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DME v Department of Justice and Attorney-General[2019] QCAT 174

DME v Department of Justice and Attorney-General[2019] QCAT 174

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DME v Department of Justice and Attorney-General [2019] QCAT 174

PARTIES:

DME

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML259-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

3 July 2019

HEARING DATE:

17 June 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

  1. The decision of the respondent that the applicant's case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is set aside and replaced with the tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application.
  3. The decision of the tribunal is to be delivered to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – review of negative notice – review of a decision to issue a negative notice and cancel a Blue Card – where applicant has a criminal history without any serious or disqualifying offences – where the offences involve actual violence within a domestic violence context – where criminal offending spanned a period of 18 years – where the applicant had a long-standing history of drug and alcohol abuse – where the applicant unsuccessfully attempted rehabilitation 15 years ago – where the applicant has recently successfully completed rehabilitation – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Non-publication Order – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would disclose confidential domestic violence information – where to publish would be contrary to the public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Re TAA [2008] QCST 11

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

KJB v Director-General, Department of Justice [2018] QCAT 187

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Borger, legal counsel of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    On 13 August 2018, Blue Card Services (‘BCS’) issued a negative notice to the applicant, denying him a blue card based on the best interests of children and young people. The applicant applied to this tribunal for a review of the decision under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (‘the WWC Act’).
  2. [2]
    The applicant has been convicted of offences, but none of those were defined as a ‘serious offence’ in the WWC Act. Accordingly, section 221 of the WWC Act provides that a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice (emphasis added). The default position therefore is that the applicant should be granted a blue card. The decision of BCS was this case was exceptional and justified the refusal.
  3. [3]
    As is his entitlement, the applicant sought a merits review of the decision before this tribunal. At the tribunal hearing on 17 June 2019, it was common ground that the question for the tribunal to determine was whether this was an exceptional case. The applicant said it was not exceptional and the respondent said it was exceptional.
  4. [4]
    The tribunal has determined that the correct and preferable decision in this case, based on the evidence it has before it at this time, is that the decision of BCS must be set aside and replaced with the tribunal’s decision that this is not an exceptional case. In coming to its conclusion, the tribunal has carefully considered the merits of the case on its own facts. The tribunal has not considered any prejudice or hardship to the applicant in determining whether this is an exceptional case. The tribunal has considered this matter from the perspective of the protection of children.
  5. [5]
    The term 'exceptional case' is not defined. What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, having regard to ‘…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children’.[1]  The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people.[2] The WWC Act is to be administered under the following principles:
  1. (a)
    the welfare and best interests of a child are paramount;
  1. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
  1. [6]
    As the applicant had been charged with and convicted of offences, the tribunal considered the matters prescribed by section 226 of the WWC Act in determining that this is not an exceptional case. Section 226 is not an exhaustive list of considerations and does ‘not expressly or impliedly confine [the tribunal] to considering only the matters specified therein’, rather they are ‘merely certain particular matters which the [tribunal] is obliged to consider in deciding the application’.[4]

