SDJ v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 122
| CITATION: | SDJ v Commissioner for Children and Young People and Child Guardian [2014] QCAT 122 |
| PARTIES: | SDJ (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML234-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 24 February 2014 |
| HEARD AT: | Queensland |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 1 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 13 November 2013 to issue a negative notice to Mr SDJ is set aside and a positive notice and blue card is to be issued to Mr SDJ. 2. The Tribunal prohibits the publication of the names of the Applicant, the Applicant’s ex-wife and children referred to in these proceedings. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where drug offences Commission for Children and Young People and Child Guardian Act 2000 (Qld) ss 226, 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr. SDJ - self represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Louisa Keown, Solicitor (in-house) |
REASONS FOR DECISION
Mr SDJ is undertaking a Degree in Nursing and needs a blue card to undertake the practical work part of the Degree Course.
The Commissioner is concerned that Mr SDJ has convictions for producing marijuana plants in 2001 and 2009 with five other drug offences between 1994 and 2009.
The Commissioner is rightly concerned that marijuana can cause behavioural and psychological changes that impact on the ability of an adult to properly care for children, especially the young children that were in his care. The Commissioner is of the view that Mr SDJ’s drug offending adversely reflects on his eligibility to work with or interact with children in activities regulated under the Act.
The issue for the Tribunal standing in the shoes of the Commissioner is whether any exceptional circumstances exist that it would not in the best interests of children for Mr SDJ to be issued with a blue card. The focus of the Tribunal is on the best interests of children and not on what might be in the best interest of the Applicant.
Mr SDJ
He acknowledged that he started smoking marijuana at a young age and associated with people who also use the drug.
His attitude to marijuana started to change when his children were born. He told the Tribunal that one of the reasons that he broke up with his first partner was because her attitude to the drug was too permissive.
The tentacles of addiction cling tightly and Mr SDJ conceded it took much longer for him to make a complete break from smoking marijuana. He told the Tribunal that he had become involved in a form of martial arts in 2000. His instructor told him that he was not prepared to teach him if he was still smoking marijuana.
Mr SDJ by all accounts developed into a proficient martial arts expert. He told the Tribunal that he had participated in over 30 fights and had represented Australia in his discipline. He subsequently took an interest in teaching children and has previously held a blue card.
He acknowledged that over this period when he was fighting he still had thoughts about using marijuana. He did not drink or use other forms of recreational drugs. He realised at some point in time that marijuana was an addiction that he needed to address.
Mr SDJ obtained on 29 August 2007 a Certificate IV from the Australian Institute of Personal Training that allowed him to undertake group and individual training. He then undertook over 18 months a Diploma in Shiatsu & Oriental Therapies. He completed the Diploma on 31 August 2010. He learnt a lot about yoga and meditation. He says that some of these teachings that he learnt are now the basis of the approach used by the Alcohol Tobacco and Other Drugs Agency (ATODS). He reached an understanding from this study about the difference between fitness and health.
He told the Tribunal that as a result of his own experiences he had empathy for addicts. He appreciates how addictive marijuana can be and the detrimental effect it has on people’s health and well-being.
He has no desire to ever go back to that habit again. He accepts that there may be an argument for use of marijuana in a medical sense for those in chronic pain but he never wants to use it ever again.
He said that he had made a point to his children that they needed to learn from his negative experiences and the trouble that he has got into from its history of using marijuana. He has been open to his children about the negative effects of marijuana through their formative years so that they can make better decisions. He has used education on the issues around drug use as a means of supporting his children.
He told the Tribunal that he is not now the person that he was. He explained how the drug could have: a sedative; and relaxing effect. His use was a social thing with “friends who did the same thing”. When he stopped smoking marijuana he went through several years without any friends because all of his friends had smoked marijuana. He acknowledged that anxiety and paranoia will also features of marijuana use.
He looked back on his history and says that he sees how stupid his actions have been. He argues that he has never been convicted of supplying the drug and that his use of marijuana has always been personal. He told the Tribunal that when he had grown 348 plants in 2001 the judge was convinced by the chaotic nature of plantings that it was simply an attempt to grow his own marijuana.
