COJ v Commision for Children Young People and Child Guardian [2014] QCAT 320

CITATION: COJ v Commision for Children Young People and Child Guardian [2014] QCAT 320 PARTIES: COJ (Applicant) v Commision for Children Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML031-14 MATTER TYPE: Childrens matters HEARING DATE: 30 May 2014 HEARD AT: Southport DECISION OF: Member McDonald DELIVERED ON: 11 June 2014, reasons delivered 25 June 2014 DELIVERED AT: Southport ORDERS MADE: 1. The Commission’s decision of 14 February 2014 to issue a negative notice to COJ is set aside. 2. The Commission is to issue a positive notice to COJ. 3. The Tribunal prohibits the publication of the names of the child of the applicant and the applicant in these proceedings. CATCHWORDS: Negative notice for a blue card; whether exceptional case Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Re TAA [2006] QCST 11 APPEARANCES and REPRESENTATION (if any): APPLICANT: COJ RESPONDENT: Craig Capper -- 1 of 7 -- 2 REASONS FOR DECISION [1] COJ, (hereafter COJ) was issued with a negative notice for a blue card by the commission 14 February 2014, on the ground that they found hers to be an exceptional case in which it would not be in the best interests of children to issue a blue card. Her criminal history involved two breaches of domestic violence orders, and common assault. The latter, assault was upon her own daughter. Each of the offences occurred in the context of COJ’s intoxication. [2] None of these of these offences were serious offences, within the meaning of the Commission for Children and Young People and Child Guardian Act 2000, (the Act) but the Commission considered the circumstances of the offences and concluded that she should not be issued a blue card. [3] COJ sought review of this decision before QCAT. Essentially her case is that she has completely turned her life around, eliminating alcohol from her life which had been a trigger for each of these incidents. [4] The Tribunal must consider the application in light of the relevant law. The starting point is s 221(1) and 221(2) of the Act which requires a positive notice to issue where an applicant has been convicted of an offence other than a serious offence unless it is satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice. [5] In determining whether this is an exceptional case, which is not defined in the Act, the Tribunal is guided by the paramount consideration of what is in the best interests of children. Exceptional cases are determined on a case bay case basis, having regard to this principle1, and s 226(2) of the Act. [6] Section 226(2) requires the Tribunal to have regard to the certain factors in determining whether an exceptional case exists. The Tribunal has considered that COJ has convictions for two breaches of domestic violence orders, and a common assault against her 12 year old daughter. She also has an offence of assault /obstructing a police officer. None of these offences are serious offences within the meaning of the Act. The penalties that the court has applied in each of the circumstances have been either a fine, with no convictions recorded or good behaviour bond for 6 months, and 12 months for the assault on her child. No convictions were recorded. There is no material before the Tribunal about the courts reasons for its decisions in these matters but notes that each of these are comparatively lenient penalties. 1 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. -- 2 of 7 -- 3 [7] Under s 226(2) the Tribunal must consider the nature of the offence and its relevance to employment with children, and also anything it considers reasonably relevant to the assessment of the person. [8] The offences relate to acts of physical violence, and each occurred while COJ was intoxicated. In 2007 there are two offences for breach of a domestic violence order in which she was the Respondent. In the first offence on 14 January 2007, she grabbed the male complainant and tried to pull him to the ground, later attempting to hit him in the head with a beer bottle. Later that evening she bit this same person’s ear multiple times drawing blood while he was sleeping. [9] In a later offence committed on 25 August 2007, the applicant was found to have punched her then defacto in the head after he pushed her face into the kitchen bench. She was released by entering a $350 recognisance of her own undertaking to be of good behaviour for 6 months. [10] Common assault committed on 21 October 2009, was upon COJ’s daughter, who was 12 years old at the time. This is particularly concerning to the Tribunal. Police briefs indicate that in this event, COJ was angry at her daughter for not coming upstairs where COJ’s ex-defacto was. COJ was intoxicated at the time. Her daughter had indicated she was scared of the COJ’s ex-defacto. Her daughter had found him hanging when he had attempted to commit suicide some months earlier. COJ yelled in her daughter’s face, and told her she would kill herself. She left and returned some time later, and when her daughter refused to come, she grabbed her by the hair and pulled her hair to get her to come up the stairs. Some time later when the police were present, she returned to her daughter and pushed her off the bed and onto the floor where she stood over her and pushed her to the wall. She then threatened to kill herself. The attack on her daughter was a sustained attack and demonstrated no insight into her daughter’s emotional or safety needs. [11] The court in this instance ultimately imposed an18 month good behaviour bond which was reduced to 12 months on appeal. [12] The Tribunal notes significantly that these offences were committed by a mature aged woman between the ages of 32, 34 and 38 years of age. The most recent offence was committed in 2012. WITNESSES [13] The Tribunal considered the evidence of Tania Kalkidis, COJ’s psychologist. Ms