The applicant’s evidence

  1. [7]
    The applicant is 40 years old and had a happy upbringing in a stable family. His parents supported the applicant through his good times and bad, as did his younger brother with whom he remains close. The tribunal had the benefit of hearing from the applicant’s mother who provided a frank assessment of the applicant’s favourable and unfavourable attributes.
  2. [8]
    The applicant’s parents provided the applicant with love and compassion and encouraged him at an early time to be involved in his school, sporting events and community life. Whilst the applicant’s family was not wealthy, they provided him with a great deal of compassion, support and empathy. They instilled positive core values in the applicant including the importance of a work ethic and the difference between what was right and what was wrong. The family ethos was to always respect others, especially women and the elderly. Whilst at school, the applicant worked part-time.
  3. [9]
    For a long time, by his own admission and is evidenced by his criminal history and substance abuse issues, the applicant did not live a life based on the positive values that had been instilled in him from an early age. At age 15, the applicant experimented with the use of marijuana and alcohol. Unfortunately, he embraced the lifestyle associated with the use of drugs and alcohol and his circle of friends widened to those associated with the use and abuse of drugs. His circle of friends changed as he slowly descended into a darker personal space. By the age of 17, he was smoking marijuana regularly and growing marijuana in order to feed his habit. He became a troublesome teenager and his parents found it impossible to control him. His parents never abandoned him and tried to discipline him, but the applicant rebelled. He left school, left home and left the town where the family had lived for some time. By the age of 18 he was living independently in shared accommodation, using drugs and drinking alcohol. He quickly obtained work in the construction industry and held various labouring positions. With the income, and the extensive freedom that he enjoyed at the time, he started experimenting with harder drugs such as LSD, ecstasy and methamphetamines (speed). He worked hard during the week and spent his weekends in a drug and alcohol fuelled state. Given his youth, and fitness level, he was able to maintain some relative stability in his life. However, that did not continue for long.
  4. [10]
    The applicant started to move from place to place and due to his binge use of drugs and alcohol, and the adverse effects it had on his behaviours, he was not able to sustain healthy relationships. He began having trouble with the law in his early twenties and, by his own statements, all of his troubles related to issues to do with substance abuse. Alcohol became a greater problem for him than the abuse of illicit drugs. At this stage, he realised that he had a severe addiction problem. His family had not abandoned him, nor had his close long-term friends who urged him to seek professional help. He was unable to maintain his employment, girlfriends or his home life. The applicant became homeless and commenced living on the streets in Sydney.
  5. [11]
    In an attempt to break the cycle, when 25 years old, the applicant entered into a rehabilitation program at Sherwood Cliffs. He says that he learned a lot from that program and during the hearing the applicant introduced witnesses from that period who provided insight into his personality, lifestyle and addiction levels during this period of (attempted) rehabilitation. During the course of rehabilitation, the applicant began to learn some of the benefits of Cognitive Behaviour Therapy. Despite what the tribunal accepts as a genuine effort to do so, the applicant was unable to complete the program. He left the program prematurely because, by his own statements, he was naïve and despite professional advice to the contrary, he thought he was rehabilitated. He was still 25 years old when he left the program and he was at that time determined to disassociate with the use of illicit drugs, but he was not willing to give up the consumption of alcohol. In his mind at that time, to stop drinking alcohol would preclude him from continuing to mix socially with his workmates, peers and friends.
  6. [12]
    The rehabilitation was partially successful in that for a period of ten years the applicant had prolonged periods of abstinence from the use of illicit drugs. However, his addiction to alcohol continued and worsened. When drinking heavily, his behaviours became risky and reckless. Often, it was during these periods of intoxication from alcohol that he would succumb to the temptation to use illicit drugs, which he did intermittently. That coincided with a period when the street value of the crystal form of methamphetamine (ice) dropped and, as the drug became cheaper, he started to use it more often. However, he gave evidence, which the tribunal accepts, that he was not a long-term user of that drug. Whilst the applicant readily acknowledges that there were times where he binged on the use of ice, the primary concerns remained marijuana, and to a large degree, the abuse of alcohol. The applicant returned to his party lifestyle, particularly on weekends and by his own statements he would return to ‘hitting rock bottom’.
  7. [13]
    At the age of 35, the adult came to the further realisation that alcohol was predominantly the problematic drug for him. When using alcohol, his behaviours worsened to the point where he was antisocial and, in relation to those around him, potentially dangerous. He made the decision, as he had done when 25 years old, to disassociate from the use of intoxicating substances. This time, he resolved that he must disassociate from the use of alcohol, as well as illicit drugs. He sought counsel from his family, who despite everything that had occurred over a 20-year period, had remained supportive of him, though during that period were never encouraging of his lifestyle. With the assistance and support of his family, he entered into a rehabilitation program offered by Bayside Transformations in Hervey Bay. His offending had occurred almost up to his date of admission into the rehabilitation facility. To his considerable credit, the applicant successfully completed the program and after 15 months in the program, graduated from it in April 2016. In his life story, the applicant described the rehabilitation program as one of the most intense rehabilitation programs in the country. It was not easy for him to stay in the program and, particularly during the early months, he contemplated leaving the program.
  8. [14]
    The program of rehabilitation was very structured and intensive. He learned about anger management, communication and conflict resolution amongst other things. He adopted a philosophical approach, by understanding that there are things that might be beyond his control, to be dealt with as they arise. He also learned that he cannot control everything and everyone around him. During the hearing, the applicant spoke of some of the techniques that he learned during rehabilitation. One he described as ‘urge surfing’, which is where he acknowledges that urges will come and go (like waves) and that he must allow for his feelings to come and go, in the knowledge that such urges will pass. He spoke of learning boundaries and techniques to avoid temptation. During the hearing, when asked about these temptations and the struggles they present, the applicant gave evidence that it was very difficult for him to cope with temptation and urges during the first few months of the rehabilitation program. However, they are no longer the daily struggle they once were, and he has the resolve and the strength to deal with any urges that may confront him in the future. In response to questions from the legal officer for the respondent, the applicant said that he has had his resolve and strength tested completing his rehabilitation. For example, if he socialises with friends and they decide to ‘let their hair down’ he must avoid the temptation of joining them in the consumption of alcohol, which he does. However, he has not been offered drugs and he said if he was, he would refuse. In response to questions about past addictions, the applicant acknowledged that he still smokes cigarettes, which is something that he intends to work upon soon. However, he has other interests such as exercising, spending time with his family, and holidays. He sets himself goals, and he is willing to reward himself in an appropriate manner from time to time.
  9. [15]
    The applicant acknowledged that he used drugs and alcohol as a means of connecting with peers, who were, during the time that he was using drugs, a negative influence upon him. He may have been pressured by his peers or he may have pressured them, but either way he was using drugs extensively and that habit was fostered by his association with like-minded people. The applicant’s parents did their best to discipline him, but he rebelled. Having left home at an early age and living in shared accommodation with a good income it was easy for the applicant to fall into an alcohol and drug fuelled lifestyle.
  10. [16]
    Since he entered into the rehabilitation program, the tribunal accepts that the applicant has remained sober and abstinent from the use of illicit drugs and alcohol. He has obtained work within the community services sector where he provides support to men and women, young and old, in housing issues and addressing their addictions. In that regard, he has had success and witnesses have attested to his quality of service, empathy and reliability. He gave evidence that working with people who suffer from addictions provides him with a daily reminder of the life that he has successfully left and the need to remain abstinent and sober. To his credit, the applicant was successful in obtaining his current employment almost immediately following his graduation from the rehabilitation program, and he has remained in that employment since that time. The evidence to the tribunal was that his employers were made aware of his criminal history and past addictions when he sought employment. Without minimising any support that he may receive, the applicant said that he does not feel he has a need for a lot of support at work. He has other outside interests and supports, including his church, Bible studies, and his family and friends. He continues to socialise with those people who have also graduated from the rehabilitation program. The applicant said that faith is a big part of his life and he shares this belief with his wife. Whilst he has always had a spiritual belief, he acknowledged that he was not willing or able to live the life of his faith for many years. The applicant is not involved with children in the course of his employment.
  11. [17]
    The applicant gave evidence that he does not have an underlying mental health diagnosis or any recognised behavioural disorders. The applicant made these statements within the context of having engaged with counsellors, therapists and psychologists. That evidence was supported by the evidence of the adult’s mother and the adult’s wife.
  12. [18]
    The applicant said that he is remorseful and ashamed for his actions, describing the act of spitting at his ex-girlfriend as deplorable. His relationships with women in the past were dysfunctional and were associated with the abuse of drugs or alcohol. The applicant readily conceded that before rehabilitation he did not want to be with a partner who was unwilling to participate with him a drug and alcohol abuse lifestyle. By doing so, the applicant potentially shunned those people who might have been a positive influence on him. Since completing the rehabilitation program, the applicant has married a woman who shares his views in relation to abstaining from the consumption of alcohol and drugs. She gave evidence to the tribunal that he has remained sober. They are a positive influence upon each other. They married in 2018 after a stable long-term relationship of five years and they are both involved in church activities. They plan to start a family in the near future. The applicant said that he loves children, would never put children at risk, and his wife shared those sentiments by her evidence provided to the tribunal.
  13. [19]
    The applicant said that he has never committed offences which have been directed towards children or young people, nor has he ever harmed children. Whilst he regrets his offending, he says that all were committed under the influence of alcohol or drugs, and none committed in front of, or had a direct effect on, children. However, he correctly conceded that may have been a function of good luck rather than good management. The applicant does have contact with children. His brother has children, but he does not see them regularly. One of his friends has children and occasionally the applicant and his wife babysit for those children.
  14. [20]
    During the hearing, the applicant urged upon the tribunal that he has genuinely made long-term and sustainable changes in his life. He says that he has changed for the better permanently and he loves to reach out and help people as part of his employment. The applicant said he has learnt much since admission into the rehabilitation program and beyond. He has maintained positive supports and he describes himself as a person who is transparent and passionate. He also regards himself as empathetic, a mentor and a leader. The applicant wants to continue to develop his career in the community services sector. He currently works in community housing for adults, but his employer has a policy that all employees must have a blue card. Accordingly, for him to continue with his employment he must be successful in obtaining a blue card.

