Idzikowski v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 487
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- Idzikowski v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 487
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Idzikowski v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 487
Idzikowski v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 487
CITATION: | Idzikowski v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 487 |
PARTIES: | Daniel Idzikowski (Applicant) |
| V |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML099-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 21 September 2015 and Written submissions received on 28 September 2015 and 8 October 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard |
DELIVERED ON: | 8 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
A positive notice is issued to Daniel Idzikowski. |
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW- BLUE CARD- whether exceptional case - where adult found guilty of a serious offence while a child in 1995 – where convictions for drug related offences in 2008 – where adult has a history of alcohol and drug addiction - where adult went onto methadone program in 2008 – where adult underwent detoxification and has been undergoing residential rehabilitation programs to cease drug and alcohol use since early 2010 – where adult relapsed several times – where adult has been clean and sober since August 2013 – where adult no longer has urges to use drugs and/or alcohol – where adult able to demonstrate commitment to abstinence, protective strategies, and formal and informal support networks – whether exceptional case. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 167, s 225, s 226, s 360, Schedule 7 Working With Children (Risk Management and Screening) Act 2000 (Qld), s 19, s 20 Ax v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children & Young People v Ram [2014] QCATA 27 Grindrod v Chief Executive Officer, Department of Community Development [2008] WASAT 289 In the marriage of Sandrik (1991) 104 FLR 394 Kent v Wilson [2000] VSC 98 Re: Imperial Chemical Industries Ltd’s patent extension petitions [1983] VR 1 Schwerin v Equal Opportunity Board (1994) VR 279 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 |
APPEARANCES:
APPLICANT: | Mr Idzikowski appeared on his own behalf. |
RESPONDENT: | Ms Kylie Heath, in-house legal officer, appeared for the Public Sector Business Agency. |
REASONS FOR DECISION
- [1]Mr Daniel Idzikowski is studying counselling and community services. He applied to the Chief Executive Officer, Public Safety Business Agency (‘PSBA’) for a positive notice (for a blue card). PSBA made a decision to issue Mr Idzikowski with a negative notice. Mr Idzikowski has applied to the Tribunal for review of the decision. He seeks orders from the Tribunal that PSBA’s decision be set aside and that he be issued with a positive notice.
- [2]PSBA assessed Mr Idzikowski’s application under the Working With Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). The Tribunal in conducting its review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) has all of the functions of the decision maker for the review of the reviewable decision.[1] The purpose of the review is to produce the ‘correct and preferable decision.’[2] The Tribunal must hear and decide the review by way of a fresh hearing on the merits of the application.[3] Effectively, the Tribunal stands in the shoes of the original decision-maker and makes its own decision, based on the evidence before it and the applicable law.
- [3]It is uncontroversial that Mr Idzikowski has been (within the extended definitions of ‘conviction’ in the WWC Act)[4] convicted of a serious (but not disqualifying) offence.[5] Accordingly, the Chief Executive Officer under the WWC Act must issue a negative notice to the person,[6] unless the Chief Executive is satisfied it is an exceptional case in which the best interests of children would not be harmed if a positive notice was issued.[7] If the Chief Executive is satisfied that it is an exceptional case, then the Chief Executive (and on appeal the Tribunal) must issue a positive notice to the person.[8]
- [4]‘Exceptional case’ is not defined in the WWC Act. It is settled law that it is a matter of discretion considering the merits in each case. What constitutes an exceptional case is a matter of fact and degree.[9] Hardship or prejudice suffered by an applicant is irrelevant.[10] What amounts to an exceptional case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur.’[11] It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.[12]
- [5]The paramount consideration in employment screening decisions under the WWC Act is a child’s entitlement to be cared for in a manner that protects the child from harm and promotes the child’s wellbeing.[13] The passage of time alone is not determinative of whether or not a case is an exceptional case.[14] Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness.[15]
- [6]Section 226 of the WWC Act sets out a non-exclusive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to whether it is a conviction or a charge; whether the offence is a serious offence and if it is, whether it is a disqualifying offence; when the offence was committed; the nature of the offence and its relevance to employment that may involve children; and in the case of a conviction, the penalty imposed by the court and the court’s reasons for its decision.[16] Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[17] The decision-maker also considers relevant risk and protective factors and balances those.[18]
1. Mr Idzikowski’s criminal history
- [7]Mr Idzikowski’s convictions occurred in 1995 and 2008.