Kalkidis indicated that COJ had come to her shortly after she had made a decision to stop using alcohol. She understands that she has been abstinent from alcohol intentionally and continues to make the choice to not drink, along with other healthy choices in her life. [14] Ms Kalkidis noted that COJ’s alcohol issues were secondary to other issues, and COJ had been working with her on both removing the -- 3 of 7 -- 4 addictive process and the underlying issues, which she indicated included insecurities from childhood. She considered that COJ had developed insight in to these underlying issues, although not completely finished her self development work. She indicated that COJ is taking greater responsibility. She has sought out therapy for her daughter to deal with her unresolved trauma and is supporting her daughter through this process. [15] Ms Kalkidis considers that COJ has developed protective strategies that give her support to prevent relapse. She confirmed that COJ has shown a preparedness to seek counselling when there are stressors in her life, and that she and her partner are acutely sensitive and responsive to this. In April of this year, COJ sought out Ms Kalkidis in dealing with an underlying issue. She is aware that COJ has supportive networks around her. [16] Ms Kalkidis indicated that COJ was beyond denial of her alcohol issues. She considers that denial was in the past pervasive, and that she has now moved beyond this in the last 6-9 months. While she considered that COJ was “not out of the woods”, she was comfortable with her commitment and progress to date and is not aware that she has relapsed at any time. [17] COJ’s own evidence was that she had not been a drinker until she was in her thirties, but due to a period of difficult and violent relationships between 2004 and 2010, she turned to alcohol. She acknowledged that she was not able to handle alcohol, but did not identify as an alcoholic. She describes a turning point after the incident in 2012 (which gave rise to the obstruction of the police officer offence), when she determined to give up alcohol permanently. She said at this point she had sunk to rock bottom. She described herself as taking leave of her senses based on her insecurities, and her partner called the police because of her aggression. The morning following the incident she attended Alcoholics Anonymous daily for 3 months. She said she has not resumed alcohol consumption since that incident. [18] Despite a separation from her partner she continued her resolve not to use alcohol as a coping mechanism for her self and her daughter. [19] She joined the gym, obtained her Reiki certificate and engages regularly in self healing. She has become a practising Catholic, and worships with her partner, who has supported her to join the Catholic faith. [20] She commenced weekly meditation classes, and made a conscious decision to disconnect from her former social network that drank. She replaced her social network with a motor bike rider’s network, and she indicated that they do not drink. They instead ride motor bikes and go to coffee shops. [21] She reflects upon herself in the years that she was drinking, and indicated she did not like the person that she was. She acknowledged in the past she drank because her social networks drank, and she continued to make poor choices, having a low self esteem at the time. -- 4 of 7 -- 5 [22] COJ’s reflection on the assault upon her daughter indicated that she carries much shame for her behaviour, and in the Tribunal’s view has developed insight into the impact of her conduct upon her daughter. She appears to hold significant remorse. She said she may never know the damage that she did in that incident to her daughter, but acknowledges that the child would not have felt mentally safe. She indicated that she was the only person her child had, and the act was selfish, and broke the child’s trust in her mother. She said that scary person doesn’t exist anymore. She rejected the poor role model she had been to her daughter in this and the previous offences, and indicated shame. [23] She considers that she now offers her daughter a role model of being a hard worker, high achieving student, who has a stable and happy family life. She considers she now offers a positive role model by the example of her current life, in contrast to her earlier life of unpredictability driven by alcohol. [24] COJ spoke of an understanding of stress triggers which have led to drinking behaviour in the past. She indicated that prior to counselling; she would react to insecurities and turned to alcohol to cope with her feelings. She stated that while her insecurities are there they are not at the level they previously were, and she manages her negative feelings by doing a positive behaviour rather than drinking. She indicated that she would go to the gym, take the dog for a walk, go shopping, or have a sleep rather than take a drink. She considers exercise releases endorphins and will do tis when she finds something “bugging" her. She uses this approach in disputes in her relationship and they will have a brief time out, go for a walk, or take a bike ride if things become tense. [25] She indicated that there have been recent significant stressors whereupon she has withstood the need to return to alcohol, and instead sought out her counsellor Ms Kalkidis. The incident of workplace bullying and anxieties around not being able to do nursing were part of what motivated her to seek out the support of Ms Kalkidis in April of this year. [26] Ms Kalkdis considers she has a strong support network noting her partner as her primary support. She also claims to be well supported by her mother who lives in Mount Tamborine, a short motor bike ride from her, and her counsellor. She notes a sister whom she counts in her support network. [27] She considers that there is no risk she would return to