Cox v Commission for Children and Young People and Child Guardian [2013] QCAT 120

CITATION: Cox v Commission for Children and Young People and Child Guardian [2013] QCAT 120 PARTIES: Michael John Cox (Applicant) v Commission for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML173-11 MATTER TYPE: Childrens matters HEARING DATE: 19 October 2012 HEARD AT: Rockhampton DECISION OF: Philippa Beckinsale, Presiding Member Paul Wonnocott, Member DELIVERED ON: 14 March 2013 DELIVERED AT: Rockhampton ORDERS MADE: The decision of the Commissioner for Children and Young People and Child Guardian made on the 6 April 2011 to issue a negative notice and refuse the blue card application for Michael John Cox is CONFIRMED CATCHWORDS: REVIEW JURISDICTION – BLUECARD – where conviction of non-serious offences and other offences – whether an exceptional case – factors in determining whether an exceptional case. APPEARANCES and REPRESENTATION (if any): APPLICANT: Michael John Cox represented himself. RESPONDENT: Commissioner for Children and Young People and Child Guardian (CCYPCG) represented by Georgina Thomas. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Cox is a 41 year-old screen fabricator/installer .He is in a relationship with Stacey Sutherland. There are two children of the relationship aged six and eight years. Mr Cox had a difficult upbringing. He has a lengthy criminal history spanning over 20 years. Most offences were for drugs or dishonesty. His employer advised him that his employment might be terminated if he did not obtain a blue card. [2] A Paid Employee blue card application was the subject of a negative notice by the Commissioner for Children and Young People and Adult Guardian. Mr Cox seeks a review of that decision. [3] A screening process in relation to blue card applications was established under Chapter 8 of the Commissioner for Children and Young People and Child Guardian Act 2000. The paramount consideration of the Act is the welfare and best interests of children, and in making employment screening decisions the protection of children from harm and promotion of their wellbeing. [4] Mr Cox’s offences were non-serious offences under the Act. The Commissioner was required to issue him with a Positive Notice unless satisfied that the case was an exceptional case for Mr Cox not to be granted a Positive Notice. The tribunal must consider whether this is an exceptional case in which it would harm the best interests of children if Mr Cox were to be issued with a Positive Notice and a Blue Card. [5] In the matter of the Commissioner for Children and Young People and Child Guardian v Maher and Anor the Queensland Court of Appeal took the view that in considering the circumstances which amounted to an exceptional case, it was appropriate to identify and balance potential risk factors and potential protective factors. Protective Factors [6] There are a number of potential protective factors regarding Mr Cox’s suitability to hold a Blue Card that were identified in evidence before the tribunal. [7] Cessation of drug use: There was no evidence before the Tribunal that Mr Cox has used drugs since his last conviction in 2009. [8] Permanent employment: Mr Cox has held the same job for two and a half years notwithstanding limitations on his usefulness to his employer due to the negative notice. In evidence before the Tribunal Mr Cox placed considerable emphasis of the issue of retaining his employment. [9] Stable Relationship: Mr Cox’s relationship with his partner Stacey Sutherland appears to have stabilised over the last three and a half years. For several years prior to that there had been numerous separations. -- 2 of 4 -- 3 [10] Observed relations with children: There was limited evidence from family and work associates that Mr Cox is able to relate appropriately to both his own children and other children. Risk Factors [11] However there are a number of significant risk factors regarding Mr Cox’s suitability to hold a Blue Card which were identified in evidence before the Tribunal. [12] Mr Cox’s criminal history: Mr Cox has a lengthy criminal history. It contains fifty entries for drugs and dishonesty. [13] There was a pattern of sustained drug use up until his last offence in 2009. Most offences have taken place in residential premises. Drugs or drug paraphernalia have been found in accessible locations within the premises where Mr Cox was living. On one occasion Mr Cox’s children were present when police located a used syringe in the kitchen of the house where Mr Cox and the children were residing. He separately admitted to police that on occasions he smoked cannabis in a closed room while his children were elsewhere in the house. Some offences have occurred at times when there was a likelihood that children may be present. His last offence took place at his partner’s residence at 5pm on a school day. This is a time when there would be some likelihood of his children being present. [14] On most occasions other adults have been present. Mr Cox admits in evidence that up until 2009 he was associating on a regular basis with other drug users. [15] Mr Cox has not received any drug counselling. He has not undertaken any drug rehabilitation treatment. Mr Cox has not been able to identify any underlying causes of his drug use. He has not developed any preventative strategies to reduce the possibility of a relapse at any time. [16] Mr Cox’s lack of insight into drug use: Mr Cox regularly used drugs for over twenty years and was often a daily user of cannabis. He used amphetamines less frequently. He displays no insight into why he was so deeply involved in drugs. Mr Cox gave evidence that at no stage did he ever consider that he was addicted, even though he admitted that there lengthy periods when he was always under the influence of drugs. Mr Cox views his drug history as a thing of the past, notwithstanding that he still experiences the urge to use drugs. He admits that it would only take one situation to take him back to where he was six years ago. [17] Mr Cox’s lack of insight into the impact of his drug use on his children: Mr Cox has shown some limited insight into the impact of a difficult childhood on his own upbringing. He showed very little insight into the impact of his offending behaviour on his own children. -- 3 of 4 -- 4 [18] Lack of appropriate level of support by Mr Cox’s partner: Mr Cox says that he has the strong support of his partner Stacey Sutherland in his efforts to stay clean of drugs. Mr Cox’s drug use has impacted on their relationship and the relationship with his children and has been a significant factor in previous breakups of their relationship. However she continued to allow Mr Cox access with the children, even when she knew that he was still regularly using drugs. [19] She never encouraged him to seek professional assistance for his drug use and in evidence minimised the seriousness of drug use in society. Decision [20] On the evidence provided the Tribunal finds that the potential risk factors significantly outweigh the potential protective factors. The Tribunal finds that this is an exceptional case in which it would not be in the best interests of children for Mr Cox to be issued with a positive notice and a blue card. The Tribunal orders that the Commissioner’s decision to issue a Mr Cox with a negative notice be confirmed. Non Publication Order [21] The Tribunal is satisfied that it is contrary to the public interest that the names of the witnesses, and the organisation named in this decision should be identified. [22] The Commissioner does not oppose the making of a non publication order. [23] The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of blue card matters, the decisions made by the tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified. -- 4 of 4 --