The Serious Offence
- [8]In 1995, when he was 15 years of age, Mr Idzikowski pleaded, and was found guilty, of assault with intent to steal and threatened use of violence while armed with an offensive weapon and in company. This is a serious offence under the WWC Act. He was dealt with under the then current juvenile justice legislation. No conviction was recorded. He was placed on probation for two years for that offence. The reasons for the decision of the District Court are not available to me.
- [9]The material reveals that Mr Idzikowski was apprehended shortly after the offence. He was cooperative and voluntarily participated in an electronic record of interview, admitting that he had gone for a drive with some friends, and that they had decided to rob a store because they wanted the money and for a rush. He carried a knife to scare the shop assistant into giving money. Having demanded the money, the offenders ran off when they heard a car pull up in front of the store, fearing they would be caught.
- [10]In hindsight now, Mr Idzikowski explains that it was a stupid decision, to which he gave no considered thought and which he deeply regretted. He realises in hindsight that the shop assistant would have been terrified.
Drug Charges
- [11]In 2008, Mr Idzikowski was charged with various drug related offences. The charges relate to possession of prescribed restricted substances; possession of equipment for administering prohibited drugs; and possessing a prohibited drug. Although originally sentenced to one month’s imprisonment in respect of convictions for these charges, on appeal, the charge of possession of equipment for administering prohibited drugs was dismissed. There is some lack of clarity in the documentation available, but it seems that convictions were not recorded for the charges of possession of a prohibited substance or a restricted substance, and Mr Idzikowski was placed on a 12 month’s bond. The District Court’s reasons for decision on the appeal are not available to me.
- [12]These are not serious or disqualifying offences under the WWC Act.
- [13]In respect of these charges, Mr Idzikowski and his former partner were intercepted by the police and the charges resulted from a search of the vehicle. His history of drug use is discussed in some detail in following paragraphs.
Other Charges
- [14]In 1997, Mr Idzikowski was charged with breaking and entering a dwelling house with intent (on 11 June 1996) and stealing (on 11 June 1996). A nolle prosequi was entered on both charges and he was discharged. The Tribunal has no additional information about these charges. However, they were charges only when he was 15 years of age. The prosecution presented no evidence against Mr Idzikowski in relation to them and he was discharged by the court concerned.
2. Mr Idzikowski’s life history
- [15]Mr Idzikowski admits a significant history of drug and alcohol use. He started experimenting at age 13 or 14 with alcohol and marijuana. He first tried speed at 15. He says that in 1995, the commission of the offence was motivated by a desire to obtain money for drugs. He has explained that at that stage, his drug use was occasional with friends, rather than addiction.
- [16]He began using cannabis regularly, from the time he was about 16 or 17. At that stage he explained that he used cannabis daily and he also started using speed once or twice a week, as well as drinking alcohol once or twice a week, in the company of friends. He was able to hold down a job at this time. Looking back now, he appreciates that he was moving toward addiction at that stage.
- [17]Subsequently, when he moved to new accommodation, he met Sharon, who later became the mother of his daughter. This relationship, from his description of it, made him ‘feel differently’ about himself. From this time, he sometimes refused speed and other drugs when they were offered to him. However, he continued to smoke marijuana three to four times per week and take speed once or twice per week. His daughter was born in 2002, when he was 22. He describes his daughter’s birth as having ‘changed things’ for him.
