the Tribunal that could identify MT, his children, his partner or her foster child is prohibited. |
| CATCHWORDS: | Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – where applicant has extensive criminal and drug taking history – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional Child Protection Act 1999, s 9 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MT represented himself |
| RESPONDENT: | Commission for Children and Young People and Child Guardian was represented by A Noble |
REASONS FOR DECISION
BACKGROUND
The applicant, MT is in a relationship with HD, who is the foster mother of SS. HD and the applicant are engaged and plan to live together with SS as a family unit which is to include MT’s twin daughters when they have contact with him. MT’s daughters otherwise live with their mother.
In order to live in the home with SS, MT is required to hold a blue card and it is for this reason he applied to the Commissioner for Children and Young People and Child Guardian, the respondent, for a blue card.
On 23 August 2011 the respondent issued the applicant with a negative notice and the blue card application was refused. As a consequence, the applicant is unable to be a member of HD’s household while SS lives with her. Arrangements have been put in place, pending this review, for SS to stay with HD’s mother when MT stays overnight in the home with HD.
On 31 August 2011 MT applied to the Tribunal for a review of the decision to refuse him a blue card.
RELEVANT LAW
The Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) confers jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) to review decisions of the Commissioner.
Section 24 of the QCAT Act provides that, on review, the Tribunal may:
(a)Confirm or amend the decision; or
(b)Set aside the decision and substitute its own decision; or
(c)Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
Section 19 of the QCAT Act provides:
In exercising its review jurisdiction, the Tribunal—
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
The Tribunal stands in the shoes of the original decision maker and may consider all material available to the original decision maker, and also new evidence now available. The Tribunal hears and decides reviews by way of a fresh hearing on the merits to produce the correct and preferable decision.
As part of its decision making process, the Commissioner obtained a police criminal history check regarding the applicant. The history shows convictions for various matters including one charge of “possessing a dangerous drug” on 19 October 2009 and four other convictions for “possession of prohibited drugs” between 1986 and 1997. It is agreed that MT pleaded guilty to the 2009 charge.
It is noted that no conviction was recorded in relation to the 2009 incident. Pursuant to schedule 7 of the CCYPCG Act a “conviction” is defined as a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.
The offences for which the applicant was convicted are not serious offences as defined in schedules 2 and 3 of the CCYPCG Act. Accordingly, s 221 of the CCYPCG Act provides that a positive notice must be issued unless the applicant’s case is an exceptional case in which it would not be in the best interest of children to issue a positive notice. A positive notice would mean that a blue card would be issued to the applicant. The relevant provisions are outlined below:
Section 221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1) Subject to subsection (2), the commissioner must issue a positive notice to the person if—
(a) the commissioner is not aware of any police information or disciplinary information about the person; or
(b) the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i) investigative information;
(ii) disciplinary information;
(iii) a charge for an offence other than a disqualifying offence;
(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
(c) the commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person.
In determining whether the applicant’s case is exceptional, the Tribunal must have regard to the factors listed in s 226 of the CCYPCG Act. That section is set out below:
226 Deciding exceptional case if conviction or charge
(1) This section applies if the commissioner—
(a) is deciding whether or not there is an exceptional case for the person; and
(b) is aware that the person has been convicted of, or charged with, an offence.
(2) The commissioner must have regard to the following—
(a) in relation to the commission, or alleged commission, of an offence by the person—
(i) whether it is a conviction or a charge; and
(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii) when the offence was committed or is alleged to have been committed; and
(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v) 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;
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person’s mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 or 338;
(e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
The CCYPCG Act does not define the term “exceptional case”. The law is now well established that the determination of an exceptional case is a matter of discretion depending on the individual circumstances of the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated:
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning “unusual, special, out of the ordinary course”. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”
In Re OAA (2006) QCST 14, the former Childrens Services Tribunal found that, in determining an “exceptional case”, consideration is to be given as to whether the applicant presents an unacceptable risk of harm to the children of Queensland.
The focus of the CCYPCG Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999.
Section 6 of the CCYPCG Act provides that the Act is to be administered under the principle that the welfare and best interests of a child are paramount. Section 155 further provides that:
“the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”
Tribunal must be satisfied as to these matters on the balance of probabilities. Neither party bears the onus of proof.
Further considerations of the law – The 2009 incident
At the hearing the Tribunal received evidence about an incident which occurred in 2009, the details of which are discussed below. As a result of the incident the applicant was charged with, and pleaded guilty to, possessing a dangerous drug. On the basis of that conviction the Tribunal accepts that the applicant was in possession of a dangerous drug on 25 September 2009.