Domestic Violence and Offending

  1. [21]
    The applicant’s offending behaviour was significant, and often involved those people closest to him. For example, in mid-2006, the applicant was made the subject of an apprehended violence order to protect his parents. On a particular occasion, when the applicant was living with his parents, he returned home one evening carrying a large knife and put it on the table in front of his mother saying, ‘This is what they said I must do’. The father picked up the knife and the applicant said, ‘Give me the knife peacefully or I will take it violently’. The applicant took the knife and left, before he returned in the very early hours of the next morning, woke his parents, and commenced to act violently, including kicking their bedroom door and damaging the screen door to the balcony. Police were called, they arrested the applicant and they took him to the station. The applicant was under the influence of drugs and alcohol at the time and his father indicated to police that he was a regular user of ice during that period. Despite the evidence of a command auditory hallucination, the applicant was not diagnosed with any underlying mental health illnesses at that time or at any other time. However, the applicant had been admitted into mental health units in Sydney and Coffs Harbour. He described the admissions is voluntary based on his mental state caused as a result of a drug induced psychosis.
  2. [22]
    Later in 2006, the applicant was once again abusive towards his parents. The applicant was still residing with his parents at that time. One evening he was outside, and his parents could hear his raised voice. His father approached the applicant and encouraged him to return to the unit. The applicant abused his father who returned to their unit. Five minutes later the applicant came to the unit and was aggressive and abusive towards both his parents. He stood ‘in the face’ of both his parents and shaped up in a boxing stance before he spat in the face of his father. Police arrived soon after and found the applicant to be intoxicated by alcohol and potentially other substances. When arrested he was calm and cooperative with police. But shortly after being transported he resumed his aggressive behaviour, this time directed towards police. On 30 October 2006 a court placed the applicant on a good behaviour bond for twelve months, to be supervised by the New South Wales Probation and Parole Service. The bond was made under conditions, which were for him to obey all reasonable directions of probation and parole, particularly in relation to counselling, drug, alcohol and residential rehabilitation.
  3. [23]
    In 2012, the applicant was convicted of common assault. He and the victim had been in a domestic relationship for about eight months prior to the events and were residing in the applicant’s apartment. One day the applicant had consumed a large amount of alcohol. The applicant and his then partner engaged in a verbal argument. The applicant spat in her face before the complainant called the police. When arrested, the applicant was aggressive and intoxicated. The complainant supplied a signed statement of what had happened. She told police that she feared the applicant would harm her or kill her. She feared he would attend her workplace and intimidate her or her co-workers. Two weeks later, the applicant again became heavily intoxicated and offended against the same complainant. He threw her suitcases into a swimming pool two stories below their unit. He was charged with wilfully damaging the items and was convicted and placed on a good behaviour bond for two years. For breaching his domestic apprehended violence order, the court ordered him to complete 150 hours of unpaid community service.
  4. [24]
    In 2014, the applicant appeared before the courts on three separate occasions. On each occasion, he was charged with offences whilst he was in an intoxicated state. Those offences were urinating in a public place, obstructing police, possession of a dangerous drug and public nuisance. On the first occasion, as police were writing an infringement notice for his public urination, the applicant became aggressive and walked towards one of the officers in an aggressive manner. He raised his arms and snarled at the officer. The applicant was convicted for all charges and fined $750. A conviction was recorded. On the second occasion, police conducted a search of the applicant's vehicle, which had been left unsecured, and uncovered a clip seal bag containing less than one gram of a white crystalline substance. Later, police approached him and identified him as the applicant. When they announced themselves, the applicant turned to look at them, before fleeing into dense scrub at the rear of an industrial premises. The applicant continued to flee despite police calls to stop. The applicant was convicted for all charges and fined $750. On the third occasion, police were called to attend a men's hostel in South Brisbane because the applicant was causing a disturbance and threatening to fight people. The applicant had clenched his fist and had been challenging everyone present to fight him, while taking up a boxing stance. Police tried to speak to the applicant, who pushed away an officer and ignored questions. He was advised he was under arrest and began to wave his hand violently in the air, resisting arrest. The applicant was directed to stop obstructing police. He continued to violently struggle and was eventually restrained, handcuffed and placed in a police vehicle. The applicant was convicted for all of the charges and fined $150. A conviction was not recorded.
  5. [25]
    When asked about these incidents at the tribunal hearing, the applicant said that he could not recall, but does accept, all events. He was intoxicated by the consumption of alcohol on each occasion. In addition to issues around substance abuse, he gave evidence to the tribunal that he had suffered a traumatic brain injury in Sydney as result of being assaulted badly. The applicant believes that may have a bearing on his recollection of events.
  6. [26]
    The Applicant's most recent Queensland traffic history contains two infringements for driving a motor vehicle while under influence of liquor in 2014, four infringements for speeding in 2014 to 2015, and two entries indicating ‘interlock’ conditions that were placed on the Applicant in 2015. BCS expressed the view to the tribunal that this additional information raises concerns about the applicant's recent history of alcohol abuse, its effect on his driving and his ability to act appropriately in circumstances where the safety and wellbeing of others were at risk.

Witnesses and referees for the applicant

Referee - team leader of the shelter where the applicant works

  1. [27]
    This referee was not called to give evidence however provided strong support for the applicant by confirming that he was employed and was regarded as a valuable part of the team. The referee confirmed that the applicant had advised of his criminal history and substance abuse addictions in the past. Rather than regard those issues as a negative, they have proven to be of assistance to the applicant’s employer. The referee used these words to discuss the issue:

The clients are often drug or alcohol addicted, [the applicant] has been beneficial to our agency because of the addictions he had. I would not hesitate in saying he is one of the best workers I have had to train to fill the required position. [The applicant] has overcome his previous addictions, he is now a role model both within the community and in his role at [name of employer redacted]. I have found [the applicant] to be honest and respectful in the way he conducts himself, demonstrating compassion to the clients with whom he works with [sic]. [The applicant] has portrayed stability and reliability in all aspects of his work and proven to exhibit integrity in his affairs...

Referee – Director/manager, Bayside Transformations

  1. [28]
    This important referee was unavailable to give evidence. However, the information contained in her reference provided valuable, albeit untested, evidence for the tribunal.