- [18]Mr Idzikowski and Sharon moved to Melbourne to be with her family. Initially he had jobs for brief periods in manufacturing, but then for some three to three and a half years worked as an instrument technician at Melbourne hospitals on a full time basis. He says that during this period he smoked marijuana and drank socially (approximately a six-pack on each occasion) on the weekends. However, his drug and alcohol intake was reduced. He describes his work as not being affected. It was a responsible position for which records are kept in case of later infection. He is not aware of any concern about his job performance.
- [19]In about 2005, Mr Idzikowski, Sharon and his daughter moved back to Queensland so that his daughter could have a relationship with his family. He explains that within a space of eight to ten weeks, they moved, he started a new job as an instrument technician (which he had secured before leaving Melbourne); his father passed away; and then he and Sharon separated. Sharon and their daughter returned to Melbourne. He had started working shifts as an instrument technician. During that eight to ten week period he felt extremely stressed.
- [20]When his father passed away, he started drinking heavily: he describes ‘drinking to get drunk.’ He didn’t agree with some of the operational procedures in his new role which were different from the Melbourne procedures that he was used to. Also in that period, he and Sharon separated and his heavy drinking did not stop. At that point, he was drinking on most days and he estimates approximately two cartons of beer in a week. He left his job shortly before separating from Sharon, after only four to six weeks in the role. Initially he lived at his father’s then vacant home and worked casually as an arborist, but during the administration of his father’s estate, he moved to his mother’s home.
- [21]After Mr Idzikowski moved to his mother’s home, he started working as a trade’s assistant. He was on an afternoon shift, finishing work between 12 midnight and 2:00am. He says that at this stage, he smoked marijuana most days and drank eight to ten beers each evening after arriving home. He said that during the week he did this so that he could go to sleep. On the weekend, he did it to block out the hurt he was feeling as the result of his father’s death, the separation from Sharon and loss of regular contact with his daughter. During this time, he did not use speed, only cannabis and alcohol.
- [22]In very late 2005 or 2006, when he had a reliable motor vehicle, Mr Idzikowski decided to work as a fruit picker. For some time, he did not drink as much. However, by the time of the drug related charges he had met a new partner. He describes a culture of alcohol and drug use amongst fruit pickers. During this period, with his new partner, he started using opiates. He is not sure why. He still smoked some cannabis and drank a bit of alcohol but not on the days that he used opiates. He estimates that by the end of 2006, he was using opiates on most days. At that point he smoked marijuana only occasionally. He explains that by 2008, when the charges occurred, he and his partner were actually trying to wean themselves off the opiates by decreasing the amount taken, although he admits they were still using it most days. He says it had become harder to source. His alcohol intake increased when he couldn’t get opiates.
- [23]He says that when he was convicted of the 2008 charges and sentenced to a month in jail he was terrified. Between the charge and the conviction, he had stopped daily opiate use and was trying to get clean. He considered the charges were instrumental in making him want to get clean and reflect on his lifestyle. At that point, he was drinking six to seven beers on most days after work.
- [24]Ultimately, because of the appeal and application for bail he did not spend any time in jail. After the charges in 2008 he went on to a methadone program. He continued to work as a fruit picker. At Christmas 2009, he experienced difficulties through the unavailability of the doctor prescribing his methadone, and was taking half doses to get through the holiday period. He says he was fairly ill as a result.
- [25]He decided that he was ‘over it.’ He enquired about detoxification at the HADS alcohol and drug service at the Royal Brisbane Hospital. Commendably, he weaned himself down to the necessary dosage of methadone in order to get into HADS quickly (the doctor had said it would take him 18 months to do so). From there, in early 2010, he entered a residential rehabilitation program at Moonya, run by the Salvation Army aimed at assisting people to stay clean and sober. It is usually a ten month program. He was there for approximately six months. Although he benefited from this and was clean for that period, on a weekend’s leave away from the facility, he ‘picked up a drink’. He told the staff at Moonya about it on his return from leave and subsequently packed and left.
