Cole v Director General, Department of Justice and Attorney General [2017] QCAT 70

CITATION: Cole v Director General, Department of Justice and Attorney General [2017] QCAT 70 PARTIES: Christopher Cole (Applicant) v The Director General, Department of Justice and Attorney General (Respondent) APPLICATION NUMBER: CML139-16 MATTER TYPE: Childrens matters HEARING DATE: 12 December 2016 HEARD AT: Brisbane DECISION OF: Member Goodman DELIVERED ON: 20 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The finding of the Director General, Department of Justice and Attorney General that Christopher Cole’s case is an ‘exceptional case’ is set aside; 2. It is declared that Christopher Cole’s case is not an exceptional case. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue Card – where applicant has a history of criminal charges – where no serious offence - where applicant has made significant changes to his lifestyle Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2) APPEARANCES: APPLICANT: Mr Cole was self represented RESPONDENT: Mr Thompson represented the respondent -- 1 of 9 -- 2 REASONS FOR DECISION [1] Mr Cole applied for a Blue Card so that he can continue in his current employment. Mr Cole is employed by an organisation that supports Aboriginal and Torres Strait Islander people who have been separated from their families and culture through forced removal, fostering, adoption and/or institutionalisation. [2] The respondent refused to issue a Blue Card to Mr Cole and issued him with a negative notice. Mr Cole has applied to QCAT seeking a review of that decision. He asks that a positive notice be issued, so that he is granted a Blue Card. [3] This is not an appeal decision, but a review. I am standing in the shoes of the original decision maker and must make the correct and preferable decision1. My decision making is governed by the provisions of the Working with Children (Risk Management and Screening) Act 2000 and the Queensland Civil and Administrative Tribunal Act 2009. The paramount consideration for me is the welfare and best interests of children.2 [4] Mr Cole has a criminal history. He has not been convicted of a “serious offence”, as that term is defined in the legislation, and so a positive notice must be issued unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for Mr Cole to be issued with a positive notice.3 [5] Mr Cole was born 12 April 1979, and is currently 37 years of age. His criminal charges and convictions span a considerable period from around the time he turned 18. His history is as follows: a) 9/2/1993 Darwin Court of Summary Jurisdiction: convicted of Substantial annoyance and hinder police (charge of resist police was withdrawn) $340 b) 24/4/98 Darwin Court of Summary Jurisdiction: stealing shop summons, without proceeding to a conviction, proved $350 c) 3/1/02 Darwin Court of Summary Jurisdiction: assault person – not guilty d) 8/2/02 Darwin Court of Summary Jurisdiction: fight in a public place (withdrawn), disorderly behaviour in a public place, convicted restitution $50 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6. 3 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221. -- 2 of 9 -- 3 e) 1/11/02 Darwin Court of Summary Jurisdiction: trespass after direction to leave, fail to leave a licensed premises, disorderly behaviour in public place, resist police in execution of duty – all withdrawn f) 28/11/02 Darwin Court of Summary Jurisdiction: Assault person in execution of duty, assault member of police force, assault police and cause bodily harm, possess cannabis in public place – convicted of all charges. Imprisonment, suspended. Home detention 3 months. Fine $500 g) 31/10/03 Darwin Court of Summary Jurisdiction: trespass within 1 year after warning – withdrawn; resist police in execution of duty and trespass on enclosed premises – convicted. Fine $450 h) 11/2/04 Darwin Court of Summary Jurisdiction: use obscene/indecent language and resist police in execution of duty – convicted. Fine $450 i) 13/9/16 engage in conduct that contravenes domestic violence order Local Court Darwin. No conviction recorded. Fine $200 j) 28/9/16 Brisbane Magistrates Court: refused entry to a licenced premises, commit public nuisance, assault or obstruct police officer. Charges withdrawn – no evidence to offer. [6] Mr Cole provided written and oral evidence and submissions. He states that: a) He grew up in the Northern Territory with his grandmother who is part of the stolen generation. He does not know his father and his mother was a heavy drinker who was largely absent during his childhood, returning sometimes to subject him to physical and verbal abuse. He was raised by his grandmother. Many of his family members have criminal histories. b) He received a poor education as a child and when he was a teenager began to abuse alcohol. There was a heavy police presence in the area he lived and he came to the attention of the police because he spent his time with a group of young indigenous men who were directionless. During that time, he and his friends were picked on by the police who would, for example, drive past and swear at them. He felt that he was being unfairly targeted because he was an indigenous man. It was during this period that he incurred most of the charges and convictions evident in his criminal history. c) In around 2002 he made a decision to turn his life around and has worked hard to educate himself and find employment since then. d) His work history has been child and community focused and no concerns have been raised about his ability to act appropriately. He spent some 4-5 years working with at risk youth in the Northern Territory, in youth detention facilities, for Aboriginal and Torres Strait -- 3 of 9 -- 4 Islander Community Health Service, and the Darwin prison. He has also worked with indigenous youth in remote communities promoting healthy living. e) In 2015 he moved to Queensland to provide a better life for his children. f) In his experience, being subject to racist abuse is a “part of life” – for example, police question indigenous people much more often than non-indigenous people in the same situation. He previously struggled with this and reacted to what he saw as injustice. He now deals with difficult situations by walking away and not paying attention – he spends time relaxing