...This is a letter of reference for [the applicant]. I have known [the applicant] for over three and a half years. It has been a privilege to watch [the applicant] transform over this time. [The applicant] spent an approximate 18 months within the Bayside Transformations Drug and Alcohol Rehabilitation Program in Hervey Bay, Queensland. When [the applicant] moved into his stage 4 program, he was placed into a leadership position. This involved being a House Supervisor looking after 24 men in recovery. This position involves mentoring, running groups, handling medication, and case management. [The applicant] achieved what few accomplish, completing all four stages of our program and graduating in 2016. Throughout the program, [the applicant] participated in many courses and he also had to put the course into application. The following issues are what Bayside Transformations teach and develop with the men and women throughout the program: Communication, Anger Management, Assertions, Consequential Thinking, Conflict Resolution, Distorted identity Course, Cognitive Restructuring, Recovery from Bitterness, Work Ethics, Inner Healing, Spiritual Welfare, Leadership Training, Self-Love and Nurturing, Self-responsibility and Task Management, Group Counselling Skills, Basic Management Skills, Office Reception Skills, Goal Setting and Boundaries and Recovery from Broken Relationships are some of the core units which are addressed within the program amongst those tailored to individual needs. While [the applicant] was in our program he proved himself to be a great leader, and someone who genuinely cares for others. I've watched him display integrity throughout his program, and he always addressed any behaviours which needed to be improved. He has since gone on to work for the past two years as a Shelter Worker supporting those experiencing homelessness assisting them, in addressing their behaviour issues, case managing and referring them to relevant support agencies. [The applicant] has recently been offered a position of promotion as Family Support Worker with his employer and continues going from success to success, strength to strength. He remains connected to our organisation and keeps himself accountable with the support he has in place. I have also recently been honoured to witness his marriage ceremony to a beautiful woman! Bayside Transformations is very proud of [the applicant’s] achievements and will continue to support his future plans.

  1. [29]
    The applicant provided a copy of a certificate issued to him on 24 April 2016, acknowledging his completion of the ‘Rehabilitation and Discipleship Program’ at Bayside Transformations. He also provided a photograph of a trophy also awarded to him for this achievement.

Referee – Pastor Bayside Christian Church (and Bayside Transformations) and Senior Pastor

  1. [30]
    This referee provided a reference.

I have known [the applicant] for the last 4 years. He has completed the Bayside Transformations 12 month rehabilitation program; graduating in April 2016. He has been actively involved in our church during this time, until recently when he moved to Maryborough for his work and he now attends a church in Tinana, Qld. I had the privilege of performing [the applicant’s] wedding on the 17th March 2018. [The applicant] is a man of reliable character and he has a caring heart for people in need. He is very trustworthy and hard working. I highly commend [the applicant] for his diligence in overcoming some difficulties in his life and now he is serving our community by helping and caring for others.

  1. [31]
    The positive information contained within that reference was reflected generally in a reference by a senior pastor of the church who spoke of the applicant as a person who is hard-working committed and of trustworthy character. Importantly, the pastor spoke of significant life changes that have taken place in the applicant’s life.

Referee – Psychologist and Director Clinical Services

  1. [32]
    This referee provided evidence of ongoing support services provided to the applicant.

This letter is to confirm [the applicant] has been receiving ongoing support services from this clinic. Upon finishing with Transitions [the applicant] exhibited excellent help seeking behaviours by attending his GP and seeking a Better Access Mental Health Care Plan (MHCP). [The applicant] has utilised the MHCP to expand on his support networks in the community. Initially [the applicant] attended the service regularly for 10 months. During the 10 month period [the applicant] remained stable and progressed at a healthy and steady rate towards his goals, As a result of his ongoing stable presentation, [the applicant] and his psychologist agreed he should be admitted to a maintenance Program whereby he now uses the service as needed with irregular check ins. Since engaging with the service [the applicant] has maintained stable employment, engaged in professional development, married girlfriend and has been heavily involved in his church and supporting others in need. Nil relapses are noted on his file. [The applicant] has consistently presented as open and honest about his past behaviours. He has significant insight into antecedents and triggers that lead to his previous substance abuse and associated lifestyle. Since being engaged in this service, normal life circumstances have placed him in high stress positions with completing life demands. [The applicant] has managed the situations rationally and demonstrated emotional control. There is nil evidence that he currently maintains cognitive distortions or maladaptive coping strategies that were present years ago when he succumbed to addictions. [The applicant] remains a client of this clinic and we look forward to providing support to him as needed as he continues to progress and obtain his life goals.

Referee and referee/witness – drug and alcohol counsellor

  1. [33]
    This witness joined with her husband in providing a written reference in support of the applicant.

[We] have known [the applicant] over a period of 15 years. Our first meeting was at 'Sherwood Cliffs', a drug and alcohol rehabilitation farm in NSW, where I worked as a staff member. [The applicant] was a resident of this program. He was a cooperative, likable hardworking individual who earnestly undertook the program to overcome addiction. [One of the referees] currently works as a drug and alcohol counsellor with Bridges Health & Community Care and has a professional relationship with [the applicant] as they share clients in common. [We] early this year had the pleasure of attending [the applicant]'s wedding and have witnessed him settling happily into married life. [The applicant] continually demonstrates a caring heart for those less fortunate and works in the social services sector assisting men and families in housing crisis situations. He demonstrates a great deal of empathy towards those he supports, having himself battled past addiction and having prior criminal charges including assault and domestic violence. [The applicant], we believe has worked earnestly to better himself and in recent years has acted as a positive role model, an example of someone who has triumphed over major life challenges. [The applicant] has developed a support network that includes members of the community, the local church he attends with his wife, as well as close personal friends. [The applicant] in [our] opinion is an upstanding member of the Fraser Coast Community, respected as a professional in the Housing Industry where he is employed and highly regarded.

  1. [34]
    The witness confirmed the information contained in her joint reference during the hearing and the content was appropriately tested. The witness gave evidence to the tribunal that she had not seen the BCS ‘rejections reason’ document but was aware that the applicant had a criminal history as a result of his disclosures. She indicated that they currently have contact with each other two or three times each month in the course of their professional relationship where they share mutual clients. The applicant supports people with housing issues and often refers his clients to her for professional counselling. She gave evidence that the applicant has worked earnestly towards bettering himself and in recent years has acted as a positive role model. Clients give glowing reports about how he has helped them. She said that the applicant has developed a support network that includes members of the community, the local church where he attends with his wife, as well as close personal friends. They have been to the same church. She has seen him interact well with children. She has not seen him consume any alcohol or illicit drugs since he was admitted into the rehabilitation program.

Referee – psychologist

  1. [35]
    This referee provided information to the tribunal about the psychotherapy assistance sought by the applicant during, and after, his attendance at the rehabilitation centre.

