Ryan v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 187

CITATION:

Ryan v Commissioner for Children and Young People and Child Guardian [2014] QCAT 187

PARTIES:	Bradley James Ryan (Applicant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML097-13

MATTER TYPE:

Childrens matters

HEARING DATE:

10 February 2014

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

DELIVERED ON:

23 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Commissioner’s decision to issue a negative notice to Mr James is confirmed.

CATCHWORDS:

Blue Card – where applicant convicted of serious offences, including sexual assault – where history of drug and alcohol abuse – whether an exceptional case in which it would not harm the best interests of children to issue a Blue Card

Commission for Children and Young People and Child Guardian Act 2000

Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Appeared on his own behalf

RESPONDENT:

Mr Capper appeared for the respondent

REASONS FOR DECISION

Mr James applied to the Commissioner for a Blue Card so that he is able to teach karate, including to children.
In considering the application, the Commissioner took into account Mr James’ criminal history, summarised as follows:
a)     1999 unlawful use of motor vehicle, stealing, arson. Probation 2 years. No conviction recorded.
b)     2001 behaving in a disorderly manner. Convicted and fined.
c)     2006 Wilful damage to property. Convicted and fined.
d)     2007 Possessing dangerous drugs and property suspected of having been used in connection with commission of a drug offence. Breach of order. No conviction recorded. Fined.
e)     2008 Supplying dangerous drug to person who did not know they were being supplied with the drug, sexual assault, rape. These charges arose out of Mr James’ behaviour on the same day and are discussed in more detail later. Convicted and imprisoned.
f)     2009 failure to take reasonable care and precaution in respect of needle or syringe. Convicted.
g)     2011 breach of release conditions. Assault or obstruct police officer. Conviction recorded.
h)     2012 breach of suspended sentence.
If Mr James has been convicted of a “serious offence” (as defined in the legislation) the Commissioner must issue a negative notice (i.e. refuse to issue a Blue Card) unless the Commissioner is satisfied that this is an exceptional case in which it would not harm the best interests of children to issue the Blue Card. Mr James has been convicted of two “serious offences.”[1]
[1]CCYPCG Act, ss 167(1)(a), 225(1), and 225(2).
Mr James seeks a review of the Commissioner’s decision to issue a negative notice. Mr James says that this is an exceptional case in which it would not harm the best interests of children to issue the Blue Card. He asks that I overturn the Commissioner’s decision and issue a positive notice, which means that he would receive a Blue Card.
Mr James describes an unremarkable early childhood and a passion for the outdoors and active engagement with sport. He showed a particular aptitude for karate and represented his region and state in competitions. In his mid-teens he began to use marijuana occasionally and a couple of years later began to drink alcohol. As he was getting into trouble at school his parents moved him to a local private school. Unfortunately Mr James never felt comfortable at the school and left as soon as he was able to.
Shortly after leaving school he was involved in a horrific car accident and one of the friends travelling with him was very seriously injured. Mr James was charged with driving without due care and attention and he says that due to the “high pressure environment” he continued his patterns of drinking as a form of release and relaxation. Mr James described his mental state spiralling downwards and resorting to drugs and alcohol to cope.
Mr James moved to Mr Isa just after his 18^th birthday in an attempt to make a fresh start. At Mt Isa, however, he began to use amphetamines (speed and ecstasy) in addition to marijuana. He moved back home only to find that many of his friends were also using drugs and he was unable to make a break from using when those around him continued to.
In his early 20’s Mr James experienced the trauma of the suicide of a friend, a drug user, and the overdose death of another friend in his arms. He realised he needed to change his life and moved to Brisbane. He entered into a relationship with a young woman and began drinking heavily with her family. When the relationship ended a year later Mr James was dependent on alcohol.
Mr James continued to use both illicit drugs and alcohol frequently. In 2008 Mr James put an ecstasy tablet into the beer bottle of a young woman who he knew and then sexually assaulted her. Mr James states that he was affected by both drugs and alcohol at the time. He was imprisoned for that crime.
Mr James says that he returned to drinking alcohol shortly after his release from prison.
Since his release from prison Mr James has been charged in relation to two separate incidents, both involving allegations of domestic violence and both involving Mr James drinking heavily. In October 2011 Mr James was released from the police watchhouse on the condition that he did not return to the home occupied by his partner. Notwithstanding that condition, Mr James returned to the property.
In August 2012, police were called to Mr James’ home after he and his partner Ms Cox were involved in an argument. Ms Cox now says that the details which she supplied to the police on the evening were inaccurate as she was angry with Mr James and trying to get him into trouble. She says that she has her own struggles with a medical condition and was not able to take medication while pregnant, causing her to overreact and exaggerate the events of the evening. I accept that Ms Cox has been struggling with her own mental health issues and both Mr James and Ms Cox have struggled to cope with issues around Ms Cox’s ex-partner, and his relationship with the children he has with Ms Cox. I do find, however, that Mr James consumed an excessive amount of alcohol on that day, and that he did act aggressively in the home which he shared with Ms Cox and her children.
In deciding whether or not Mr James should receive a Blue Card, I must take into account the criteria set out in the legislation.[2] The welfare and best interests of children are paramount. I must determine whether this is an exceptional case in which it would not harm the best interests of children to issue a Blue Card. If this is not such an exceptional case, Mr James cannot receive a Blue Card.
[2]CCYPCG Act, s 226.
In making my decision, I have weighed up the protective factors as against the risk factors.