- [26]He went back for a further short period but left after another 3 weeks and drank again. He explains that he had learned some strategies to manage personal issues and drug and alcohol use through group work and family of origin programs at Moonya. Also, he had learned it was possible to live without drugs and alcohol. At that stage, however, he could not accept that he could ‘never ever again’ have any substances. He explains that his father drank alcohol every day and he had grown up thinking that was normal and he wasn’t ready to say ‘never again.’
- [27]After leaving Moonya, he felt very disappointed with himself for drinking again. He says it made him feel worthless, and that seemed to fuel his drinking further for a period. For some time, he kept attending Narcotics Anonymous (NA) and Alcoholics Anonymous (AA), although not as often as while he was at Moonya. He recalled other participants telling him that despite ‘falling over’ and going back to substances, that he should keep coming to meetings. He says that he kept thinking about using substances: even though other people told him that urge would (eventually) go away. He didn’t go back to using drugs on any regular basis, although sometimes, if he was offered marijuana by an acquaintance or friend, he would take it. He also took morphine on a couple of occasions. However, he kept drinking almost every day. He had decided he didn’t like what marijuana and other substances did to him. He realised that he felt paranoid from using them and it made him feel ill.
- [28]He says that another turning point came for him when Sharon and his daughter came to visit him for a week. He was enjoying the visit. But, when they went to stay with a friend for a couple of nights, he drank a large amount of alcohol. He fell and suffered a significant head injury. He was hospitalised and in intensive care. He says this was a wakeup call. In 2012, of his own volition, he went from the hospital to Fairhaven, another residential program run by the Salvation Army. He realised that he had to change because he had realised by then it was not normal to use substances as he did. He felt very self-loathing. He also disliked that when he drank alcohol he blacked out and could not recall what he did. At Fairhaven, he underwent further programs for some six months.
- [29]He then injured his back and experienced disc problems while working at Fairhaven. He explained that all residents have jobs to do. He was in significant pain for about five to six weeks. He was not allowed to have any pain relief except paracetamol. To deal with the pain, he sourced and used morphine on a weekend’s leave, so he left Fairhaven.
- [30]At about that time, he received an inheritance. He bought a camper van, drank a lot and used heroin again. In hindsight, he considers that he wasted the inheritance money because of his addiction. That prompted him once again to go into rehabilitation in 2013.
- [31]He has been clean and sober since 28 August 2013. He went to Logan House for some six months where he says he learned a great deal about prevention strategies, including cognitive behavioural therapy and dialectical behavioural therapy. He described Logan House as a therapeutic community where everyone is accountable for their actions to their peers. He said it was different to the earlier programs he’d taken at Moonya and Fairhaven.
- [32]He was also assigned a counsellor with whom he worked very well and he received more individualised treatment. He wanted to do everything suggested, went to meetings, and developed practical strategies. A relapse prevention plan was required before any day leave, to identify trigger situations. In that way, they could be avoided and, if they occurred, he had strategies to deal with them. He says he applied the strategies and he felt very empowered. He has learned to speak honestly and assertively and that he not place himself in situations where he will be with people who are using.
- [33]Mr Idzikowski left Logan House in about April 2014, for accommodation in an affiliated half way house, where he lived for some 4 months. While there, he found an AA sponsor and did the STEP Program each Saturday. He also returned to Logan House as a volunteer. He feels good about going back there and ‘being on the other end.’ Hearing the desperation in the voices of people he assists, helps keep things in perspective for him. He feels like he is ‘giving back.’
- [34]In about July 2014, he moved to Gillies House, which is semi-supported accommodation for 3 months until he secured his current accommodation. He had counselling with Julie Nos. He discovered that he wanted to go to school. He began studying Diplomas in Counselling (which he has completed) and Community Services (due for completion in 2016). He is reportedly a diligent student and is doing well in his study. He volunteered at Gillies House also for a period of time after he left.
- [35]He has a four-year lease at his current residence and at the time of the hearing had been in that accommodation for some 12 months.
