Coombes v Director-General, Department of Justice and Attorney-General [2017] QCAT 404

CITATION: Coombes v Director-General, Department of Justice and Attorney-General [2017] QCAT 404 PARTIES: Wayne Thomas Coombes (Applicant) v Director Deneral, Department of Justice and Attorney General (Respondent) APPLICATION NUMBER: CML234-16 MATTER TYPE: Blue Card matter HEARING DATE: 2 June 2017 and 24 July 2017 HEARD AT: Toowoomba DECISION OF: Member Wood DELIVERED ON: 23 October 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. That the Decision of the Director General, Department of Justice and Attorney- General that the Applicant’s case is “exceptional” within the meaning of Section 221(2) of the Working With Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – Application for Removal of Negative Notice – where Applicant has lengthy criminal history – where none of the offences “serious offences” – where the Applicant issued with a negative notice – -- 1 of 10 -- 2 whether an exceptional case exists – whether protective factors outweigh the risk factors Queensland Civil and Administration Tribunal Act 2009 (Qld), s 28 Working With Children (Risk Management & Screen Act) 2009 (Qld), s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCATA 492 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 Jones V Dunkel [1959] HCA 8 TAA [2006] QCST11 APPEARANCES and REPRESENTATION (if any): APPLICANT: The Applicant in person RESPONDENT: Mr Iain McCowie – Government Legal Officer REASONS FOR DECISION [1] The Applicant was born in Brisbane in 1974 living variously throughout Queensland in Brisbane, Bowen and Rockhampton and then moving to Perth in the hope of changing his life but he became involved in selling Cannabis, Amphetamines and Heroin to support a drug habit. Whilst in Perth he met his Wife of now 23 years. As a result of the relationship with his current wife, he has two children aged 15 and 13 and his wife has three children from previous relationships and one grandchild. In 2002 the Applicant returned to Queensland in order to start a new drug free life. Unfortunately for him he did not and the Applicant continued to engage in drug taking behaviour. [2] The Applicant’s Father left the family home when the Applicant was 4 years of age and his Mother suffered a nervous breakdown 2 years later after which he spent some years in Foster Homes with his siblings. On returning to live with his Mother some years later, she continuing dealing drugs as did her boyfriend. In 2007 his younger Brother died as a result of amphetamine use and the Applicant used drugs himself to cope with the grief. His Mother passed away in 2012 after 5 years of neurological complications, again the Applicant used Cannabis to cope and deal with the grief. [3] The Applicant has held a Blue Card previously having been issued with a Positive Notice on 18 December 2006 which was renewed on 9 December 2008 and again on 4 March 2011. On 27 March 2013 the Respondent’s predecessor was notified of a conviction for Possession of a Dangerous -- 2 of 10 -- 3 Drug and of a Utensil leading to the cancellation of the Applicant’s Blue Card on 9 July 2013. He appealed that Decision to this Tribunal but on that occasion the Decision of the then Public Safety Business Agency was upheld and a Negative Notice stood1. The Tribunal’s Decision sets out the circumstances in which the Applicant had grown up. The Decision contains a very extensive analysis of the offending behaviour and difficulties which the Applicant had had during both his juvenile and adult life. There was no Appeal from that Decision. [4] I do not intend to repeat most of the history of the Applicant which predates the Decision of this Tribunal in 2014 except to reinforce that the convictions which the Applicant has are other than serious offences and span 22 years from March 1991 to March 2013. He has convictions for property offences including stealing, entering a dwelling house at night and others, driving offences including dangerous driving, firearm offences and assault offences. [5] It is apparent on the evidence before me that the Applicant has a warrant (currently) outstanding for him in Western Australia. I have the benefit of evidence in the form of a letter from the Stanthorpe Police under the hand of Senior Constable John Thomson that the Applicant and his partner attended the Stanthorpe Police Station in October 2011 and raised with them the outstanding warrants in Western Australia. Senior Constable Thomson contacted the Western Australian Police who advised him that the warrants were minor in nature and could not be transferred to Queensland. The evidence before me is that the Applicant intends travelling to Western Australia next year in order to deal with the outstanding warrants. [6] The Applicant gave evidence before me and confirmed his written material that he did not have any formal schooling and had been using drugs since the age of 11. He was into “heavy” drugs including Heroin by the age of 21 and was on naltrexone by the age of 29. He says that he has now stopped drug use, the most recent drug use being the marijuana use in 2013. [7] When asked about the effects of drugs on the community he said “drugs are shocking for mental health and life in general” and that he had changed his behaviour because he had to “wake up to myself as the girls grew up”. This was a reference to his own children. He confirmed that his life revolved around his family and his girls and it was particularly concerning for him that one of his daughters was born with a heroin addiction which was when he gave up heroin. [8] In terms of his own criminal history he acknowledges that it is related primarily to his drug use. In relation to assaults, he says that he would deal with things differently now and ring the Police rather than taking matters into his own hands. [9] In terms of the recent drug offence in 2013, he agreed that the marijuana use occurred after the Negative Notice had previously been issued by the 1 Coombes v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 