by swimming, spending time on his own, doing the breathing exercises he has learnt through counselling and reminding himself that he has value. He enjoys spending time outdoors, especially with his children. g) As a child and young man he was not in touch with his culture. He has now reconnected with his culture and that is an important part of his lifestyle. For example, he engages in cultural activities on a social basis and is immersed in cultural awareness at work. h) Since 2002 he has worked extensively within the community to help children and has actively demonstrated his ability to work with children. i) He has completed study and provided copies of: i) Certificate II in Business – Charles Darwin University 5 March 2011. Completed while employed in the prison service in the NT ii) Certificate III in Community Services Work – Charles Darwin University 22 April 2013 iii) Certificate IV in Mental Health – Galang Place Aboriginal and Torres Strait Islander Corporation 31 August 2016. j) He is currently in the process of enrolling in a Diploma of Counselling. k) He has engaged with a counsellor in his workplace and has had one scheduled session, with plans to continue with counselling. He is now immersed in support programmes and uses what he has learnt in his everyday life. l) His history has taught him to be more mature. He has significantly cut down on his drinking, partly in response to a diagnosis of diabetes, partly because he has family responsibilities (he is a single dad with two children currently living with him) and also because he has matured. -- 4 of 9 -- 5 m) His current employment involves working with people who have themselves experienced trauma and he is able to manage that with support from his colleagues and his friends. n) He no longer responds to conflict with violence and is able now to exercise self-control and act appropriately. For example, at a recent workplace a teenager physically attacked him and he responded calmly and appropriately. [7] Andrew Cummins, a friend and colleague of Mr Cole, provided evidence that: a) He has known Mr Cole for about 2 years. They attend cultural and sporting events together at least once a week, often more. b) Mr Cole has demonstrated that he is able to de-escalate upset and angry clients and manages his son (who has ADHD) by using strategies to calm things down. c) Professionally, he sees Mr Cole working with a Men’s group and linking people to services they can benefit from. Privately, he is culturally engaged and very family orientated. This is reflected in his actions, and in the tattoos Mr Cole has which have meaning to him. d) He has witnessed Mr Cole in potentially difficult situations – their group was denied entry into a venue; being subject to others “mouthing off” at football games and when taking part in culturally significant events such as a Sorry Day march. Mr Cole does not respond to provocation in those settings. e) Mr Cole has moved away from the people and environment where he was getting into trouble and has started a new life. f) He has no concerns about the level of Mr Cole’s current alcohol use. g) Mr Cole calls him if he needs to chat about things. [8] Francis Singh (“Uncle Tiger”) gave evidence on behalf of Mr Cole. Uncle Tiger is a community Elder. He said that: a) He has known Mr Cole for approximately 2 years and knows him as a very good family man. b) Mr Cole has learnt through his past mistakes and is moving forward. He is part of a cultural group who “all stick by each other and help each other out”. He has engaged with a Men’s Group where people can talk about things that are bothering them. He has never seen Mr Cole angry or violent. [9] Patricia Conlon, the CEO of Mr Cole’s employer provided evidence in writing and via telephone. She said that: -- 5 of 9 -- 6 a) She has known Mr Cole for about 18 months or two years and has worked with him for about 6 months. She met Mr Cole when he volunteered his time at Sorry Day and Apology Day events. b) Mr Cole is personable and has a nurturing way with people. He is sensitive to client’s needs and very appropriate in his dealings with clients. Mr Cole is absolutely respectable and supportive and she has only ever heard positive feedback about him. c) She is aware that Mr Cole has a criminal history and has never witnessed an aggressive side. She recently observed Mr Cole intervene appropriately to support a colleague when a client refused to leave their office. He is able to deal with aggressive clients appropriately. d) Due to the difficult nature of the work they are involved in, staff have access to social and emotional wellbeing counsellors and psychologists. Mr Cole has engaged with counselling and demonstrates a respect for his counsellor. [10] Carmel Schleger, a social and emotional wellbeing counsellor at Mr Cole’s workplace provided evidence via telephone. She said that: a) Mr Cole is open, sociable and responsible. He grew up in difficult circumstances and is striving to be a better person. She will be his mentor through his counselling studies. b) Mr Cole is very open and keen to learn. She works closely with Mr Cole and provides a significant level of support and feedback and engages in ongoing discussions with him. This relationship will continue. c) She has had one formal counselling session with Mr Cole but also talks frequently to him at work. She has provided tools to help Mr Cole deal with his difficult childhood. He has been very receptive of the information and tools she has provided and often talks to her. d) She recently witnessed him dealing with a client with mental health issues who was loud. Mr Cole was calm and reassuring and handled the situation very well. [11] Some of Mr Cole’s evidence was quite vague. He did not provide specific details of some of the incidents recorded in his criminal history. I will proceed to make a decision based on the evidence before me. [12] I must determine whether this is an exceptional case in which it would not be in the best interests of children for Mr Cole to be issued with a positive notice. This is decided on the balance of probabilities, and there is no onus on either party to establish that such a case does or does not exist. -- 6 of 9 -- 7 [13] I must have regard to the matters set out in legislation4 and any other relevant