- [36]Mr Idzikowski volunteers at Queensland Health Injectors Network (QuIHN) providing information and education on harm minimisation strategies. He volunteers in the Qld Needle and Syringe Program (NSP) each Thursday. At the time of the hearing, he had recently been offered paid work at NSP. He has completed courses in suicide first-aid and co-morbidity of AOD and mental health. He is secretary for two weekly meetings on AA and NA.
- [37]In response to questions about why he did not believe he would relapse again after a long history of drug and alcohol use and several previous relapses, he replied that he loves being sober. His daughter is proud of him. He believes that he will continue to use the strategies he has learned and access good support. He no longer has urges to use drugs or drink. He is passionate about his study. He no longer feels ‘different from other people,’ which he did when he was using.
3. Mr Idzikowski’s psychologist and referee reports
His psychologist
- [38]Dr Julie Nos is a clinical psychologist.
- [39]She has read the reasons for decision of PSBA and is aware of the issues raised. She is aware that Mr Idzikowski is prescribed Endep (and has taken it for some years), but he achieved in the normal range of testing for anxiety and depression when last tested.
- [40]At the time of the hearing, she had known Mr Idzikowski in a professional capacity for a little over two years. Initially he attended a parenting course she ran. Later, he attended her group sessions and then individual counselling sessions. In her opinion, he has a good understanding of the impact of his behaviour on children. She describes him as highly motivated to learn in her parenting course.
- [41]She considers that he has done extensive work on identifying and understanding his risk factors and triggers for drug and alcohol use over the previous 5 years, commencing with his period in Moonya in 2010. She considers that he has mastery over this area. In respect of the violent offence committed when he was 15 years of age, she believes there is no risk of this reoccurring and that he is regretful and remorseful about it. Although it was a very serious act, she points out that impulsive, poor decision-making is not uncommon in adolescence.
- [42]She further reports significant protective factors, which reduce the risk of such behaviour. In particular, she refers to stable housing, volunteer work, study, family connection and social networks. She considers he has learned how to manage his frustrations and stressors as they come up. In her opinion he is very proactive in doing so. Dr Nos also opines that Mr Idzikowski has developed preventative strategies that reduce the risk of repetition of his former behaviours through meditation, mindfulness, continued self-development, reflection, a healthy support network and reaching out for support. Although acknowledging that there is always some risk of repeated behaviour of addiction, in her opinion Mr Idzikowski is doing all of the things he needs to do to maintain abstinence.
- [43]She would have no concerns if he was granted a blue card.
His mother
- [44]Ms Colleen Comans has seen her son fortnightly over the last 2 years. She has seen a significant change in him since he went to Logan House. His attitude has changed. He is more positive and getting an education. He has become much closer to the family generally.
- [45]She says that when he was using drugs and alcohol, she observed that he was very negative in his outlook, and kept away. She saw the indicia of drug and alcohol use when she did see him. Now, she says he is a totally different human being. She says he was previously a follower not a leader, but this has changed since his time at Logan House. When the blue card was refused, she spoke with him over the telephone quite a lot about it. He was determined not to let it get him down. She knows he also spoke with others including his AA and NA sponsors.
- [46]To the best of her observation, he has ‘things in place’ to prevent temptation or relapse. She doesn’t believe it will occur and has no concerns about him having a blue card.
His Aunt, Elizabeth Lang
- [47]She sees Mr Idzikowski only a few times per year. However, she considers he has changed over the last couple of years and has ‘turned his life around’. He is studying. He has become more family oriented. His demeanour is generally much happier from her observation.
Other references
- [48]References were also provided by other persons who have observed Mr Idzikowski at NSP and in his study environment. The referees are positive about his contribution and reliability, his keenness to learn, and the high regard in which he is held in their respective communities.
4. Is Mr Idzikowski’s case exceptional?
- [49]PSBA submits the proper inference to be drawn from the WWC Act is that it would not be in the best interests of children for persons with serious convictions to work with children unless it is an exceptional case.[19] It argues that insufficient time has passed since Mr Idzikowski became clean and sober for the Tribunal to be satisfied that he is fully and successfully rehabilitated and to prove he can deal with multiple stressors without relapsing. It argues that it is not an exceptional case and that its decision should be confirmed. For reasons to be explained, I do not agree.