He stated that he was not a regular user of marijuana post-2002 but admitted he would give up for a month and then dabble in marijuana again. He took a couple of years to stop completely.
He gave the Tribunal an explanation for his conviction in 2009 growing five plants. He knows that he must accept the conviction and the admission that the drugs were for his own use. He says however that he was not smoking marijuana at the time.
He undertook counselling in 2001 and 2009 with ATODS. He watched a video with 2001 and was on probation in 2009. Whilst on probation he was subject to random drug tests. His evidence was that over 18 months he was randomly tested and all the drug screens were negative.
He now uses meditation as a way of focusing his life. The use of marijuana is not consistent with the breathing exercises that he uses with his meditation exercises.
He has severed all his old drug associations and walks past those who might try to rekindle those associations. He accepts that he needs to be responsible for his own actions. He now understands how seriously such behaviour can in fact on both himself and others.
Ms DK
Mr SDJ is her previous partner. Towards the end of their relationship the house which they shared was raided by the police and the police discovered five marijuana plants. She and the children had been unaware that he was growing the plants as they were hidden in an area where they had no access.
She was not aware of him smoking marijuana at this time and was personally against the consumption of marijuana.
She has known him for a period of over 10 years. He has made significant changes to his lifestyle during that time. He has become committed to helping people with their health. He has changed from an aggressive person to someone who is interested in meditation.
She told the Tribunal that Mr SDJ always tried his best for his children. She would have no problems with him working with their children in any capacity. Since their divorce he spends time their children on weekends and recently took one of them for a week to the Gold Coast for a theme park holiday.
She was aware of his past history included a number of drug offences. She was not aware of the specific details of all the offences.
He is a very committed person who puts himself wholly into the activities in which he is involved. She has been impressed by his willingness to undertake further education and make himself a better person. She is aware that he is really interested in health which is why he is undertaking the nursing course.
Ms TA
She has known Mr SDJ for over 10 years as a friend of the family. She knows him as a very loving person who has a peaceful spirit. She is aware of his history with drug offences. He has changed his life and would be an asset to child focused employment. He is great with children. He engages well with children. He listens to their concerns. She has seen him working positively with her own children and other children.
HG
He has been Mr SDJ’s stepfather since he was four years old. He has seen tremendous change in SDJ and he is very proud of the person that he has become. He has learnt from his mistakes and put himself in a very good position. He had problems when he was younger and got it trouble in 2009 but he had worked his way around his history. He has four children now and has been supportive of all his children and is a good father.
Two of his children, the oldest two have been living with him and the youngest to live with Katrina. He takes the youngest for walks and different activities.
He supports SDJ’s application for a blue card.
FM
She told the Tribunal that SDJ had trained her almost 7 years. Her observations of him: are that he works hard; and cares about his family. He is someone that she trusts and trusts with her children. He lives a very healthy lifestyle. She has seen his interaction with children and he works very well with children.
Commissioner’s Submissions
The Commissioner's view was that the evidence did not mitigate the risks that arise from Mr SDJ’s drug history. He has a history that extends from 1994-2009 and included offences when he could no longer be regarded as a young offender.
The Commissioner acknowledged that Mr SDJ had previously held a blue card even with his previous history of drug offences. The Commissioner was concerned that adults who used marijuana not having the capacity to be good parents and meet their children's needs.
The Commissioner acknowledged that Mr SDJ had no convictions for what were defined as “serious offences”. This means under section 221 of the Act Tribunal must issue a positive notice unless exceptional circumstances not in the best interests of children exist. So the best interests of children are paramount.
The Tribunal must weigh up all the evidence in making its decision. Mr SDJ provided written material and gave extensive oral evidence. He used the opportunity to explain his behaviour and the changes that he had made in his life. He talked about his kickboxing and that he had last dabbled with marijuana around 2001. He gave an explanation for growing marijuana in 2009 which was that he had a friend who had cancer and who was in chronic pain. The Tribunal notwithstanding his explanation behind the conviction cannot go behind the conviction.