[The applicant] initially attended psychotherapy with this service on the 18th of January 2016 while he was completing his final stages in the transformations program. [The applicant] engaged well in the therapeutic process and always endeavoured to transfer the skills being developed in the sessions into his daily life. On completion of the program at Transformations, [the applicant] continued with psychotherapy with this service until November 2016 when he had completed his session allowance through Medicare. During this time [the applicant] had moved to Maryborough and was using public transport to get to Hervey Bay for his sessions. After some discussion with [the applicant] he asked for a recommendation for a psychologist that he would be able to transfer to in Maryborough so that he could continue with his psychological and emotional growth. During [the applicant]'s time in therapy with this service he had been able to demonstrate abstinence from drug and alcohol even after leaving transformations and was able to identify any risk factors for himself so that he was well able to mitigate risk. [The applicant] demonstrated the renewed strength of character that emerged through the rehabilitation by being able to maintain sobriety during periods of stress as he integrated back into the work force and managed to be diligent in his work attendance although he had no personal transportation. [The applicant] had established a goal for his future which he has been continuing to work toward. [The applicant] always presented as a genuine and considerate person. He has learnt to take responsibility and desires to continue to lead a productive and authentic life according to his faith values.

  1. [36]
    The applicant unsuccessfully attempted to call the psychologist to give evidence at the tribunal hearing. While the tribunal would have benefited from having the evidence tested, the information contained in the reference is of considerable assistance to the tribunal and demonstrates the extent to which the applicant has remained committed to positive change.

Referee and witness – coordinator of support services for community housing where the applicant works

  1. [37]
    This witness provided a written report and gave evidence.

I have known [the applicant] on a professional basis since March 2017. 1 am currently the Coordinator for the support services provided by [a community housing organisation] and have been managing [the applicant] during this time. I am aware of [the applicant]'s criminal history and substance misuse background due to the police check required for the position [the applicant] was initially employed for [a community housing organisation]. The person I have known since March 2017 does not reflect the details provided on the police report. [The applicant] is one of the top staff members within the two crisis accommodation teams who has proven to be reliable, remains calm in volatile situations and is an excellent advocate for clients experiencing homelessness and issues contributing to homelessness. Due to [the applicant’s] work ethic and his drive to see others succeed he was offered a position within the Family Accommodation Service at [a community housing organisation] with the awareness of his criminal history. I have been managing the Family Accommodation Service since March 2017 and felt [the applicant] would be an asset to the team. I have no concerns at all that [the applicant] would or could be a threat to anyone, particularly a child or a female. I believe if [the applicant] successfully obtained a positive blue card it would give him an opportunity to excel in his career to assist many others trying to get their life back on track.

  1. [38]
    This witness provided evidence to the tribunal and indicated that she has seen the applicant remained calm when dealing with frequent stressful situations. She has seen him interact with children and he is comfortable and nonthreatening. She has not seen the applicant take alcohol or drugs and she has seen the reasons document.

Referee and witness – quality and safety advisor for community housing where the applicant works

  1. [39]
    This witness provided a written report and gave evidence.

I am providing this letter of support for [the applicant] in the full knowledge and understanding of its purpose and intended use. I am also aware of [the applicant]'s police history as he provided full disclosure at the commencement of his employment. I have known [the applicant] since November 2016 when in my former role as National Housing & Homelessness Operations Officer for [a community housing organisation] I worked with the Maryborough team to restructure our operations being delivered not only through the [name withheld] Men's Shelter where [the applicant] worked but also the services delivered through our office in Maryborough. During the time I have worked with [the applicant], he (has) shown to be highly professional, dedicated and punctual and demonstrated a high-level of empathy and understanding for those most disadvantaged in our community. I have no doubt [the applicant]'s empathy and understanding is a result of his own life experience and, it is through this lived experience that he provides the high levels of understanding, advocacy, support and direction to the many clients who resided at the refuge. Yes, [the applicant] has a chequered past but this past does not define the man he is now.

  1. [40]
    This witness provided evidence to the tribunal and said that in his current position, as national manager with 270 staff in his organisation (including the applicant), he has personally observed the applicant as a professional person with good interpersonal skills. He confirmed that the applicant did include his criminal history when applying for the position and he is aware of his history, which includes domestic violence as part of the offending. He is aware that a blue card is fully transferable but has no concerns about the applicant working with children even though he has not seen the applicant interact with children on many occasions. The witness did say that he has seen the applicant in a social setting and has not seen the applicant drink alcohol or take drugs.

Referee – the applicant’s parents and witness – the applicant’s mother

  1. [41]
    The applicant’s parents prepared a joint reference (below) and the applicant’s mother supplemented that information by providing direct evidence at the tribunal hearing.

As the persons identified in the contravene apprehended domestic violence order (DVO) dated 12th of August 2006 we would like to make the following submission on [the applicant’s] behalf in full knowledge of his criminal and substance abuse history. We wish to assure the board that it is our firm belief that [the applicant] of today in no way resembles the person to whom the DVO was addressed. In the ensuing years [the applicant] has spent many years in addressing his addictions. He completed a most demanding 16 month program with Transformations, graduating in early 2016. He has since turned his life around & has been drug & alcohol free. He has been in a stable relationship for the last four years, his partner being the impetus and the support required for his personal transformation. They married in March 2018. He has been in stable employment since April 2016 & has recently been promoted within the organisation due to his dedication & leadership qualities. Hence his application for the Blue Card. [The applicant] is in all senses of the word rehabilitated. As parents we are convinced personal insecurity & career dissatisfaction were the main triggers to his addictions. These issues are demonstratively overcome. Addressing his addictions & walking his path in life as he has so bravely done gives him an empathy & understanding that can seldom be found without experience. He is wonderful with children, having two nieces & is looking forward to starting a family of his own. He has the belief & support of both his parents which we hope will assist in your deliberations.

  1. [42]
    The evidence of the applicant’s parents, and in particular his mother, is powerful and highly probative. She candidly spoke of the applicant’s shortcomings through drug addiction and the abuse of alcohol. She frankly discussed the issues that led to the imposition of a domestic violence order in favour of her and her husband. She said that the applicant expressed a lot of aggression and anger and as a result of his actions at that time they felt intimidated. They reached out for the assistance of police. In relation to the admissions to the mental health unit, she gave evidence to the tribunal that supports the suggestions made by the applicant that he has no underlying mental health illness by saying that she does recall the admissions to the mental health unit but they were quick – just a few days – with no ongoing concerns specifically in relation to those matters. She said that the applicant maintains his Christian beliefs and is married to a supportive woman who does not drink alcohol. The applicant is in a stable loving relationship. He has gained the respect of his peers and the applicant is forward focused. She has no concerns that he will once again ‘fall off the wagon’. When questioned about her statements, she indicated that her son is not the same person he once was, and the change is long-standing and positive. They have no concerns about reoffending, and she does not believe that there is any need for ongoing professional care as the applicant is rehabilitated.