The Commissioner submits that the Tribunal should go further, and is bound, by virtue of the guilty plea, to accept the description of events contained in the Court brief prepared by police for use in relation to the charge.
The Commissioner relies on a number of precedents, including Minister for Immigration and Ethnic Affairs v Gungor (1982) FCA 99; the 2006 decision of the Children’s Services Tribunal in Re FAA; Re Minister of Immigration and Ethnic Affairs v Agazio Daniele (1981) FCA 212, Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 and Minister for Immigration & Multicultural Affairs v SRT (1999) FCR 234.
The Tribunal rejects the submission that it is bound to accept the description of events contained in the Court brief and to ignore any alternative explanation provided by the applicant in these proceedings. The case law does not support the respondent’s submissions.
The Tribunal notes that in Gungor’s case the Court states “While it stands, the conviction must be conclusive....When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed”. In Re FAA the Tribunal states “The Tribunal is mindful that in taking a conviction into account it must accept that decision on conviction as conclusive and not go behind it, seek to retry the charge leading to that conviction, or proceed on a basis inconsistent with that conviction...” This Tribunal accepts this.
The Tribunal has had particular regard to Agazio Daniele where the Court stated “There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make it own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.” This Tribunal has followed this guidance.
The respondent urged the Tribunal to have regard to Pochi where it was found “...at least the essential facts found by the sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence”. At the hearing of this matter, the respondent conceded that no evidence of the “essential facts found by the sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based” was available to the Tribunal. It necessarily follows that we cannot take them into account. It does not necessarily follow that we are instead bound to accept the Court brief as an unchallenged statement of fact.
As noted above, the Tribunal accepts that the applicant was in possession of a dangerous drug on 25 September 2009. That is not in dispute. There is some dispute as to whether or not the applicant was intending to use the drug. The differing versions of events are discussed elsewhere in this decision.
The Tribunal finds that it is not bound to accept the version of events contained in the Court brief as accurate in all respects and to exclude all other evidence on the matter. The Court brief is one piece of evidence available to the Tribunal. There is other evidence also available. The Tribunal is able to make its own assessment of the nature and gravity of the applicant’s conduct on that day having regard to all the evidence available to it.
The undisputed relevant facts
The applicant has a long history of drug use and addiction. His criminal convictions include motor vehicle offences, theft, and possession of heroin. There is also a conviction for dishonestly claiming funds from Centrelink. Most of his convictions were in the context of drug abuse and addiction. These offences occurred between 1986 and 1999, although the Centrelink matter was only dealt with by the Courts in 2010.
The applicant’s most recent conviction was in 2009 for possessing a dangerous drug. It is undisputed that the applicant was on that occasion in his car in the company of another person. When police approached the car, they found two syringes containing heroin and an empty syringe on the floor. The other occupant of the car was holding one syringe and the other filled syringe was found in the centre console between the two front seats. The applicant knew that the syringes contained heroin and had been present when it was mixed and the syringes filled in his car.
For the last approximately 6 years the applicant has been employed on various mine sites and has been subjected to a number of drug and alcohol screening tests and ongoing random drug tests, including, most recently, two tests in late November 2011. He has never failed a drug test conducted by an employer.
Since early 2010 the applicant has been in a relationship with HD, a person who has never had any involvement in the use of drugs.
There is no evidence of any crimes or other anti-social behaviour against or involving children. Family friends describe a happy and harmonious home when they visit.
Other evidence
Oral evidence provided to the Tribunal is summarised below so far as the Tribunal has had regard to the evidence in making its determination.
The applicant’s evidence
The applicant provided a graphic history of his drug addiction. He stated that:
· As a young child he was isolated and lonely, growing up with an alcoholic father and a mother with paranoid schizophrenia. He was subjected to physical, emotional and sexual abuse by each of his parents;
· He began using drugs as an 11 year old boy when introduced to the drug culture by a school friend;
· He began using amphetamines when about 12 years of age when a “father figure” injected him. At around the same time he began making money by selling drugs at school and delivering drugs for people he was associating with;
· He was a heavy user of amphetamines until he began using heroin at approximately 15 years of age;
· At 16 years of age he was admitted to a psychiatric hospital for treatment on a drug withdrawal programme. He received medication and was introduced to Narcotics Anonymous (NA). He established a support network and stayed away from drugs for long enough to finish school and gain an apprenticeship as a chef.
