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Williamson v Director-General, Department of Justice and Attorney-General[2019] QCAT 307

Williamson v Director-General, Department of Justice and Attorney-General[2019] QCAT 307

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Williamson v Director-General, Department of Justice and Attorney-General [2019] QCAT 307

PARTIES:

ROBERT JAMES WILLIAMSON

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO:

CML062-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

16 October 2019

HEARING DATE:

25 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Sheean

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening Act) 2000 (Qld) is confirmed.
  2. 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 – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where convicted of offences other than a ‘serious offence – whether the Applicant’s case is an ‘exceptional case’

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, Schedule 2

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Gindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1

Re TAA [2006] QCST 11

The Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 491

TNC v Chief Executive [2015] QCAT 489

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

APPEARANCES

& REPRESENTATION:

Applicant:

Self-represented

Respondent:

V Wolfe, legal officer of the Director General,  Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    Robert James Williamson is a 50 year old man with two adult children.  He works in the disability sector as a disability support worker.
  2. [2]
    Mr Williamson applied to be issued with a positive notice and blue card for child-related employment.  After considering police information relating to Mr Williamson and submissions made by him, he was issued with a negative notice on 22 January 2019.
  3. [3]
    Mr Williamson seeks a review of that decision.
  4. [4]
    Mr Williamson has a short criminal history, comprising of two convictions for drug related offences.  He also has some traffic history, including a charge of driving while relevant drug is present.  However, because none of the offences are serious offences under the legislation, Mr Williamson is entitled to receive a positive notice and blue card unless it is considered that his is an exceptional case such that it would harm the best interests of children for him to have a positive notice.[1]
  5. [5]
    The Tribunal conducts a review of the merits of the Director’s decision by way of a fresh hearing.[2]  The Tribunal needs to apply the same law as the Respondent as well as the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  The Tribunal must take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).  This section outlines what the Tribunal is required to consider in deciding if an exceptional case exists, but it is not an exhaustive list of considerations.[3]
  6. [6]
    The purpose of the review is to produce the correct and preferable decision.[4]
  7. [7]
    The WWC Act does not define “exceptional case”.  As the Tribunal in its appeal jurisdiction said in Commissioner for Children and Young People and Child Guardian v FGC[5] 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. [8]
    Each case is to be considered on its own facts.  As Fullager J stated in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions:[6]

“… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion.”

  1. [9]
    Prejudice or hardship to an applicant are not relevant in determining whether a case is exceptional.[7]  Neither is the benefit which might be thought to flow to children by having access to an applicant’s knowledge, experience or flair in working with children relevant.[8]
  2. [10]
    To be exceptional the case needs to be out of the ordinary, unusual or special.[9]
  3. [11]
    I need to consider the individual circumstances to determine if an exceptional case exists.  I have discretion in this regard, taking into account the legislation and the circumstances.
  4. [12]
    The question of whether or not an exceptional case exists is determined on the civil standard of proof, that is, the balance of probabilities, bearing in mind the gravity of the consequences involved.[10]
  5. [13]
    Neither party bears an onus in determining whether an exceptional case exists.[11]
  6. [14]
    The WWC Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland.  I also have regard to sections 5, 6 and 360 of the WWC Act.
  7. [15]
    A child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
  8. [16]
    Blue cards are given without condition so if Mr Williamson is successful in this review, he could work in any area of child related employment, whether supervised or not.

Circumstances of the Charges

  1. [17]
    Mr Williamson’s criminal history comprised convictions on two occasions, the first in 2008 and the second in 2017.
  2. [18]
    In April 2008, Mr Williamson was convicted of possessing dangerous drugs, possess utensils or pipes etc. that had been used and possess property suspected of having been used in connection with the commission of a drug offence
  3. [19]
    The second conviction in June 2017 was for the same offences. 
  4. [20]
    The drugs involved were cannabis and methyl amphetamine, although only very small amounts of methyl amphetamine – 0.5g in 2008 and residue only in 2017.
  5. [21]
    Mr Williamson entered a plea of guilty on both occasions.  On the first occasion, he entered into a recognisance of $150 and to be of good behaviour.  On the second occasion, Mr Williamson entered into a $650 recognisance on his own undertaking and was ordered to be of good behaviour for a period of 9 months.  He was also ordered to attend drug diversion.  On both occasions, no conviction was recorded.
  6. [22]
    Mr Williamson’s traffic history mostly comprised of speeding but there was also one entry for driving while relevant drug is present.  This entry related to his second conviction on drug related charges in 2017.