I accept that Mr James has had some significant setbacks in his life and that he has taken great steps in overcoming them. The trauma he experienced as a teenager and a young man has clearly been very difficult for him to deal with. Mr James has reflected on his life and realised that he has not coped well with being in high pressure situations and has taken active steps to find employment and a positive recreational pursuit (karate) which have resulted in a more stable lifestyle.
Mr James has dramatically reduced his use of alcohol and says that he has not used illicit drugs since being released from prison.
Mr James has demonstrated genuine remorse for his behaviour in assaulting the young woman. He described his behaviour as disgusting and appreciates and the young woman is likely to have experienced ongoing difficulties as a result of his actions.
Mr James has provided a number of reports from psychologists. On 12 June 2008 Peter Perros, psychologist, provided a pre-sentence report for Mr James. Mr Perros was of the view that the administration of the drug and sexual assault were “quite out of character” for Mr James.
Mr Michael Jackson, psychologist, has provided a two reports, one on 1 February 2012, and the second dated 28 January 2014. Mr Jackson has worked with Mr James since July 2010 and has also worked with Mr James’s partner, Ms Cox. In his 2012 report Mr Jackson notes that Mr James had attended counselling and successfully overcome his anxiety issues. Mr Jackson records that Mr James had completely abstained from alcohol since the “domestic issue” in October 2011 which had happened in the context of Mr James using the medication Champex and drinking alcohol. Mr Jackson indicated his belief that Mr James “will not falter again”.
In his 2014 report Mr Jackson records that he has seen Mr James “progress significantly on a personal level” since 2010. Mr Jackson believes that Mr James has overcome his addiction to alcohol. Mr Jackson commends Mr James for his perseverance in overcoming the issues he has faced in his life, and his past mistakes. Mr Jackson notes that Mr James has changed vocations and moved into a living environment which is low in stress and has had positive benefits for him on a physical and psychological level. Ms Cox is noted to be a supportive partner who would not remain with him if he was any risk to her children or others. Mr Jackson states that during therapy since 2010 Mr James has learnt skills and techniques to recognise and deal with stressful situations, has learned cognitive behaviour skills to reduce stress and make positive and rational decisions rather than emotionally based decisions.
Mr Jackson supports Mr James’ application because of the work he has done to overcome his difficult past. He points out that Mr James is in stable employment, is reconciling his relationship with Ms Cox gradually in order to build a strong foundation, is engaging in regular physical exercise and ongoing personal development, and is future orientated.
Mr James has the ongoing support of his partner Ms Cox. The couple are not currently living together but are committed to a long term positive relationship and plan to move back in together in the future. Ms Cox describes Mr James as “very kind, caring and loving”.
Mr James has sought help and support in dealing with his ongoing use of alcohol from a cousin who is a recovering heroin addict. The cousin supported Mr James in attending AA meetings. Mr James says that he has learned a lot from his mistakes and is determined to grow and learn as a person.
Mr Jackson has the support of his work colleagues who believe that he has a bright future with them.
Mr James himself says that he has made significant changes to his life: he has less stressful employment, has taken up karate and other exercise to reduce stress, has quit smoking and reduced his alcohol consumption, has embraced the responsibilities of pet ownership and the responsibilities of caring for his infant son, and participates in ongoing self-development programmes.
Mr James’ criminal history is of concern, and I note that his crimes have been committed in the context of use of alcohol and drugs. The sexual assault crimes are particularly concerning as they involve a gross breach of trust, involving as they did the intentional drugging of an unknowing victim and the assault of her while affect by the drug.
The domestic violence incidents raise further concern. They are quite recent and also occurred in the context of the overuse of alcohol.
I must take into account that the issuing of a Blue Card would allow Mr James to work unsupervised in any child related industry and cannot be restricted to be used only for the purposes of teaching karate.
Mr James has a long history involving the use of marijuana and the overuse of alcohol. He has reacted poorly and aggressively in times of stress. There is no doubt that Mr James is committed to ending his reliance on these substances. I accept that Mr James is not using these substances to the extent that he previously did. I accept that he intends not to revert to his previous patterns of behaviour. Mr James has overcome many hurdles and is working to improve his ability to deal with stress and ensure that he is able to cope with challenges that come up in his life.
The difficulty is that Mr James has formed the same resolve previously and has been unable to maintain long term stability and abstinence from reliance on alcohol in stressful times. I am not criticizing Mr James. His determination to overcome the difficulties in his history is admirable and he is to be commended for the steps he has taken to get his life back on track. It is the case, however, that Mr James has a long history of difficulties coping with stress and other challenges. When not coping, he has turned to alcohol. He has shown great perseverance, particularly in ceasing the use of illicit drugs. He is continuing to work on ensuring that he does not revert to the use of alcohol or react aggressively during challenging times. He has not demonstrated that he has conquered these challenges. I cannot be satisfied on the evidence currently available that Mr James will not in the future resort to the use of alcohol to cope with difficult situations, or react aggressively when stressed.
In order to issue a Blue Card, I must be satisfied that this case is exceptional. That means the evidence must reveal more than a person with a criminal history making improvements to his life. On balance, I cannot be satisfied that this is an exceptional case in which it would not harm the best interests of children for a Blue Card to be issued.