Referee and witness – the applicant’s wife

  1. [43]
    The applicant’s wife provided a reference and gave evidence at the tribunal hearing. She met the applicant when he was still addicted but gave evidence that he indicated to her that he wanted to meet a Christian woman who does not have an association with drugs or alcohol. He was honest with her in terms of his history of domestic violence and the use of alcohol and drugs. However, he said he wanted to proceed through rehabilitation and leave that life behind him. He was respectful, honest and transparent. She said that she has seen the applicant interact with children in a positive way and since going into rehabilitation she confirmed that she has not seen the applicant consume alcohol or take drugs. She spoke candidly about those times where they disagree as a couple and she said that the applicant had developed strategies to remain calm. In short, the witness was highly supportive of her husband. Her reference contained the following information:

My name is [name withheld] and I am happily married to [the applicant]. [The applicant] and I met at Christian dating site in late 2013 and developed a friendship in 2014. As the friendship developed, we were considering entering into a relationship. [The applicant] was honest about his struggling with some of his addictions and made the decision to enter into Bayside Transformations Drug and Alcohol Rehabilitation. After [the applicant] completed the program in early 2016 we decided to enter into a serious relationship. On Valentine's Day 2017 [the applicant] proposed to me and we both made the decision to get married. On March the 17th 2018 we married and have been happily married since. I am very proud about what my husband has achieved and the person he has become. He is a man of integrity and honesty with compassion and love for others. He has always displayed the attributes of love to me throughout our relationship. We are in a very happy and loving relationship. We are both Christian and share a strong faith in God. We do not just regularly attend Church, but also contribute in its ministry. Neither of us drinks alcohol and we do not socialize with people who do. It is not a part of our lifestyle in any way shape or form. I am aware of [the applicant’s] past and the different criminal offences which he has made. This is certainly not the man whom I am married to. I am extremely proud that this man has overcome his addictions and has not relapsed into his previous addictions. [The applicant] has accomplished four and a half years of successfully overcoming his addictions, fast approaching five. [The applicant] has every support possible in place and continues to keep himself accountable and transparent. My husband amazes me with his strength and character, and I struggle to imagine him having the history his police record shows. My husband has overcome his addictions, is now in a loving and functioning marriage and is developing a career in which he has been successfully helping change the lives of others. I have no doubt my husband will only continue to go from strength to strength and I am excited about our future together.

  1. [44]
    The tribunal considers the evidence of the applicant’s wife as highly probative.

The respondent’s position

  1. [45]
    In rejecting the applicant’s request to be issued with a blue card, and at the hearing, the respondent expressed concern about the applicant’s offending and alcohol and drug-related history. The respondent’s submission included the following statements:
    1. (a)
      The applicant's offending has been committed over an extended period of about 18 years, from 1996 to 2014.
    2. (b)
      The long-term and repetitive nature of the applicant's offending is a risk factor.
    3. (c)
      The recency of his drug-related offending is a further risk factor, especially in the context of his historical offending.
    4. (d)
      In the context of the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children, the respondent included the following statements in its reasons document:[5]

There are a number of highly-concerning incidences of offending which appear throughout the applicant's criminal history. These include a series of domestic violence offences in 2012, and public order and drug-related offending in 2014. In three incidents in 2012, the applicant breached domestic violence orders and committed actual physical violence against others, including his then-partner. This included the applicant being verbally abusive towards, intimidating, and spitting on complainants. These offences occurred while the applicant was intoxicated by alcohol. In 2014, the applicant committed a number of public order offences, obstructing and resisting police attempts to lawfully deal with him. On different occasions the applicant also behaved aggressively towards others at a men's hostel and was found to have possession of the dangerous drug methylamphetamine while fleeing from police. These offences suggest that the applicant may have difficulty with managing his emotions and dealing with conflict without violence, and demonstrate a lack of respect for the law, police and court orders. The evidence indicates that the applicant may have resorted to polysubstance abuse as a coping strategy, through the excessive consumption of alcohol and possession of illicit drugs. The applicant's history of such offending is adverse to his eligibility to be entrusted with children in the future where such behaviours would present as contrary to their best interests, and may impair his capacity to provide for their care, and physical and emotional wellbeing.

  1. [46]
    In considering whether an exceptional case exists, and concluding that in this instance it does, the respondent came to this conclusion for the following reasons:[6]

The applicant's offending relates to violent, antisocial and drug-related behaviour over the course of an extended period of time. The applicant committed his earliest offence at the age of 17 and his pattern of offending behaviour continued well into his adulthood, with his most recent offences being committed in 2014. His offending has involved verbally abusing, intimidating and spitting on others, including his partner, during domestic disputes. It also involved destroying property and generally exhibiting controlling and abusive behaviour while intoxicated. More recently, he had been found in possession of methylamphetamine, defined as a schedule 1 drug by the Drugs Misuse Regulations 1987, which illustrates the seriousness of the applicant's involvement in this aspect of drug culture. His lifetime of offending raises significant concerns for his eligibility to work in regulated employment.

The applicant's police material indicates that he has been subject to domestic violence orders. To make a domestic violence order (except if by the consent of the respondent), the court must be satisfied that the respondent has committed domestic violence against the aggrieved and that the order is necessary or desirable to protect the aggrieved from further domestic violence. This suggests that the court considered it appropriate in the circumstances to ensure the complainant's protection with an enforceable order, which raises concerns for further domestic violence that may have occurred in the applicant's household prior to the order being granted. This is a particularly important risk factor, given the applicant’s partner’s statements that she feared for her life due to the applicant's behaviour.

The material before me demonstrates that the applicant was involved in methylamphetamine use. The psychological, medical and social consequences of methamphetamine use are devastating to the community and the individual user. The risks and consequences to the long-term user of methylamphetamine, include psychosis, mental illness, aggression and violence. Methylamphetamine use also imposes significant demands on the healthcare system and result in increased risk for front-line law enforcement and health care workers. Of most significance, children in the care of methylamphetamine users are at risk of neglect, exposure to dangerous chemicals and illegal activities.

Children have a right to be protected from exposure to drug involvement and to be cared for by persons who are not using drugs that may impair their ability to promote and protect children's best interests, This includes the right to be cared for by individuals whose ability to provide a safe environment for them is not compromised by the excessive consumption of legal drugs like alcohol. Continued offending related to polysubstance abuse would be likely to detract from the applicant's ability to provide a protective environment for children in his care and be an appropriate role model to them.

The applicant provided a submission in support of his eligibility. I have considered these carefully, and I take into account the following factors in his favour.