The Applicant’s Case

  1. [23]
    Mr Williamson gave evidence and called 3 witnesses in support – a psychologist, his brother-in-law, and a friend.
  2. [24]
    His psychologist, Mrs Sweeting, gave evidence that she had commenced seeing Mr Williamson in August 2017, shortly after the second conviction.
  3. [25]
    She initially saw him fortnightly but that progressed to sessions occurring as Mr Williamson needed.
  4. [26]
    Mrs Sweeting said she had addressed Mr Williamson’s substance use issues, anxiety issues and stress in their sessions.  She said that the first thing addressed was the need for Mr Williamson to cease using illicit substances.  Her evidence was that he came away from the substance use quickly and had maintained abstinence since then.  The issue of his substance use had been addressed in the first consultation when Mr Williamson admitted using cannabis 4 to 5 times per week and methyl amphetamine once a week. 
  5. [27]
    She said that he reported using those substances over many years because of workplace issues.  She was unable to clarify how many years Mr Williamson had reported using the substances because her notes did not indicate a length of time.
  6. [28]
    Mrs Sweeting said that Mr Williamson told her that his former wife did not know of his substance use until the circumstances that led to the first conviction.  She said that this issue had been one of the reasons for the breakdown of their marriage.
  7. [29]
    Mrs Sweeting also noted that Mr Williamson’s use occurred during difficult periods of his life.  She considered he used the substances as a mechanism of self-medication.
  8. [30]
    In her sessions with Mr Williamson, Mrs Sweeting discussed strategies to maintain abstinence and ways of dealing with anxiety and stress.  One strategy to maintain abstinence was to cut away from social connections that use those substances.  Mr Williamson had told her that he had removed those social connections from his life and he now had minimal or no contact with them.
  9. [31]
    Mrs Sweeting said that the removal of those social connections occurred over time but he minimised his contact with them between August 2017 and April 2018 and had definitely completed the process of disconnection by March 2019.
  10. [32]
    She had also spent time preparing a relapse prevention plan with Mr Williamson which looked at every risk factor and how to manage those risk factors.  It was a practical plan where they looked at what he should do in times of high stress and developed strategies to allow him to deal with the potential situations.
  11. [33]
    Mrs Sweeting said that Mr Williamson now understands what his body is doing and understands when he is having an unhelpful thought.  She said that he had gained insight and has made good solid judgments and decisions about how to live his life.
  12. [34]
    Mrs Sweeting said she was confident that Mr Williamson no longer used substances. She said that her confidence was the result of her years of experience which meant she had a feel for knowing if people are saying what you want to hear and she did not believe that was occurring with Mr Williamson.
  13. [35]
    She said that Mr Williamson had developed resilience and pointed to his reaction to the issuing of the negative notice as an example of this.  Mrs Sweeting said that he had initially been very distressed but then he began to rationalise and process the decision and had taken steps to address the issue, which included bringing the current application.  He has also contacted her for appointments when he has felt the need for support.
  14. [36]
    Mrs Sweeting was of the opinion that Mr Williamson now knows when he is struggling and will readily engage with her for help in those situations.  She said that all the way through therapy he presented as someone who had tenacity and would not give up when things got hard, that he would go back and try again.  In her opinion he will be able to engage support when required and she pointed to his history of booking in sessions with her to address problems as they have arisen.
  15. [37]
    Mrs  Sweeting said that Mr Williamson definitely understands the link between drug offending and the protection of children.  She said that he does not feel hard done by but that he took responsibility for his behaviour.
  16. [38]
    She said that Mr Williamson has shown good insight and is able to make good, solid judgments at this time.
  17. [39]
    Mrs Sweeting said that she has read the Reasons document issued by Blue Card in relation to the negative notice and would have discussed it with Mr Williamson.  However, she cannot recall the details in the Reasons.
  18. [40]
    Mr Cumiskey has known Mr Williamson for over 20 years.  He is married to Mr Williamson’s sister.
  19. [41]
    Mr Cumiskey said that he had not known about the charges against Mr Williamson at the time but that he’d become aware of them around the time the negative notice in relation to the Blue Card application was issued.
  20. [42]
    Mr Cumiskey had seen the reasons for the negative notice by Blue Card but could not recall all the details.
  21. [43]
    He said that since the charges, Mr Williamson has sought support from his General Practitioner and a Psychologist, and that he has family support.  He said that Mr Williamson is a lot more active and has gotten himself healthy.  He said that Mr Williamson doesn’t drink much at all and has stopped smoking.
  22. [44]
    Mr Cumiskey was aware that the drug charges related to cannabis but was unaware that they also related to a Schedule 1 drug, namely methyl amphetamine.[12]
  23. [45]
    Mr Cumiskey said that he would have no hesitation in leaving Mr Williamson to care for his children and that he has never had any concerns in that regard.
  24. [46]
    Ms Gordon is a friend of Mr Williamson.  They met at work and have known each other about 2 to 2 ½ years.
  25. [47]
    She said that she had seen some documents relating to this proceeding but does not recall what they were.
  26. [48]
    Ms Gordon said that Mr Williamson had told her of the drug charges very quickly after they met.  She could not recall what drug was involved.
  27. [49]
    Ms Gordon worked with Mr Williamson in youth respite care.  She said that the children gravitated to Mr Williamson and that he adapted his approach to suit each child.
  28. [50]
    She said that she was very impressed with the way Mr Williamson has got on top of everything, that he is a lot happier now and that he has ‘unbelievable’ coping mechanisms.
  29. [51]
    She noted that Mr Williamson was stressed when they first met but that he is much better now.  She noted that he was getting fit and had moved away from the area where he had the drug issues.  Ms Gordon says that Mr Williamson talks to people a lot more these days rather than holding everything in.
  30. [52]
    Ms Gordon is confident that Mr Williamson has not used drugs in the time she has known him.  She said that he has a lot of different friends around him now which she sees as a positive factor to keep him away from such substances.
  31. [53]
    Ms Gordon said that Mr Williamson had told her that he found it very hard to stop using and go clean but she highly doubts that he will ever use such substances again.
  32. [54]
    Ms Gordon said that she has seen a lot of changes in Mr Williamson over the time that she has known him.  She said that he is stressed by this proceeding but that he’s dealt with it really well.