· While working as a chef he began using amphetamines and became addicted to speed. He began using heroin to bring himself “down”. He continued to use heroin heavily until he was once again admitted to rehabilitation at the age of 20. He spent approximately 46 weeks in rehabilitation with the Salvation Army and when he left he stayed clean, got a full time job and lived without drugs for a period.
· At 23 years of age he formed a relationship with a person (J) who was to become his long term partner. J was a heroin addict and the applicant resumed taking drugs. The applicant described the lifestyle led by him and his former partner as a “junkie” lifestyle involving criminal activity including theft from those who trusted him.
· When his mother died, the applicant and his partner used his inheritance to buy a home and move away from Sydney. They got on the methadone programme and had twin girls in 1999. They had always wanted children and when the children were born the applicant and his then partner left the methadone programme and have been clean from drugs ever since.
· The applicant ran an earthmoving business in NSW for a period and moved back to Queensland in about 2005 after he and J separated. Since that time he has been employed at various mine sites on a “fly in / fly out” basis.
· In early 2010 he met HD, to whom he is now engaged. They have bought a house together and have formed a family unit with HD’s foster child SS. The applicant’s children stay in the home for a week at a time when he is home from his work.
· Since meeting HD he has stopped contact with people that he has known through his drug use. His only contact with drug users is at NA meetings, which he attends from time to time. He is also involved in some informal support networks on his work site. He is a “connector” for a group called “mates in construction” and offers support to workmates who are able to chat with him and he refers them for help if they need it.
· He now spends his time away from work with his family unit – watching television, helping with homework, going to parks. He has walked away from his previous lifestyle and friends and “started life again”.
· He is confident that he will not return to drug use. He has the support of HD and has the tools necessary to stop him returning to an addict’s lifestyle.
· He deals each day with his drug addiction and is proud that he has been able to put drug use behind him.
· He does not want his children to experience what he has experienced because of drugs. His lifestyle while using drugs was “crap” and he would never allow that to happen to his children, or to SS, or to wish it on any child.
· On 25 September 2009, he was driving an acquaintance to a rehabilitation centre when she stated that she wanted one last shot before she went in. She prepared two syringes – one to have in the car and another to take with her into rehabilitation – but was intercepted by the police just as she finished drawing up the syringes. He did not intend to use any of the heroin himself, and did not tell the police that he intended to despite the police brief to the Court. The police statement omits to mention that the other occupant of his car was carrying around a large paper bag containing many syringes, some used and some unused.
· Since lodging his application for a blue card, and particularly since receiving a negative notice, he has been placed under a high degree of scrutiny and stress. This would have formerly been enough to trigger a relapse into drug use but he has not used drugs because he is able to use the tools he has learnt over a long period of rehabilitation and because of his strong desire not to return to his previous lifestyle.
HD’s evidence
HD provided evidence that:
· she is in a committed relationship with the applicant and they are planning to marry next year;
· her primary responsibility is to SS and if she ever suspects that the applicant has returned to drug use she will immediately end her relationship with him;
· she is employed by Queensland Health and has spoken to co-workers about how she might identify drug use by the applicant, and what support is available to him if he is experiencing difficulty staying off drugs;
· she and the applicant have formed a “normal family unit” and when the applicant is home from the mines they spend family time together rather than actively socialising;
· the applicant now has no association with drugs or with drug users;
· their lifestyle is very routine in order to meet the particular needs of SS and to maintain a normal family life. When home from work the applicant doesn’t go out with his mates but spends all of his time with his family, which includes her, SS, and his twin children;
· she hasn’t seen the applicant angry or aggressive.
HD’s mother JJ provided evidence
JJ advised the Tribunal that she was aware that the applicant had a criminal history and was shocked when HD formed a relationship with him. She stated:
· she has now known the applicant for 20 months and has not seen him behaving aggressively and hasn’t seen anything in his behaviour to make her concerned;
· if she believed that the applicant was using drugs she would immediately remove SS from the home.
JJ agreed with the Tribunal that she remained “on alert” and stated that she has no current concerns regarding the applicant’s relationship with HD.