669. -- 3 of 10 -- 4 Respondent’s predecessor. He says that he also used marijuana in order to relieve the pain that he has in his hand. He is now prescribed Tramadol for pain. He says that in the past he resorted to self-medicating with cannabis in order to deal with the pain. [10] He has started his own business lawn mowing, cleaning and cutting firewood (has recently been provided with a grant). The grant allowed him to purchase equipment. The cleaning earns approximately $16,000.00 per annum and the Applicant and his wife plan to expand the business in future. Currently there is a high demand for firewood particularly given the winter season. When asked what was important for business success, he outlined that it was important to stay healthy and remain drug free. He has purchased a new ute and trailer as well as equipment to carry out his work which he does 3-4 hours per day. In terms of his driving he has been drug tested while driving 3 times in the last 4 months, each time the result it has been negative. Whilst he had 8 operations on his hand over a period of 12 months, he does not currently have any injuries which prevent him from working. [11] The Applicant has engaged in formal rehabilitation and confirmed that he has been seeing a social worker who has assisted him with his anxiety and she had been encouraging him to access the community. In addition the Applicant saw a Psychologist, Ms Elizabeth Searle, and has been on medication for anxiety for 3 to 4 years. [12] The Applicant was able to identify his support network as being the Church his Wife and medical professionals supporting him including his General Practitioner. [13] The Applicant recently discovered that his Father was indigenous and spoke to people who knew his family. He has known little about his Father until now. [14] When asked why it was that he was seeking a Blue Card he confirmed that it was to care for his step-granddaughter. He wishes to be a role model for his children by avoiding alcohol and drugs and going to church and leading an otherwise healthy life. He outlined that he had seen many times in his life what a poor role model was and was determined to change himself. [15] In terms of techniques he has developed to deal with his anxiety, they are talking to his wife, breathing techniques, learning to cope including recognising the symptoms of his anxiety and the cause. He has also now realised that the marijuana adds to his anxiety, whereas in the past he had thought it had helped it. [16] In terms of the triggers he identifies depression as being a trigger and feels that he has grown up now and has an understanding of it. Overall he wishes to put his past behind him and now that he has children he thinks differently and is horrified about some of the things that he had done as recorded in his criminal history. He readily accepted that it was reasonable to look at -- 4 of 10 -- 5 the entire of his criminal history when considering whether he should be granted a Blue Card and that overall his criminal history was “not real good”. [17] The Applicant impressed me as a witness of honesty who had genuine insight and understanding of his current circumstances including the fact that he had a lengthy and concerning criminal history. He impressed me as someone who was genuinely making headway in addressing a number of issues in his life including longstanding drug use and anxiety. He was an open and honest witness. [18] Other witnesses were called on behalf of the Applicant. The first witness was a friend, Mr Davey, who has known the Applicant through Alcoholics Anonymous. He met him approximately 3½ years ago and most of the contact and discussions that he had with the Applicant was outside of Alcoholics Anonymous. The Applicant was looking for support and someone to talk to and trust and initially he saw him twice per week, anywhere from 1 to 6 hours. Over that time Mr Davey described the changes that he has seen in the Applicant including that he was now more confident and was working more, expanding his business and was nowhere near as nervous or troubled in social settings. He believes that when he first met the Applicant he had many unresolved issues and that whilst Mr Davey has moved to Southport he has been returning every 2 weeks and has contact with the Applicant when in Stanthorpe. [19] In his discussions with the Applicant he has reflected upon his past and is acutely aware of the convictions and regrets the negative lifestyle choices that he has made. He now acknowledges that drugs are not any part of the answer but instead they are destructive of work and family life. He gave evidence that the Applicant copes well in stressful situations and he has observed him looking after his daughter and says that he is a great parent. He considers himself to be a member of his support network and that his strengths include being a perfect example of a Father and a family man. He would have no concerns with the Applicant around children. He has found him generally to be calm and engaging. [20] Ms Frizzell gave evidence, she is a foster parent and had been for approximately 12 years. She knew the Applicant as she is the Foster Parent for the Applicant’s partner’s grandchild. She had known the Applicant for approximately 9 years and had seen him regularly through contact with his step-grandchild. In the time that she has known the Applicant the changes that she has observed are that he has become more stable and now communicates more with his step-grandson. The Applicant gets along well with the witness and the witness never had any concerns in his interactions with children. Ms Frizzell had read the Reasons documents and was aware of why the Negative Notice was issued. She has seen the Applicant deal with challenging behaviour which he handles well. [21] In terms of the past, the Applicant becomes upset and remorseful when talking about it and wished it had never happened. He has coped with times of stress well and is aware that the Applicant has been attending counselling and rehabilitation. -- 5 of 10 -- 6 [22] The Applicant’s General Practitioner, Dr Beata Danasiak-lazinska, gave evidence that she had known the Applicant for many years and that there had been significant improvement over the years. The written Report which she had provided confirmed a diagnosis of a number of conditions including depression, anxiety, agoraphobia and panic disorder for which he was treated. He also has chronic pain and she sees him monthly. She has been treating him since 15 August 2008. She is aware that he has been seeing a psychologist and engaging in counselling for various conditions. When she first knew the Applicant he was very depressed and anxious, now he has no symptoms from the conditions referred to above and his depression is under control. He is compliant with his medication regime and understands his anxiety and depression. She identifies his wife as a very good support and that they have a strong relationship. Overall she had not discussed with him why his Blue Card has been cancelled in any detail but was very confident that he would seek assistance if there were any problems. [23] Mr Jeremy Greening is the Senior Pastor at the Vineyard Christian Church in Stanthorpe. He had known the Application for over 4 years and during that time had noticed a willingness and genuineness to improve his life and to make those changes in his life. The Applicant has been regularly attending at Church and is dedicated to living his life without harm to others. He sees the family regularly and has been in their home. [24] Pastor Greening was aware why the Blue Card had been declined and believes that the Applicant genuinely wishes to move away from his past. He has seen the Applicant intervene in the children’s disagreements and he redirects them appropriately. [25] Pastor Greening is aware that the Applicant is seeking help from others and taking his correct medication. He has the Church and family as his supports. He would also be confident that the Applicant would look for assistance if things were going wrong. He has no concern about the Applicant being around children, in deed he has “zero cause for alarm”. [26] Katherine Walton is a Social Worker who has been working with the Applicant since 2015 following a referral by his General Practitioner. A Report had been provided outlining that the Applicant presented to therapy with chronic depression and severe anxiety with an extensive criminal history and a workplace injury to his hand resulting in incapacity to work. [27] She records in the written Report that the Applicant had made pleasing progress with his mental health, particularly since about mid-2016 with improved quality of life. [28] When cross examined she gave evidence that she has previously worked with the Department of Community Services assessing child protection risk. She had been working with the Applicant to manage his anxiety and has been working for 12 years in the private sector. Initially when the Applicant attended he was so anxious that he had trouble attending the sessions, shaking and difficulty physically entering the building. There is now much less anxiety in attending and engaging in the sessions. In Ms Walton’s -- 6 of 10 -- 7 observations this has settled in the last 2 years and the referral to personal helpers and mentors has also assisted. In the course of working with the Applicant, he has learnt techniques to manage those symptoms and Ms Walton is aware that he has taken out a business loan to extend the business and acquire assets. She has worked with him with some strategies for running the business including discussing supports. The Applicant now has an increased willingness to seek support if required. She assesses that he has a reasonable level of insight and recognises that he has an illness with symptoms and would seek assistance. [29] Elizabeth Searle is a psychologist who provided a Report to the Tribunal and who was engaged for the purposes of preparing a Report into the Applicant’s suitability to hold a Blue Card. Overall Ms Searle was of the view that: It seems to me that much has changed for Mr Coombes in recent years. This includes his improved insight into his situation, past behaviours and the impact that these have had on his family. He reported that he has not used illicit substances since late 2013. Mr Coombes is aware of the benefits of seeking professional and community help in a timely manner. He has good support networks. His family is very important to Mr Coombes and he has now an awareness of their needs. [30] She confirmed in cross-examination that she had not had any meetings since the Report had been done and from the formal testing that she had undertaken the Applicant had demonstrated a high ability to self-regulate. In terms of his ability to continue to run the business without adverse effects, she outlined that there were positives including increased self-esteem from working but also negatives being the stresses of running the business. She outlined that the type of business would be very positive for him and that with supports he could manage. [31] In terms of his criminal history, she expressed the view that he learned the behaviour from a very young age until he became exposed to a different experience. She expressed the view that people in general do not realise that behaviour is not normal until something occurs to make them realise that. She believes that he has developed insight into his drug use and that there are other support services and strategies he can use whereas in the past the only strategy that he knew to deal with stress or anxiety was to use drugs. He now has a greater awareness and would consider other alternatives. STATUTORY FRAMEWORK [32] In making my Decision I need to make the correct and preferable decision2 and proceed by way of a fresh hearing on the merits. [33] In considering the information it had received the Respondent determined that none of the offences were “serious offences” as that term is defined and that therefore a Positive Notice must issue unless it was satisfied that 2 QCAT Act, s 20. -- 