- [50]I accept Mr Idzikowski’s evidence and the evidence of the witnesses he relies upon.
- [51]Mr Idzikowski gave a full account of himself. He made no attempt to minimise his addiction, his past drug and alcohol abuse or his criminal history. On the contrary, he presented as open, contrite and reflective. I was impressed by Mr Idzikowski’s honesty and his demonstrated insight into the impact of his violent offending and drug and alcohol abuse/addiction on vulnerable persons. His passion is directed to seeking to stop other persons from taking a similar path to the one he commenced upon as a young person. He also demonstrated significant remorse for his past violent behaviour and for the manner in which his drug and alcohol addictions have impacted not only his relationships, but his life in general. His evidence is consistent with the evidence given by Dr Nos, who provided her professional opinion with full knowledge of Mr Idzikowski’s relevant personal history and PSBA’s reasons for decision.
- [52]The family member referees, also spoke from an informed position about the changes they have observed in Mr Idzikowski, his reactions, coping mechanisms and relationships with a strong support network. His other referees are positive about his commitment and dedication within other communities within which he operates.
- [53]I have considered the risk and protective factors in Mr Idzikowski’s life.
- [54]He has a criminal history. He committed a serious violent offence when he was aged 15 years of age. It is, of course, of concern. It would be harmful to children for them to be exposed to a person who considered this behaviour appropriate or who may commit similar acts in the future. Although time alone does not diminish the seriousness of the offence or excuse the behaviour, it occurred over 20 years ago. It occurred at a time when Mr Idzikowski was himself a child, and as Ms Nos opined, when impulsive behaviour and poor decision-making is not uncommon. It is significant that there have not been any other convictions for violent offending. Nor does the evidence suggest Mr Idzikowski has a history of violence generally.
- [55]His only other convictions, in 2008, relate to possession of prohibited and restricted drugs. He was also charged with possessing equipment to administer them, but the conviction for this offence was dismissed. These are not offences of violence. That said, exposure to drug and alcohol abuse or persons who abuse drug and alcohol is harmful to children. In Mr Idzikowski’s case, those convictions are now some seven to eight years ago. After the appeal about these charges, Mr Idzikowski embarked upon a path to cease his reliance on and use of drugs and alcohol. Ultimately, after a series of programs and several relapses, he achieved abstinence from drugs and sobriety from alcohol by August 2013.
- [56]Initially, he went onto the methadone program. By early 2010, he underwent detoxification. Then, for the first time, he entered a residential rehabilitation program to deal with addiction at Moonya. He made some progress. He relapsed, after some six months. However, his behaviour modified to an extent. For some time, he continued to attend AA and NA meetings. He did not take drugs regularly, although he drank alcohol regularly.
- [57]He then had a serious injury from a fall while intoxicated, and when able to leave hospital in 2012, went straight into another residential rehabilitation program at Fairhaven. Again, he made some progress and was abstinent for some six months until a relapse when he used morphine for significant pain, following a period of pain. That relapse unfortunately coincided with an inheritance which was wasted during the relapse. Mr Idzikowski’s realisation that he had indeed wasted the money he received, prompted him to go into rehabilitation again in August 2013.
- [58]I accept that he has been abstinent since that time. I am satisfied, on the basis of the evidence of Julie Nos and Mr Idzikowski’s own evidence, that over his rehabilitation journey he has gained a great deal of insight into himself and his behaviour, as well as practical strategies to maintain sobriety and abstinence, to the point that he has mastery over his risk factors and triggers.
- [59]Mr Idzikowski’s journey towards rehabilitation has been a long and hard-fought battle spanning from 2008. It has involved several relapses, but also a great deal of learning over a seven to eight year period. I also accept his evidence, that it is different for him now. He no longer experiences urges to drink alcohol or use drugs. Although there is always some risk that a person with addiction will relapse, I am satisfied that Mr Idzikowski has many protective factors which minimise his risk. He continues to be regularly involved, now as an office bearer, with AA and NA. He is volunteering to help other addicts. As well as reminding him of why he prefers being sober and clean, when he hears the desperation in the voices of those he assists, he has a sense of giving back to the community. He is receiving positive feedback about his ability to help others and about his study. He is passionate about his study.