Dr David Helliwell’s evidence
Dr Helliwell has been a specialist in addiction medicine since 2000. He advised the Tribunal that:
·He has known the applicant for 19 years and had noted that everything changed for the applicant when his children were born;
·Anyone with a history of drug dependency is at risk of relapse into further drug use, although often he sees patients with a “career” of drug use which passes;
·The applicant’s “trajectory of recovery” is very good and he “ticks all the boxes” prognostically;
·Indicators that the applicant is less likely to relapse include being in gainful employment and having peers who don’t use drugs;
·The applicant has done extremely well and it is “very, very, very unlikely that he would spontaneously relapse”;
·If the applicant was going to relapse, now would be the time, given the stress he’s been under with this application;
·The applicant now has a skill set on board and has picked up life activities that will keep him clean. For example, he doesn’t associate with drug users and has structure around his employment with ongoing drug testing at work;
·Regular attendance at NA meetings would not be recommended in the applicant’s case because “this man has his own momentum in the recovery process”;
·It is unlikely that the applicant could use drugs occasionally – if he was to use drugs again he would very quickly become dependent. Once dependent he would be unable to abstain from drug use for 72 hours and so urine tests conducted at his work site would detect his drug use;
·If the applicant was to relapse into drug use he would deteriorate very quickly and the use would be detected as his work performance would fall off immediately. It is very, very unlikely that a relapse would remain unnoticed by his partner;
·He has very few patients that he would stick his neck out for, and he would not be speaking to the Tribunal if he was not confident in the applicant’s ability to stay off drugs.
WM
WM is the site safety officer at the applicant’s current work site. She advised the Tribunal that:
· if an employee is suspected of being under the influence of drugs or alcohol they are legislatively required to be tested; and
· the applicant is subject to random drug tests at work. He has never failed a drug test.
Kristie Patten, Child Safety Officer, Department of Communities
Ms Patten was involved in developing two safety plans intended to ensure SS’s safety. The original safety plan was drafted to ensure that SS was safe from exposure to drugs. The current safety plan provides that SS is not to be left in the sole care of the applicant and that the applicant must not stay overnight in the home when SS is present. Ms Patten advised that:
· the original child safety plan before the Tribunal had been drafted after the applicant was asked to provide a statement to the respondent regarding his blue card application;
· the current safety plan was developed in response to the negative notice that had been issued to the applicant;
· no concerns regarding the applicant’s appropriateness to care for SS had been raised prior to this process, although his criminal history was known to her department;
· she is unaware of any breaches of the safety plan and has not identified any safety concerns regarding the applicant through discussions with other stakeholders or while visiting the home;
· HD has advised the Department that she will end her relationship with the applicant if he relapses into drug use.
Jeril Thomas, foster care worker, Pathways
Jeril is a social worker with a Diploma in Community and Welfare work. He advised that:
· He has known the applicant since June 2010 and has met him 7-8 times since then;
· he has observed positive interaction between the applicant and SS;
· the applicant was present at a placement meeting in September 2010 when the applicant advocated strongly that SS’s cultural needs were not being supported and that the issue needed to be addressed;
· He is unaware of any breaches of the safety plans.
WRITTEN EVIDENCE
The Tribunal was provided with a document headed Queensland Police Service Court Brief. The document is unsigned and dated 1 October 2009. It describes events which are said to have occurred on 25 September 2009. The respondent submits that the Magistrate considering the most recent charge against the applicant had regard to the document. That submission was not challenged by respondent. The document describes police officers approaching a car in which the applicant and a passenger sat, and finding two syringes filled with heroin and another empty syringe. The document records “Defendant was questioned and stated that the syringe contained Heroin that he and XXXXX XX were about to use”.
THE ISSUE FOR THE TRIBUNAL
The Tribunal must determine whether, on the balance of probabilities, this is “an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice”. Whether this is an exceptional case includes a consideration of whether there is an unacceptable risk that issuing a positive notice would harm the best interest of children. Any hardship or prejudice suffered by the applicant flowing from such a determination is irrelevant to this consideration.
Unless the Tribunal is satisfied that issuing a positive notice would be contrary to the best interest of children, a positive notice must be issued.
If the Tribunal is satisfied that the applicant poses an unacceptable risk to children, a negative notice must issue.