The Applicant’s evidence

  1. [55]
    Mr Williamson impressed as a witness who was trying to give complete and honest answers.
  2. [56]
    He gave a history of his personal life that he said had led to him using substances.  That history included his then wife’s breast cancer diagnosis following by a recurrence and then a diagnosis that it was terminal.
  3. [57]
    Mr Williamson initially said that the first charges related to the time of his wife’s recurrence of breast cancer and that the second charges related to the terminal diagnosis.  However, later he said that it was the loss of football from his life that led to his drug use in the first place.
  4. [58]
    Mr Williamson said that he had been heavily involved in football but that his work as a disability worker involved shift work, which did not allow him to continue that involvement.
  5. [59]
    Mr Williamson said that he started using drugs in 2007, initially using once per month on weekends and that he didn’t think it was a problem.  His children, then aged about 8 and 12, would be in the house at the time he was using.  He would go to his shed, some 50m from the house, and use there.  He said that his children never saw him using; that he kept it away from them.
  6. [60]
    At the time of the first charges, Mr Williamson said that the methyl amphetamine use wasn’t an issue.  He only used that if he had something big on at work or similar.  He said the cannabis use was after work and on the weekend.  It is clear from this evidence that his use had escalated over time.
  7. [61]
    The first charges came about when the Police came to his property one morning as his wife was about to take the children to school.  He said that they were looking to see if he was growing marijuana.  He produced the drugs the subject of the charges from his shed.
  8. [62]
    His children were unaware of the reason for the Police visit.  Mr Williamson told them they had come to talk about their dog escaping from their property.
  9. [63]
    After these charges, Mr Williamson said that he ceased using drugs until 2016.
  10. [64]
    In 2016, Mr Williamson’s wife received a terminal diagnosis.  Mr Williamson was also hospitalised after suffering a heart attack.  At some time during that year, he recommenced his drug use.
  11. [65]
    Mr Williamson explained that he kept the drugs in a knapsack at the bottom of the tool bench in his shed.  The shed was not locked and his children might get in there sometimes when he was at work but he told them to only go into the shed when he was there.  He said that the knapsack was pretty well hidden and he felt secure that his children would not have found it.  He also said that he now recognises that this approach was not good enough.  He said that now he wouldn’t even have had the drugs on the premises.
  12. [66]
    In September 2016, after his heart attack, Mr Williamson attended a health retreat for 1 month where he did not use any drugs.  He says, although he had been using prior to then, he had no issues with not using during that time.
  13. [67]
    In November 2016, Mr Williamson and his wife separated.  Mr Williamson said that his drug use, in particular, his use of methyl amphetamine increased during January and February, 2017.  He said that he was at his absolute lowest point during that time.
  14. [68]
    Mr Williamson said that he would abstain from drug use when his son was living with him, which was 3 days per week. 
  15. [69]
    The second charges in May 2017 came about when he was driving home from his wife’s place.  Mr Williamson said that he had smoked cannabis at his wife’s place and then decided to drive home.  He was pulled over by Police and admitted having some cannabis in his vehicle.  His vehicle was searched and cannabis, utensils, and a clip seal bag containing a residue which the Police suspected of being used in connection with methyl amphetamine were found.  He was ordered to attend drug diversion as part of his sentencing. 
  16. [70]