drinking, but would connect with Alcoholics Anonymous immediately if she ever felt an inclination. She said she had seen the destructiveness alcohol had played in peoples lives, through the honesty of the participants, and was observed the truth of what alcohol offers, and the damage it does. She said she presently doesn’t feel the need to go back to them, but it would be a deterrent for her if she ever felt an inclination. [28] COJ called FL, her mother as a witness. FL is a justice of the Peace. She indicated knowledge of the three offences. She told the Tribunal that COJ -- 5 of 7 -- 6 had changed significantly since 2012. She is proud that she has not seen her take a drink since that time, and although she has specifically drank in front of her, has seen COJ resist any temptation to drink. She sees that COJ has undergone a dramatic change, having taken up constructive hobbies, commenced a new career path in nursing, and benefitted from counselling. [29] She considered that COJ’s negative relationships in the past have been a factor which has influenced her, but that she is now in a settled relationship with a non drinker, who is very supportive to her and a positive influence. [30] She is aware that COJ will use strategies to manage her stress that do not involve alcohol since 2012, including calling her mother, or psychologist. She said she knows that she has changed, because she no longer dreads the phone ringing in the evening, previously being worried about her drinking behaviour and associated risks. FL was confident that COJ was determined to keep away from alcohol, and work toward her career and family goals. She told the Tribunal, “She is on that road… this kid is not going back!” [31] LF is COJ’s fiancé. He is a registered Nurse. He has observed COJ’s journey of change, and considers he has played a significant role in it. He himself is a non drinker, and noted that in the early relationship COJ did drink considerably, but after the 2012 incident and their short term separation around that time has not shirked from her resolve to remove alcohol from her life. They have open discussions. [32] He confirmed that her social network is devoid of her former drinking buddies. He confirmed that she has taken up activities with like minded people. He noted she is engrossed in her studies and dedicated to her new career. [33] He indicated that they have a supportive relationship where they can address issues of concern with each other and are support person for one another. DISCUSSION [34] The Tribunal considers that the balance of the evidence indicates that COJ has had a major life change since 2012 and has cut alcohol out of her life. The Tribunal accepts COJ’s evidence that this conscious decision was made on the basis that she has acknowledged that alcohol had led her into destructive behaviour patterns, and she sought to eliminate it from her life. This choice appears to have been supported by a range of positive coping mechanisms providing her with alternatives to alcohol. Significantly, she has understood the need to replace her social network with positive influences and has disengaged from people that encouraged her to drink. Her witnesses support her contention that she has been resolute in avoiding alcohol since her decision to cut it out of her life in 2012. COJ has observably made significant progress in her life, moving -- 6 of 7 -- 7 toward a new career as a nurse, and sustaining what she considers to be a very healthy relationship. [35] She appears to have very strong support networks and has demonstrated willingness to make use of these in times of stress, rather than return to alcohol. [36] COJ’s shamefully acknowledges the offences of 2007, 2009 and 2012, but claims to have had a transformation since that time. Her witnesses support this contention, and appear observably proud of her of doing so. [37] The offences were committed at a time when she was mature aged, and the most recent was relatively recently. The nature of the offences was violent and aggressive. Each offence was committed under the influence of alcohol which appeared to fuel COJ’s aggression. The Tribunal accepts that alcohol has been the major contributing factor in each of these offences. The Tribunal is however satisfied that COJ’s transformation has been sufficiently radical to displace any concern generated by this. She certainly demonstrated to the Tribunal remorse and a clearly articulated shame around these incidents. In particular she demonstrated insight into the emotional harm she had caused her daughter in the 2009 incident, and while she continues to work to repair this relationship, gave a clear understanding that there was likely to have been long term psychological damage to her child, and has taken action to ensure that her daughter has access to psychological intervention to address these issues. In light of the decision in Re TAA2, the tribunal considers this insight is a protective factor. [38] It has been a short passage of time since her last offence in 2012 when she was a mature person. However, the Tribunal considers the protective factors including strong supports, a healthy relationship, active community involvement, strong goal focus career progression, committed and ongoing psychological intervention, combined with insight and remorse significantly outweigh these risk factors. [39] The Tribunal is not satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, a positive notice must issue. [40] The Tribunal may of its initiative make a non publication order pursuant to section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), if it is in the interests of justice. The Tribunal has formed the view that the it is in the interests of justice that the name of the child remains confidential and the name of the applicant, in order to avoid identification of the child. 2 Re TAA [2006] QCST 11. -- 7 of 7 --