The applicant explained how he began using drugs and alcohol at a young age, and developed a pattern of such behaviour into his adulthood. This affected his ability to function normally which he believes led to his offending. In response to this, the applicant attended Bayside Transformations for 16 months to address his substance abuse. He had evidenced this with images of a certificate and trophy given to him for completing his rehabilitation.

The applicant provided details of his therapy and rehabilitation at Bayside Transformations, including the skills he has learnt to address his addiction. He believes that this has helped him not only to deal with his own problems but also to help others deal with similar issues. This may suggest that the applicant has developed appropriate coping strategies and exposure to stressful or traumatic circumstances has not caused him to re-engage in concerning behaviour.

The applicant has further explained his current work in assisting other men who experience similar issues as he did during his addictions. His work in this field is supportive, as it indicates that he has a good understanding of his own problems to the extent that he can pass on that understanding to others.

I acknowledge the applicant's submissions, and the positive steps he has made towards recovering from his history of substance abuse. While I appreciate that the applicant has made significant steps towards addressing his triggers long-term, I still have the following concerns:

The applicant's criminal history spans 18 years, which includes a gap in his offending of around seven years, from 2006 to 2013. This gap came after concerning domestic violence offending, and a probation order which required the applicant to address his triggers through rehabilitation. Despite this, he reoffended in 2013 and continued until approximately four years ago. He has since undergone further rehabilitation. This raises concerns that the applicant's triggers to offending may resume if he is again subjected to similar stressors.

I note the applicant's submission that he no longer suffers from addictions since his rehabilitation. I am concerned that, given the highly addictive nature of methylamphetamine and the applicant's nearly two decades of alcohol abuse, that he may continue to be vulnerable to relapse, Further, he has provided no evidence of recent and ongoing treatment which may demonstrate that he is managing the lifetime effects of his alcohol and substance abuse.

The applicant was living in a communal rehabilitative space for an extended period, and has been re-engaged with wider society for only 28 months. He has previously reoffended after a seven-year gap with rehabilitation. Therefore, in my assessment insufficient time has passed for me to be satisfied that these positive changes will be maintained.

The applicant provided a reference from the Team Leader at his men's organisation. [Name withheld] has expressed positive sentiments regarding the applicant's abilities as a support worker for drug and alcohol addicted clients, in part due to his lived experience with similar problems. She also speaks favourably regarding the applicant's general good character and reliability. It is not clear to what extent [Name withheld] is aware of the applicant's criminal history, including his violent offending, and for this reason the weight I place on this reference is somewhat limited.

The applicant provided a further reference from the Director at Bayside Transformations. [Name withheld] working directly with the applicant through his rehabilitation over 18 months. Her reference is highly favourable to the applicant, as it provides a firsthand appraisal of the applicant's successes in the program, and praises his leadership skills, passion and integrity which arose over his time at Bayside Transformations, However, [Name withheld] does not declare knowledge of the applicant's offending and I cannot assume such knowledge, despite her role in the applicant's rehabilitation. As with the applicant's other character reference, this limits the weight I attribute to Ms Davies' comments.

I understand and appreciate that without a positive notice the applicant's ability to engage in future social work may be limited. However, my paramount consideration is a child's entitlement to be cared for in a way that protects the child from harm and promotes the child's wellbeing. The ultimate issue in making my decision as to whether an exceptional case exists is whether the issuing of a positive notice would not be in the best interests of children. Any hardship or prejudice suffered by the applicant of such a determination is irrelevant to this consideration.

The effect of issuing the applicant's blue card is that the applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just the purpose for which the applicant has sought the card. Further, there is no power to issue a conditional blue card, for example requiring the applicant to be supervised. Once issued, the blue card is fully transferable across all areas of regulated employment and business.

The respondent’s submissions at the tribunal hearing

  1. [47]
    The respondent prepared written submissions in support of his request that the tribunal conclude that this is an exceptional case. The relevant parts of the submission are reproduced below.

Relevant risk and protective factors arising from the written materials filed in the proceedings

The Court of Appeal in Maher accepted the approach of identifying and balancing the relevant 'risk' and 'protective' factors arising from the circumstances of a particular case.[7] The Respondent submits that the weight to be applied to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.

Protective factors

The Respondent submits that the following protective factors are relevant in this matter:

  1. a)
    the Applicant has completed a drug and alcohol program with Bayside Transformations in Hervey Bay in April 2016;
  2. b)
    the Applicant expresses regret and remorse for his behaviours of concern;
  3. c)
    the Applicant states he was married in March 2018 and has been in the stable relationship for more than five (5) years;
  4. d)
    the Applicant states he has two (2) nieces who have given him an understanding of the responsibilities associated with caring for children and young people; and
  5. e)
    the Applicant has provided nine (9) supportive witness statements, including a letter from psychologist [Name withheld], which speak to the Applicant's drug and alcohol rehabilitation, his support network and work ethic.

Risk factors

The Respondent submits that the following risk factors are present:

  1. a)
    the Applicant's criminal history spans 18 years from 1996 to 2014 (with traffic history from 1999 to 2015);
  2. b)
    while he began offending as a youth aged 17, he continued offending until he was a mature aged 36 year old;
  3. c)
    tthe Applicant's criminal history is characterised by alcohol and drug related violence and anti-social behaviours where he has responded to conflict inappropriately and terrorised family members and others who have feared for their safety. His criminal history is of direct relevance to his eligibility to work with children where situations of conflict are expected to occur, either with children or in the presence of children. The Applicant's offending behaviours also suggest he may present as a poor role model to children and young people in his care;
  4. d)
    the Applicant submits that his illicit drug use began with experimentation in his teens (aged 15 years) and he developed a dependency in his "late teens and early adult years". The Applicant's submissions suggest his history of substance abuse was lengthy, regular and varied,' and is not accurately reflected by his criminal history. Further, the timeframe during which he has been free from substance abuse is relatively short (3 years) compared to the many years (22 years) he was apparently drug and alcohol dependent;
  5. e)
    while the Applicant has completed drug and alcohol rehabilitation, he has only done so recently (April 2016). On the completion of the rehabilitation he appeared to have immediately started working with Good Hope Men's Service' homelessness team whose clients are described as being "often drug or alcohol addicted'. He appears to have worked with the service in the following two years as a shelter worker. So while he may be described as a 'role model’ for other adults with substance abuse, it appears the Applicant has been surrounded by this supportive community since his rehabilitation and has therefore not had the opportunity to demonstrate he can act independently and remain substance-free outside such a supportive environment. This will be further explored at hearing;
  6. f)
    the Applicant submits that between his criminal convictions he had lengthy periods of sobriety where he managed to give up drugs. The sporadic pattern of the Applicant's offending behaviour, coupled with his extensive alcohol and drug use, raises concerns about his risk of relapse and recidivism into the future. The steps and strategies the Applicant has in place to prevent reoffending will be explored during the hearing;
  7. g)
    in his life story the Applicant states "I have no mental health diagnosis or any recognized behaviour disorders" however a hand-written note on material from the Coffs Harbour Local Court indicates that the Applicant in June 2006 was a patient at the local mental health unit. This hospital admission appears to be around the time of his behaviours of concern and the breach of apprehended domestic violence order. While the Applicant has provided a four (4) paragraph letter from psychologist [Name Withheld], there is no independent health report to assist the Tribunal understand if the Applicant's mental health was a trigger for his offending behaviours and whether it remains an issue. The Applicant's history of mental health and its relation to his behaviours of concern will be explored at hearing;
  8. h)
    notwithstanding the Applicant's expressions of remorse and regret for his past behaviours, his submissions as a whole are devoid of any comment on the impact of his anti-social behaviours and violence on the victims who were subjected to his violent outbursts, and on any witnesses who observed such behaviours. Further, while the Applicant recounts his years of drug and alcohol addiction and its impact on him personally, he does not speak to the adverse impact of those addictions on children and society as a whole. Nor does he speak to any understanding of the risks associated with someone under the influence of drugs or alcohol caring for children. Indeed, the Applicant appears to minimise his offending behaviour by excusing his behaviours as not being "child-related'. The Applicant's material therefore demonstrates only limited insight into the impact of his offending and drug use on those around him. The importance of an Applicant possessing insight as a protective factor is demonstrated in the published decision of Re TAA,[8] where the former Children's Services Tribunal stated:

"The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children."

The Applicant's insight will be explored further at the hearing; and

  1. i)
    the Applicant submits that he wishes to obtain a positive notice and blue card so that he may study and work as a counsellor or support worker in drug and alcohol rehabilitation. However, the effect of issuing the Applicant's blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just for the purpose for which the Applicant has sought the card. For this reason, the Tribunal must take into account all possible work situations open to the Applicant. The Tribunal has no power to issue a conditional blue card and once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.

The tribunal’s conclusion

  1. [48]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme, ‘...to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[9] The tribunal decides that application on the balance of probability, bearing in mind the gravity of the consequences involved.[10]
  2. [49]
    In considering matters of this nature, the tribunal must, and in this case did, take a precautionary approach to decision-making. The tribunal has determined that the substance abuse, domestic violence and criminal/traffic history is not an impediment to the applicant in pursuing his blue card application. Whilst the tribunal acknowledges that it is inherently impossible to predict future risk with certainty, and that past behaviours are an indicator of future behaviour, the tribunal is impressed by the level of positive action taken by the applicant for rehabilitation. The tribunal looks to the more recent, rather than the historic, behaviours as more significant in determining likely behaviours in the future. The applicant’s criminal history is poor, but he has taken a significant positive change since his enrolment and graduation from Bayside Transformations.
  3. [50]
    The tribunal does acknowledge the transferability of notices under the WWC Act when determining the best interests of children. The tribunal acknowledges and accepts that the holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. Whilst no matter of this nature for determination by the tribunal can be risk-free, the risk factors identified in these proceedings do not render the case an exceptional case.
  4. [51]
    The applicant does have an extensive history over a lengthy period, but that does not mean that the history will continue. The tribunal is of the view that the criminal history is directly related to the abuse of alcohol and illicit drugs. The same conclusion applies in relation to issues around domestic violence. The tribunal is satisfied that the applicant has taken effective steps towards rehabilitation and has received the benefit of professional assistance. The applicant has instances of deplorable past behaviours, but his current behaviours, including his commendable work ethic, are a positive indication as to his likely future behaviours. The applicant has addressed his substance abuse problems in a very effective manner, and over a lengthy period he has demonstrated sustained commitment to positive change. The applicant has effectively sought out and obtained the professional assistance and support that he needed to overcome his long-term substance abuse problems. The applicant has completed an extensive drug and alcohol program with Bayside Transformations. That has proven to be highly effective in rehabilitation of the applicant. The applicant has expressed remorse in a meaningful and insightful manner. The applicant has not minimised his past behaviours. The applicant has identified and addressed the triggers that have caused him to offend against those around him in the past. He has demonstrated an ability to work through issues that may be stressful without resorting to the use of alcohol or drugs. He is married and in a supportive and stable relationship that is now long-standing. He is a person who has the capacity to care for children and young people in a responsible manner.
  5. [52]
    The applicant’s behaviours have caused those around him to be fearful of him and to involve police to assist them. His parents have been the direct victims of his behaviours. The applicant’s mother’s evidence regarding the applicant’s current circumstances and behaviours, which confirm the positive changes, is highly probative. The concerns raised by the respondent relating to the mental health issues of the applicant are not evident. The applicant has a great deal of quality support in his life. The applicant has become a positive role model who has repaid the faith of those around him by his determination and perseverance.
  6. [53]
    In concluding that this is not an exceptional case, the tribunal has identified and balanced the relevant risk and protective factors in this case. The tribunal had the benefit of having witnesses, including the applicant, before it so that it was in a position to make a more detailed assessment of the evidence than could BCS. That said, this is not a review of the decision made by BCS. The tribunal considers the matter afresh, on its merits, based on the evidence presented to it at the hearing.
  7. [54]
    The decision of BCS must be set aside and replaced with the tribunal’s decision that this is not an exceptional case, within the meaning of s 221(2) of the WWC Act. The publication of information that may identify the applicant and any witnesses appearing at the application is prohibited given that the evidence includes information around domestic violence issues. To publish this information would be contrary to the public interest.[11]

Footnotes

[1]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 31 (citing Kent v Wilson [2000] VSC 98, 122 (Hedigan J)).

[2]  WWC Act s 5.

[3]  Ibid, s 6.

[4]  Per Philippides J in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, applying section 102(5) of the CCYPCG Act (prior to relevant amendments and renumbering of the CCYPCG Act in 2010).

[5]  BCS Statement of Reasons dated 13 August 2018, [5.4].

[6]  Ibid [6].

[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[8]Re TAA [2008] QCST 11 (97).

[9]WWC Act, s 5(b) and see WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17] (Thomas J); WWC Act, s 6; KJB v Director-General, Department of Justice [2018] QCAT 187.

[10]  The test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

Close

Editorial Notes

  • Published Case Name:

    DME v Department of Justice and Attorney-General

  • Shortened Case Name:

    DME v Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 174

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    03 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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