THE RESPONDENT’S SUBMISSIONS
The Respondent provided written and oral submissions. They were as follows:
1.Having regard to s 226(2) of the CCYPCG Act, the following matters are relevant:
o A conviction has been recorded against the applicant;
o The offence is not a serious or disqualifying offence;
o Four convictions for possession of a dangerous drug are recorded between 1986 and 1997, and one more recent conviction for possession is recorded on 19 October 2009;
o The Court Brief should be relied upon as an accurate description of the events of 25 September 2009 and that the applicant had possession of heroin that day, that he was in the company of a person about to use heroin, and that he himself intended to use heroin on that day.
o The applicant’s more recent denial of his intention to use drugs on that day, and his stated intention to assist his companion to rehabilitate from drug use should not be accepted as it was provided some three years after the event and is unlikely given that one of the filled syringes was found in the centre console on his side of the car.
o The offence of possessing dangerous drugs is relevant to child related employment in that use of drugs by a primary carer directly affects children as it impairs the care giver’s ability to care for and protect children from harm, and puts the child or children in their care at direct risk of harm. Drug use paraphernalia, including syringes, poses a direct risk to the health and safety of children. Exposure to a care giver affected by drugs can harm a child emotionally, psychologically and physically. A person affected by drugs provides an inappropriate role model to children and exposes a child to drug use and potentially to those who associate with the use or sale of drugs.
2.The applicant has provided evidence that he deals with his drug dependency daily, that he gets support from NA meetings, informal meetings at work, and from telephoning support people. However, without a routine relapse prevention strategy (eg scheduled and regular NA meetings) only the applicant himself can identity when he is at risk of relapse. The applicant is not undertaking ongoing treatment in order to prevent relapse into drug use.
3.The applicant has not taken sufficient steps to resolve his drug addiction and illness.
4.The applicant’s current denial of his intention to use heroin in 2009 demonstrates a clear lack of insight into his drug offending, drug dependency and the risks of relapse. He has not demonstrated insight into how future drug offending or use would affect or create a risk to children in his care.
5.The applicant has a history of drug offending and drug addiction. If granted a blue card, he would be in a position of trust and authority for a foster child and would be a primary care giver for a child who is vulnerable and of a young age.
6.The applicant has failed to demonstrate appropriate insight into his drug dependency and the risk of relapse that would satisfy this Tribunal that there is no ongoing risk to the children of Queensland.
7.Transferability is a significant consideration. If the applicant was issued with a blue card he would be able to work in any child related employment, and he would continue to hold the blue card even if he subsequently relapsed into drug use.
8.Having regard to the gravity of the consequences involved, the assessment of the evidence, the likely risks arising from such assessment and the children’s best interest being paramount, QCAT will be satisfied that there exists an unacceptable risk of harm to children. Exceptional circumstances are established, and a negative notice should issue.
9.The welfare and best interests of children are paramount.
THE APPLICANT’S SUBMISSIONS
The applicant referred the Tribunal to a document prepared by the President and a member of the former Childrens Services Tribunal (Qld) and presented at the AIJA Tribunals Conference in June 2009. The document sets out an “Exceptional Case Tool” which the applicant submits should be relied on in this case.
The document provides a list of factors which the Tribunal considers relevant in assessing whether a case is an “exceptional case”. The Tribunal accepts that the matters raised in the paper are relevant to its consideration.
The applicant’s oral submissions were:
· He is seeking a blue card only because of SS. He is not asking to look after any other children in Queensland;
· The evidence of his ability to care for children is in his own gorgeous children who have never been harmed;
· The Tribunal should accept the evidence of Dr Helliwell, an expert in addiction, who stated that there was a 99.9% chance that he wouldn’t relapse into drug abuse because of the tools available to him;
· He knows how to manage his addiction and has been doing it well for the last 12 years;
· The 2009 incident was “stupid” and he is “really sorry” that it happened. He has changed since then and now would not put his relationship with HD or SS at risk by associating with drug users;
· He has no convictions or charges for child related offences;
· He has never hurt a child and would never dream of hurting a child. He would never put a child in a position where they would lead the life he used to lead;
· He is a good role model for his children;
· He has strategies in place to deal with the risk of relapsing into drug use. He could not have stayed clean for so long without a plan. His tools such as NA, his doctor and his support groups keep him together;
· He would never put a child through what he has been through – his life was “stuffed” and he would not do that to another person;
· There is no demonstrated risk to children;
· He holds a good job and supports his family unit financially and emotionally;
· He has shown remorse for his past actions;
· There is no evidence of violence in his past or present life;
· He has a good relationship with a partner who has never used drugs;
· He has a great paying job which he loves and great friends who do not take drugs;
· He successfully engaged in rehabilitation through the Salvation Army and still today uses the tools they taught him;
· He has routines as a family and as an individual;
· He will continue into the future to maintain his current lifestyle because “that’s my life”.