- [60]His daughter is proud of him and he loves being sober. I accept that he has developed a good support network, including re-establishing closer ties to his family, from whom he kept his distance when acting on his addictions. He also uses other preventative strategies including ongoing self-development, meditation, reflection and mindfulness. Mr Idzikowki has developed a more positive view of himself. He now sees potential for him to assist others who are struggling to deal with addiction, including young people who may be heading down a path similar to his own. All of these factors supplement his earlier progress, to the point that he no longer has cravings to drink or take drugs.
- [61]I am also satisfied that Mr Idzikowski has demonstrated the ability to deal with multiple stressors without relapsing. I am satisfied that he suffered significant disappointment and stress when his blue card application was rejected. He is passionate about his study and intended area of work. Therefore, the rejection was a very significant stressor for him. However, he dealt with that, staying in touch with his supportive network and talking it through. During this period, he was also studying. Despite his passion for it, study involves deadlines and associated stresses. It is reasonable to infer that Mr Idzikowski has experienced stressors associated with his study.
- [62]Further, in his written submissions provided after the hearing, Mr Idzikowski disclosed that in December 2014, a close friend committed suicide and that in January 2015, his brother-in-law tragically drowned. He says that even though these events ‘shook’ him, he did not even consider drugs or alcohol. Submissions should not contain any new evidence, and on this basis, PSBA submits that the evidence about these stressors should not be given any weight.
- [63]However, in these proceedings, the role of the Tribunal is to produce the correct and preferable decision on the review based on the evidence and according to law. The new evidence supports the conclusions that I had already reached on the available evidence about his ability to cope with multiple stressors. On that basis, and given my impressions of Mr Idzikowski’s honesty and frankness, while acknowledging that the assertions have not been tested in cross-examination, I have considered the belatedly given evidence about these additional stressors. Although I give it less weight than the other evidence received, I accept it and have had regard to it.
- [64]In the circumstances that Mr Idzikowski has no convictions or charges for violent offences as an adult and no history of violence generally, I am satisfied that there is no risk that Mr Idzikowski will commit further violent offences in the future. I am satisfied that Mr Idzikowski is unlikely to relapse into drug and alcohol use, and therefore to have any further drug convictions.
- [65]In all of the circumstances discussed, I am satisfied that it is an exceptional case in which the best interests of children would not be harmed if a positive notice is issued to Mr Idzikowski.
- [66]Accordingly, the correct and preferable decision is to make orders setting aside the decision of PSBA and to issue a positive notice to Mr Idzikowski.
Footnotes
[1] QCAT Act, s 19(c).
[2] Ibid, s 20(1).
[3] Ibid, s 20(2).
[4] WWC Act, Schedule 7 ‘Conviction’ is defined to include a finding or plea of guilt, irrespective of whether a conviction is recorded.
[5] Ibid, s 167, Schedule 2.
[6] Ibid, s 225(1).
[7] Ibid, s 225(2).
[8] Ibid.
[9]Re: Imperial Chemical Industries Ltd’s patent extension petitions [1983] VR 1; Kent v Wilson [2000] VSC 98; and Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[10]Ax v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248.
[11]In the marriage of Sandrik (1991) 104 FLR 394, at [399-400].
[12]Schwerin v Equal Opportunity Board (1994) VR 279, at [287–288].
[13] WWC Act, ss 6 and 360.
[14]Grindrod v Chief Executive Officer, Department of Community Development [2008] WASAT 289.
[15]Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.
[16] WWC Act, s 226(2)(a).
[17] Ibid, s 226(2)(e).
[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[19] Relying on Commissioner for Children & Young People v Ram [2014] QCATA 27 at [46].