    Mr Williamson said that the drug diversion was similar to a counselling session. He said that he learnt a lot from it, including that he was self-destructing and that his mental health issues were being accelerated by drug use.  After that, he made an appointment to see his General Practitioner and asked for help.
  17. [71]
    His General Practitioner referred him to a Psychiatrist and a Psychologist.  He saw the psychiatrist four times.  The psychiatrist put him on medication but he found it numbed him.  Mr Williamson didn’t ‘click’ with the psychiatrist but he did with the psychologist, Mrs Sweeting.
  18. [72]
    Mr Williamson said that he was originally prescribed antidepressants after his father died on 1997.  He has taken them every day for the last 20 years, never missing a day.
  19. [73]
    Prior to the second charges, Mr Williamson had an issue at work as a result of his drug use.  In February, 2017, his work bag was found to contain a pipe.  He received a drop in pay and faced a conduct review.  The Police were notified but they did not take the matter any further.  At the time of the second charges, Mr Williamson was still off work as a result of the conduct review.
  20. [74]
    Mr Williamson works in disability support and is required to hold a Yellow Card.  Because of the second charges, he was required to make submissions in relation to whether he should continue to hold a Yellow Card.  He currently holds a Yellow Card.
  21. [75]
    Mr Williamson said that his children found out about his earlier drug use in 2016 and that he initially approached it from the perspective of “poor me”.  He said that he has since told them that it was totally wrong behaviour.
  22. [76]
    Mr Williamson admitted that he would have driven while under the influence of drugs many times over the period he used.  He said that it would only have been so he could go to the local IGA and it would have occurred between 5 p.m. and 7 p.m.  He admitted that there were people out at the times he would have driven, including children.  He did say that he never drove under the influence of drugs with his own children in his car.
  23. [77]
    Mr Williamson was very positive about his sessions with Mrs Sweeting.  He said they talked about his separation from his wife, his depression and anxiety, and using drugs as a band aid, self-medicating.  He said that being able to talk to Mrs Sweeting allowed him to unload a lot of grief and that was the start of the healing process.
  24. [78]
    Mr Williamson spoke about the relapse plan he developed with Mrs Sweeting.  He said that it included looking at how his drug use came about, moving away from the area where he had connections to other drug users, reconnecting with family and friends, going to the gym – especially using exercise when he was feeling down, and being proactive rather than going over things in his head.
  25. [79]
    Mr Williamson now has a social circle and he sees his sister and his brother-in-law, Mr Cumiskey, on his evidence every second weekend (although Mr Cumiskey said it was monthly).  He also commenced a new relationship last year, which has meant that his relationship with his wife has deteriorated but that he is dealing with that.
  26. [80]
    Mr Williamson does not have a close relationship with one of his children at the moment and he is seeing Mrs Sweeting to help him to deal with that.
  27. [81]
    Mr Williamson said that his drug use affected his interaction with his children because he would be a bit “snappy”, and have less energy.
  28. [82]
    Mr Williamson recognises that his drug use meant that he withdrew from his children, which would have confused them and impacted on how he interacted with them.  He said it would have caused them angst and frustration, not understanding his shifting moods.
  29. [83]
    He also recognises that drug use by an adult generally provides poor role modelling to children.  He said that he recognises that bad decisions such as taking drugs can have an impact on children and other people around the user.