The weight attached to the evidence of witnesses should be limited because of their limited knowledge of his offences and because of their family relationship with the applicant.
There was no evidence that he had actually caused any harm to his children in relation to his drug use. The Commissioner accepted that he had a good relationship with his children. He has acknowledged that he made mistakes in his life as consequences of his addiction to marijuana. He showed insight into the effects of the addiction.
The Tribunal cannot take into account the importance to Mr SDJ of him obtaining a blue card for his nursing course. The Tribunal cannot take into account the benefit such training could benefit children.
What is an “exceptional case”?
The Commission for Children and Young People and Child Guardian Act 2000 (Qld) (the Commission Act) does not define the meaning of an “exceptional case”. Section 226 of the Commission Act refers to certain factors that the Commissioner must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Commissioner reasonably considers to be relevant to the assessment of the person.
The object of the Commission Act is to ‘promote and protect rights, interests and wellbeing of children in Queensland’. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009 (Qld), in determining whether an exceptional case exists, ensure that the safety and wellbeing of children is its “paramount consideration”.[1]
[1]Commission for Children and Young People and Child Guardian Act 2000 (Qld) s 155.
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[3] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3][2004] QCA 492 at [28].
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
In the event that the Tribunal confirms the decision made by the Commissioner to issue a negative notice, Mr SDJ is not prevented from applying to the Commission, at some future time, for a blue card to enable him to work with children.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
Mr SDJ has a criminal history made up of drug offences. The Tribunal accepts Mr SDJ’s evidence that he was not smoking marijuana at the time of the 2009 offence. This is corroborated by the evidence of his ex-partner Ms DK. She was opposed to people smoking marijuana and would not accepted Mr SDJ as a partner if he was smoking marijuana.
The Tribunal agrees with the Commissioner that it cannot go behind the conviction that Mr SDJ has in 2009.
The Tribunal agrees with the Commissioner that Mr SDJ has insight into the damaging effects of the consumption of marijuana and the risks to children.
The Tribunal agrees with the Commissioner that Mr SDJ has expressed remorse for his history and acknowledged that he has made mistakes stemming from his drug addiction.
The Tribunal accepts that Mr SDJ has made substantial changes to his life. The tribunal had the opportunity to listen to Mr SDJ at length during the hearing explaining his behaviour and how change should come about in his life. He has through education and his life experiences make changes to his lifestyle. These changes have been noticed by those close to him. The Tribunal accepts the evidence of his stepfather HG and his former partner DK who know him very well. They confirmed that they had seen the positive changes that Mr SDJ has given evidence to.
The Commissioner did not have the same opportunity to assess Mr SDJ as the Tribunal and this was of great benefit to the Tribunal in assessing Mr SDJ’s character and credibility.
The Tribunal is of the view like the Commissioner that the risks in this matter are around Mr SDJ‘s drug history. The Tribunal is of the view that those risks are mitigated by the following factors: his insight into his addiction; the steps he has undertaken to rehabilitate himself; the supports that he has surrounded himself with; his severance of his previous friendships; his insight into the effects of marijuana on himself and others; the strategies he has developed to deal with the stressors in his life. The Tribunal is of the view that this is not an exceptional case were it would not be in the best interests of children for Mr SDJ to have a blue card.
The safety and wellbeing of children is the Tribunal’s paramount consideration in determining whether an exceptional case exists for the purposes of the Commission Act. For the reasons referred to, the Tribunal determines that the appropriate order is that the decision made by the Commissioner to issue a negative notice be set aside and a positive notice issued.
Non-publication order
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as Mr SDJ’s ex-wife and children to be identified in circumstances where it would not be in the interests of justice to identify their names.
The Tribunal is also satisfied that there is no public interest served by disclosing Mr SDJ’s name in circumstances where disclosure of his name would identify his ex-wife and children. The Tribunal therefore prohibits the publication of the names of Mr SDJ, his ex-wife and children.
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