matters. So far as the matters set out in the legislation are concerned, I find that: a) Mr Cole has a number of charges and some convictions, the details of which are discussed earlier in this decision. b) The offences are not “serious offences” as that term is defined in this legislation. c) Most of the offences were dealt with by the Courts some 13 years or more ago. There are two more recent charges. d) The offences are relevant to employment that involves children. They involve a lack of self-control and an element of violence. e) The penalties imposed by the Courts were mostly fines, although there was an occasion where Mr Cole received a suspended jail sentence and served a period of home detention. f) The offences were committed, in the main, by Mr Coles when he was drinking heavily and before he committed himself to a life of responsible behaviour and contribution to society. They were committed by a much younger man who reacted against what he perceived to be injustices committed against himself and his peer group. Mr Cole was, at the time, not well educated and was directionless. He was not connected with his culture and did not have positive social and employment supports. g) The last two charges are more concerning because they are more recent, and were brought after Mr Cole made the commitment to turn his life around. The 2016 breach of a Domestic Violence Order is on its face concerning. Mr Cole’s unchallenged evidence is that the Domestic Violence Order was issued after a verbal argument with his then partner and the breach occurred when the police later dropped him back at the home that they shared so that he could collect his car. Mr Cole’s former partner provided written evidence confirming that the Order and breach occurred in the circumstances described by Mr Cole. The judge dealing with the matter in the Court states “it was at the lower end of seriousness in terms of Domestic Violence breaches… it’s over 10 years since you’ve been in any trouble…I’ll regard this matter as being one where you are now a person of sufficiently good character and in special circumstances to warrant a without conviction disposition…”. In these very unusual circumstances I am not satisfied that the Order or the breach is evidence of a return to Mr Cole’s previous aggressive behaviour. 4 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226. -- 7 of 9 -- 8 h) I accept Mr Cole’s explanation of the breach of the Domestic Violence Order. Given the comments of the judge considering the matter, I accept that the breach was technical in nature in that the police themselves returned Mr Cole to the area so that he could collect his car. i) The 2016 charges are more difficult. The police brief records behaviour similar to the behaviour Mr Cole engaged in as a younger man. Mr Cole disputes the facts as recorded. Ultimately, the charges were withdrawn and I am not able to make a finding as to the circumstances of that evening except to say that Mr Cole and his group came to the attention of the police but ultimately no evidence was offered to the Court to support any charges. [14] I am satisfied that there are some risk factors present in this case. Mr Cole has a long history of anti-social behaviour and excessive use of alcohol. Many of the charges and convictions relate to violent offences. There is one drug conviction, although Mr Cole claims that the marijuana belonged to his partner at the time. He experienced a very difficult childhood and is still learning how to deal with his childhood experiences. He has come to police attention quite recently after a prolonged period without any charges against him. [15] There are numerous protective factors. Mr Cole has taken determined and difficult steps to move away from his past. He has dramatically decreased his drinking, he is connected to his culture, he has formed positive and respectful relationships with community leaders and colleagues. Mr Cole has acknowledged the need to develop tools and strategies to cope with challenges in his life and is open to learning and developing those tools. He is highly valued in his work environment where he consistently demonstrates restraint and appropriate behaviour. His witnesses have not seen him engaging in anti-social behaviour over the last number of years, despite being subjected to derogatory comments and challenging circumstances. He is highly motivated to achieve a stable lifestyle to provide a good example for his children and his community members. [16] A Blue Card is issued unconditionally and would allow Mr Cole to work unsupervised with children across a range of circumstances. In making the original decision, the respondent found that “The applicant’s history contains multiple charges and convictions for violent offences. As discussed above, this suggests he has a propensity to respond violently when faced with conflict which raises concerns about his capacity to safeguard children in situations when conflict or confrontation may occur and to be an appropriate role model to them.” I accept that the history does raise those concerns. I am satisfied, however, that Mr Cole has demonstrated that he has moved on from his history and is committed to a new way of life. Mr Cole’s criminal history was in the context of a very difficult childhood, alcohol abuse and immaturity. He is receiving ongoing support to deal with his family difficulties, he has dramatically reduced his alcohol use and he has matured with age and the responsibility of providing for his family and supporting his community. He has demonstrated his -- 8 of 9 -- 9 capacity to respond to conflict and stress in a thoughtful and mature and appropriate manner. [17] The central focus of the legislation is the protection of children. On balance, I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for Mr Cole to be issued with a Blue Card. Mr Cole has demonstrated an ongoing commitment to positive and pro-social behaviour and interaction with the community. He is working in an environment where the importance of receiving support is recognised and encouraged. Mr Cole is himself open to making use of support available to him to ensure that he does not return to his previous lifestyle. I am not satisfied that this is an “exceptional case”. The respondent’s decision is set aside. -- 9 of 9 --