The Applicant’s submissions

  1. [84]
    Mr Williamson admitted that he had made mistakes.  He said that he had been in a difficult situation where he was self-medicating and that it led to addiction, and bad depression.
  2. [85]
    Mr Williamson said that he owns his mistakes and has been doing the work to ensure he doesn’t repeat them.
  3. [86]
    He submitted that he had worked for about 13 years in disability services, 12 months of which was with children.
  4. [87]
    Mr Williamson said he had faced no issues relating to his care of people with disabilities in that time.  He submitted he did not constitute a risk to children. 

The Respondent’s submissions

  1. [88]
    The Respondent relied on written submissions[13], supplemented by oral submissions.
  2. [89]
    The Respondent referred to 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.[14] 
  3. [90]
    Besides referring to the convictions which I have already outlined, the Respondent pointed to Mr Williamson’s lengthy traffic history, which included 13 entries for speeding as well as the entry for driving while relevant drug is present (which related to the second of the charges). 
  4. [91]
    The Respondent submitted that Mr Williamson’s traffic history raises additional concerns about his ability to act in an appropriate manner and within legal boundaries.
  5. [92]
    It submitted that the WWC Act is premised on past behaviour being an indicator of future behaviour and that it allows for precautionary action to be taken even if it is not demonstrated that a person’s criminal offending is directly child-related.  It also submitted that the Tribunal must take into consideration the fact that a positive notice is unconditional and fully transferrable in having regard to the best interests of children. 
  6. [93]
    The Respondent, in accordance with the approach accepted by the Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[15] helpfully referred to both the protective factors and the risk factors identified in the evidence.
  7. [94]
    The following protective factors were identified:
    1. (a)
      Mr Williamson has sought professional treatment from his General Practitioner and a psychologist to help identify triggers and manage his substance misuse, mental health and grief, and he continues to engage in this support as the need arises;
    2. (b)
      Mr Williamson has moved away from the area of his offending, altered his diet and exercise routine, and is actively engaging in support networks;
    3. (c)
      he is avoiding triggers and managing his anxiety, and he was able to outline steps he would take if faced with a stressful situation;
    4. (d)
      he has expressed remorse for his past offending and has some level of insight into the impact his actions may have had on those around him, including his children, which indicates a potential to establish positive behaviours;
    5. (e)
      Mrs Sweeting gave evidence that he had ceased drug use quickly and that this use occurred during significantly difficult periods in his life;
    6. (f)
      Mr Williamson has been the carer of adults and children with disabilities for about 13 years, with a positive employment history, which serves as a deterrent to future offending;
    7. (g)
      Ms Gordon spoke highly of Mr Williamson’s ability to work with children and was highly positive about his skills.
  8. [95]
    Briefly, the following risk factors were identified:
    1. (a)
      there was a discrepancy between the material provided prior to the hearing and the evidence whereby the material suggested the drug use was related to Mr Williamson’s wife’s cancer diagnosis and the breakdown of his marriage but this did not align with Mrs Sweeting’s evidence that it was associated with workplace stress and the breakdown of his marriage.  This was said to indicate that the Tribunal cannot be satisfied that he is able to identify the triggers for such behaviour which would lead to a concern that he did not have sufficient insight;
    2. (b)
      Mr Williamson’s remorse and insight were more related to the effect his behaviour had on him and less about his family and children;