THE TRIBUNAL’S VIEW
The Tribunal has identified potential risk factors and potential protective factors following the example in Commissioner for children and Young People and Child Guardian v Maher and Anor (2004) QCA 492.
The potential protective factors for the applicant are:
· There is no evidence of violence on his part;
· His long term partner is vehemently anti-drugs;
· He has a partner, friends and work colleagues who support him and who appeared at the Tribunal on his behalf;
· He has a good relationship with his partner;
· He has a good job;
· He is involved in his community to the extent that he is able, given that he is working on a fly in / fly out basis. He is actively involved in the “mates in construction” support work for colleagues and has advocated for SS to ensure that her cultural needs are being addressed;
· He has successfully undertaken rehabilitation treatment and has, in the words of Dr Helliwell “his own momentum in the recovery process”;
· He has very structured routines at work and at home;
· He is highly motivated to stay clean as to return to drug use would result in the loss of his relationship and his employment;
· He has demonstrated clear insight into the affects of his drug use and addiction – he has lived out the consequences of being exposed to drugs as a child and gave stark evidence of the criminal and abhorrent lifestyle he led while immersed in the (in his words) “junkie” life;
· He is committed to protecting his and other children from the life he once led. He demonstrated genuine remorse for his actions in taking drugs and a clear understanding of the dangers posed to children who are exposed to drugs;
· His employment drug screening has always been negative.
The risk factors for the applicant are:
· His long history of drug use and immersion in drug culture and an acknowledged risk of relapse;
· He has a continuing association with drug users through NA meetings;
· He has in the past been clean for a period and then fallen back into heavy drug use;
· If he loses his job or his relationship he will lose some of the support assisting him to stay away from drugs.
The Tribunal finds that, on the balance of probabilities, the applicant is not currently using drugs and has not used drugs for many years. The Tribunal has relied on the evidence of the applicant, and also taken into account the evidence of HD and from his employer. The Tribunal has had particular regard to the evidence provided by Dr Helliwell who advised that, should the applicant return to drug use he would quickly become a heavy user and would be unable to mask his use from his partner or his employer. We note further that HD’s family have indicated that they have been suspicious of the applicant from the beginning of his relationship with HD but are not aware of anything to suggest ongoing drug use or lack of care towards the children in his care.
The Tribunal is satisfied that there is some very limited risk that the applicant will return to using drugs. The applicant himself conceded that he continues to need to work on remaining clean and Dr Helliwell stated that there is always a risk that a former addict will relapse.
The Tribunal finds that it is unlikely that the applicant will return to using drugs. Once again, the Tribunal has had particular regard to the evidence of Dr Helliwell who advised that, in his opinion, the applicant has done extremely well and it is “very, very, very unlikely that he would spontaneously relapse”. Dr Helliwell’s evidence is in accord with the evidence provided by the applicant himself and also the evidence provided by his partner HD.
The 2009 incident raises some concerns for the Tribunal. The Tribunal is satisfied that approximately two years ago, the applicant had possession of heroin and it may be that he intended to use it. Even if we accept that the applicant was intending to use the drug on that date, we are satisfied that he did not in fact use it and has not in fact used heroin for some 11 or 12 years. We accept the applicant’s evidence that since 2009 he has ceased contact with friends who he knew through using drugs and now has a small circle largely limited to work colleagues, his current family unit and some close friends who have not been involved in the use of drugs.
On balance, the Tribunal is satisfied that the applicant does not pose an unacceptable risk of harm to children. In determining that MT’s case is not an exceptional case in which it would not be in the best interests of children to issue a positive notice the Tribunal is also satisfied that the earlier outlined protective factors far outweigh the risk factors, and that the likelihood of drug relapse is minimal.
Some discussion was held at the hearing regarding the mechanics required for the respondent to issue a blue card. The evidence is that a positive notice will issue from the Commissioner within a day of receipt of an updated criminal history from the Queensland Police Service showing no new matters. In order to request an updated criminal history the Commissioner requires the applicant to lodge a further application. Lodgement of the application will allow the Commissioner to start the process of issuing a blue card. For this reason, the Tribunal is satisfied that the positive notice should issue as soon as practicable, but in any event no more than 14 days from the receipt of the application from the applicant.
In order to protect the children mentioned in this decision from being identified, the Tribunal makes a confidentiality order over these reasons so that they can only be published in a de-identified form.
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