7 of 10 -- 8 it was an exceptional case in which would not be in the best interest of the children to be issued with Positive Notice.3 The Commissioner was of the view that it was an exceptional case and issued the Negative Notice. [34] The term ‘exceptional case’ is not defined in the legislation. The Working With Children (Risk Management & Screen Act) 2009 (Qld) (WWCRMSA) sets out criteria which must be considered when determining when there is an exceptional case4 however the Tribunal must exercise its discretion in each case within the parameters of the legislation. [35] There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists5. [36] In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card. [37] The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.6 [38] In making my Decision I need to take into account the protective and risk factors7. RISK ASSESSMENT [39] There are a number of protective factors in this case:- a) The Applicant has now developed support networks in the community with whom he can communicate and converse. These include the members of the church and Alcoholics Anonymous. b) The Applicant has a very supportive wife having been married now for approximately 23 years. c) The Patient has engaged with his General Practitioner in seeking treatment for anxiety, depression, agoraphobia and panic disorder and has continued to take medication and develop insight into that illness. The Patient is now being properly treated for the pain in his hand rather than self-medicating with marijuana. d) The Applicant has undertaken formal counselling and rehabilitation with Katherine Walton, addressing anxiety and depression and 3 WWCRMSA, s 221(2). 4 WWCRMSA, s 226. 5 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28. 6 WWCRMSA, s 6. 7 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492. -- 8 of 10 -- 9 learning techniques and strategies to deal with these conditions as opposed to turning to drugs. e) The Applicant has not had any criminal convictions for approximately 4 years. f) The Applicant’s pain management for his hand is such that he can undertake gainful employment and he has recently expanded his business taking on a grant for the purchase of equipment to enable him to do so. g) The Applicant wishes to present as a good role model for his children. h) The Applicant was candid in his evidence and demonstrated in answering questions that he did have a genuine understanding of his criminal past and the effect of his behaviours on others. i) The Applicant has now indicated that he will be addressing the outstanding warrants in Western Australia. [40] There are a number of risk factors:- a) The Applicant has a lengthy history of offending and drug use including violence and property offence. The Drugs he has used include Heroin and Amphetamines. b) He has had some involvement with DOCS in Western Australia although this is conceded to be in the distant past. c) The Applicant’s most recent criminal history is a drug offence in 2013. d) The Applicant has recently taken on a loan and expanded his business which may cause stress and anxiety to him. APPLICANT’S SUBMISSIONS [41] The Applicant submits that I would grant him a Blue Card on this occasion as he has maintained wellness since the Decision of this Tribunal in 2014 and that in doing so he should be entitled to have a Blue Card issued to him. He submits that he has now changed and recognises what he has done wrong in the past. RESPONDENT’S SUBMISSION [42] The Respondent’s submission is that primarily the Applicant’s extensive criminal history which continued into mature adulthood is such that I would consider that this is an exceptional case and confirm the Negative Notice. They confirm that they relied primarily on the Applicant’s criminal history in making this submission. DISCUSSION -- 9 of 10 -- 10 [43] I must consider the correct approach in this matter. As I have outlined previously, the Applicant has previously asked the Tribunal to review a Decision to refuse him a Blue Card. That Decision was delivered by the Tribunal in September 2014. It is clear that there has been no offending behaviour by the Applicant since that time, it is also clear that during that period of time he has developed support networks in the community including members of Alcoholic Anonymous, the Church and professional supports including Counsellors and General Practitioners. [44] I do not consider however that the passage of time alone is sufficient to justify the alteration of a Decision such as is sought in this case. To discharge its statutory obligations the Tribunal must have regard to the entire of the circumstances of the person, not merely since the previous consideration. This means that I must look at all of the risk factors as part of my consideration and examine the Applicant’s case as a whole rather than solely on what has occurred since the previous consideration. [45] In this case that means that I must consider the entire of the Applicant’s circumstances including those findings summarised in the previous Decision. Overall however it is clear that this Applicant has taken on board the findings of the Tribunal previously and has taken positive steps to address the issues identified including:- a) Seeking support from a Social Worker and his General Practitioner. b) Developing a support network at the Church and in the community including members of Alcoholics Anonymous. c) By avoiding criminal behaviour. [46] The Applicant has now developed the support networks and understanding of his own illnesses and shortcoming such that he is able to deal with them on a day to day basis. DECISION [47] Having regard to all of the circumstances I find that this is not an exceptional case and the Decision of the Director General, Department of Justice and Attorney-General that the Applicant’s case is an exceptional case within the meaning of Section 221(2) of the Working With Children (Risk Management and Screening Act) is set aside and replaced with the Tribunal’s Decision that there is no exceptional case. -- 10 of 10 --