    3. (c)
      the concern that the drug use occurred while his children were at home or in the vicinity;
    4. (d)
      the concern that Mr Williamson’s children may have been able to access the drugs which he kept in his unlocked shed at the family home;
    5. (e)
      that Mr Williamson had engaged in drug use when working in Disability Services;
    6. (f)
      the recent and repeated nature of the offending which raises concerns about his risk of recidivism in the future;
    7. (g)
      the charges related to methyl amphetamine and cannabis, being respectively a Schedule 1 and 2 drug under the Drugs Misuse Regulation 1987 (Qld).  Because the use of such drugs is associated with maladaptive behavioural and psychological changes, it raises serious concerns about Mr Williamson’s ability to provide a protective environment for the children in his care;
    8. (h)
      the recency of his rehabilitation raises concerns that insufficient time has passed for Mr Williamson to demonstrate that he can effectively refrain from drug use and offending behaviour indefinitely, particularly during times of great personal stress.

The Tribunal’s view

  1. [96]
    I need to have regard to s 226(2) of the WWC Act in deciding if Mr Williamson’s is an exceptional case.
  2. [97]
    I note that his criminal history is limited to two charges, some 9 years apart.  The more recent of these occurred about 2 ½ years ago.  Although his traffic history is relatively lengthy, the history spans some 18 years and there have been no entries since September 2017.
  3. [98]
    The drug related charges were dealt with by imposing s good behaviour period with a small monetary recognisance.  In neither case was a conviction recorded.
  4. [99]
    Neither of these charges involved a serious offence as defined in the WWC Act.[16]
  5. [100]
    Although it was not the subject of charges, Mr Williamson did face a work conduct review as the result of having a cannabis pipe with him at his workplace.
  6. [101]
    Mr Williamson’s witnesses spoke highly of him.  I accept their evidence although I place less weight on the evidence of Mr Cumiskey because he was unaware of Mr Williamson’s drug use until very recently, and was unaware that the charges related to a Schedule 1 drug, namely methyl amphetamine.
  7. [102]
    The evidence of Ms Gordon was very helpful.  It demonstrated that Mr Williamson has accepted responsibility for his actions because he was so forthcoming with her about the charges in the early stages of their working relationship.  From her estimate of the time when she met Mr Williamson, it would not have been long after the incident that led to the second charges against him.  It is likely that they weighed heavily upon him at that time.
  8. [103]
    Mrs Sweeting’s evidence did throw some confusion on the reasons for Mr Williamson’s offending.  This discrepancy between her notes of the reasons and Mr Williamson’s documents was not put to Mr Williamson.  As a result, he did not have an opportunity to explain it.  However, Mr Williamson did, during his evidence, admit that the first charges were related to his loss of his involvement in football as a result of his work rather than his wife’s second cancer diagnosis.  This evidence roughly aligned with Mrs Sweeting’s notes that it was the result of work pressure.
  9. [104]
    This is a protective jurisdiction.  I accept the Respondent’s submissions that the WWC supports a precautionary approach to decision making and that it is premised on past behaviour being an indicator of future behaviour.
  10. [105]
    Mr Williamson’s evidence, as I said, appeared to be truthful and he was keen to assist the Tribunal.  At times, he did appear to lack insight into the effect of his behaviour on, in particular, his own children but he did appear to me to have some level of insight into this aspect of his behaviour.  Once it was pointed out to him that his hiding place for the drugs was less than satisfactory, he readily accepted that it was a mistake to be complacent about it.
  11. [106]
    In Re TAA,[17] the former Children Services Tribunal stated at [97]:

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 on the adults around them having insight into their actions and the likely effect on children.

  1. [107]
    Of concern to me was that Mr Williamson was successfully able to hide his drug use from those closest to him over a lengthy period of time.  He said that his wife was unaware of his drug use until the first charges.  He also appeared to be able to hide his relapse from her for some time before they decided to separate.  Mr Williamson’s brother-in-law was unaware of his drug use until Mr Williamson told him, but that was done in connection with these proceedings.  Mrs Sweeting was confident that Mr Williamson had not used any drugs since shortly after they commenced their sessions.  I note, however, Mr Williamson largely controls the timing of those sessions.
  2. [108]
    Mr Williamson has worked with vulnerable people for approximately 13 years, with the only issue arising being his possession of a pipe in his work bag, about 2 ½ years ago.
  3. [109]
    Of note also is that Mr Williamson did not engage with any services after his first charges but he has done so consistently since the second charges were brought.  He also has taken other positive steps to prevent a repetition of the behaviour, as outlined by the Respondent.
  4. [110]
    I accept that the protective factors in this case are as identified by the Respondent.
  5. [111]
    I also accept that the risk factors in this case are as identified by the Respondent, both in its written and oral submissions.
  6. [112]
    This is a difficult case with the protective factors and risk factors almost evenly balanced.
  7. [113]
    I am of the view that the risk factors outweigh the protective factors.
  8. [114]
    I take this view because Mr Williamson had previously abstained from drug use for an extended period before relapsing and it has only been 2 ½ years since he last used drugs.  That relapse saw Mr Williamson’s drug use escalate with increasing use of methyl amphetamine.  I recognise that the difference in the help sought by Mr Williamson after the 2017 charges is a significant factor in his favour.  However, Mr Williamson was previously able to hide his drug use from his family and his workplace.  I am of the view that some further time is necessary to ensure that he does not again relapse, bearing in mind the precautionary approach to be taken in these matters and the WWC being premised on past behaviour being an indicator of future behaviour.
  9. [115]
    After taking into account all of the above matters, I find on the balance of probabilities, bearing in mind the gravity of the consequences involved,[18] that Mr Williamson’s case is exceptional such that it would harm the best interests of children for him to have a positive notice and blue card.
  10. [116]
    The decision of the Respondent that the Applicant’s case is an exceptional one within the meaning of s 221(2) WWC is confirmed.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[3] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 applying s 102(5) of the Commission for Children and Young People and Child Guardian Act 2000 (Qld).

[4]  Ibid.

[5]  [2011] QCATA 291 at [31] (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22]).

[6]  [1983] VR 1 (citing Re Perry and Brown’s Patents (1930) 48 RPC 200 per Luxmoore J).

[7] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 per Buss J at [109].

[8] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 at [33].

[9] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [8].

[10] Briginshaw v Briginshaw (1938) to CLR 336

[11] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

[12]Drugs Misuse Act 1987 (Qld), Schedule 1.

[13]  Exhibit 1.

[14] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5(b), WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, per Thomas J at [17].

[15]  [2004] QCA 492.

[16] Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.

[17]  [2006] QCST 11.

[18]Briginshaw v Briginshaw (1938) 60 CLR 336

Close

Editorial Notes

  • Published Case Name:

    Williamson v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Williamson v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 307

  • Court:

    QCAT

  • Judge(s):

    Member Sheean

  • Date:

    16 Oct 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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