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  4. RPG v Chief Executive Officer, Public Safety Business Agency - [2015] QCAT 485

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RPG v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 485

RPG v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 485

CITATION:

RPG v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 485

PARTIES:

RPG

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML113-14

MATTER TYPE:

Childrens matters

HEARING DATE:

7 September 2015 and 7 October 2015

HEARD AT:

Ipswich

DECISION OF:

Member Feil

DELIVERED ON:

16 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice is set aside and a positive notice is to be issued.
  2. The Tribunal prohibits the publication of the name of the Applicant, his former wife, any children identified, and all identifying particulars of those children and other persons which may lead to the identification of the children.

CATCHWORDS:

CHILDREN'S MATTER – BLUE CARD – where applicant’s positive notice was cancelled - where Applicant charged with an offence other than a serious offence over thirty years ago – where allegations of domestic violence- whether an exceptional case exists

Commission for Children and Young People and Child Guardian Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Kent v Wilson [2000] VSC 98

Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348

APPEARANCES:

  

APPLICANT:

RPG appeared for himself

RESPONDENT:

Ms Kylie Heath represented the Chief Executive Officer of the Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    The former Commission for Children and Young People and Child Guardian (“the Commission”) issued RPG with a blue card on 4 October 2006, 29 September 2008 and 13 October 2010. While the Commission received complaint information on 16 July 2012, it did not receive any Police or disciplinary information to allow a reassessment of RPG’s positive notice. Therefore, following RPG’s fresh blue card application on 25 November 2013, the Commission issued a negative notice on 30 May 2014.
  2. [2]
    From 1 July 2014, the Working with Children (Risk Management and Screening Act) 2000 (Qld) (“the Act”) came into effect. This means that decisions formerly made by the Commission are now made by the Chief Executive Officer of the Public Safety Business Agency (“the Agency”).
  3. [3]
    RPG was convicted on 4 February 1983, of one charge of driving a motor vehicle with a blood alcohol content of .06%. He was fined $60.00. He has no other charges or convictions. RPG was born on 5 April 1963.
  4. [4]
    While no oral evidence from the Department of Communities, Child Safety and Disability Services (“the Department”) was given, the Tribunal received the Department’s file which shows that RPG was previously the foster carer with his then wife RS, of five children.
  5. [5]
    The Agency’s decision to issue a negative notice substantially relates to an incident on 5 February 2012, involving RPG and RS (“the incident”). No charges resulted from that incident.
  6. [6]
    As RPG has one conviction for an offence other than a serious offence, a positive notice must issue unless the Tribunal is satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to RPG.[1]
  7. [7]
    The screening of persons for child related work is administered under the principle contained in Section 6 of the Act that the welfare and best interests of children are paramount, and that every child is entitled to be cared for in a way that protects a child from harm and promotes the child’s wellbeing. The Tribunal must consider not only the provisions of s 226 of the Act, but the paramount consideration. This paramount consideration is the one to which all others yield.[2]
  8. [8]
    The Tribunal must exercise its discretion after considering the circumstances of RPG’s case within these guiding principles, and after considering the object of the Act to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[3]
  9. [9]
    Section 226[4] sets out the factors which the Tribunal must consider in determining if there is an exceptional case for RPG. The evidence considered takes into account s 226 of the Act. Exceptional case is not defined in the Act. Whether a case is exceptional is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act.[5]

Evidence of the Incident on 5 February 2012

RS’s evidence

  1. [10]
    RS’s evidence contained in her application for a Protection Order (“DVO”) is that she and RPG travelled from Monto to their former residence near Gatton to collect property after the sale of the residence, when RPG used insulting and derogatory language. When she told RPG she would return to the motel where they were staying, RPG took the keys, sat in the driver’s side of the vehicle, and went into a “trance like state making a funny (low growling) noise from this throat”.
  2. [11]
    RS sat in the passenger’s side seat when RPG suddenly grabbed her lower arms, pulled her across the driver’s side of the vehicle and threw her onto the ground where he got on top of her, put his knee into her right chest throat area, and yelled and screamed at RS that everything was her fault. RS could hardly breathe and passed out. She woke on a pile of cow manure, climbed into the vehicle, the children got into the back of the vehicle, and she used her spare key to drive to Monto.
  3. [12]
    RS’s Police statement referred to her sitting with three of the foster children when RPG swore at her, and she indicated she was returning to the motel. She then referred to RPG rushing to the car, getting into the driver’s seat, taking the key out of the ignition, and sitting with a strange look on his face with his left eye rolled up making a gurgling noise. She got no response from RPG and told him to get out of the car and to let them go.
  4. [13]
    RS then refers to her ‘alarm senses starting to ring,’ and to her getting out of the car and removing a tomato knife from a picnic basket in the back of the car to defend herself as RPG was over six foot and 100 kilograms and as an ex army sergeant, he knew how to handle himself. RS then sat in the front passenger seat when RPG grabbed her arms, dragged her through the car, and threw her to the ground screaming at her. She was lying on her left side with RPG on top of her with his knee on the right side of her neck pushing her head hard into the ground. She stated that she must have blacked out.
  5. [14]
    RS then stated that she crawled to the car and got in the driver’s seat where she sat and told one of the children to ‘get your brother and sister and hop in the car, we’re going back to the motel.’ RS then drove back to the motel in Gatton, packed up the children’s belongings, and drove to Toowoomba. The next day she drove to Monto and the following day she saw a Doctor at the Monto Medical Centre.
  6. [15]
    RS then attended Officer Browning at Monto Police Station on 7 February 2012, two days after the incident. Officer Browning took photos of RS’s injuries and made a report for a DVO. RS referred to her right ribs being swollen and bruised, and to her right collarbone being bruised.

Senior Constable Browning’s evidence

  1. [16]
    An affidavit of Senior Constable Browning was made on 6 May 2012, three months after the incident. Officer Browning has been unable to give evidence due to health reasons for some months. The Tribunal received advice that giving evidence would be detrimental to his recovery. On that basis, the hearing proceeded in the absence of his oral evidence.
  2. [17]
    Officer Browning’s affidavit refers to the incident on 5 February 2012 as related by RS to him on 7 February 2012. His evidence varies from that contained in the Protection Order application, as it refers to RS going to the rear of the vehicle and removing a paring knife, and then sitting in the front of the vehicle.
  3. [18]
    Officer Browning’s affidavit refers to circumstances referred to in the DVO being the same as the details of the incident, ‘except for where she stated that she picked up a knife and held it beside her leg.’ He referred to RS doing this for her own safety because of the degree of fear she felt in the circumstances. Officer Browning explained that he did not refer to the knife in the DVO, as that referred to RS’s actions rather than those of RPG, and because the knife referred to being a small paring type knife, did not ‘include any production or threats.’
  4. [19]
    Officer Browning’s affidavit referred to him seeing a number of RS’s injuries including bruising to both forearms, scratches to her right forearm that appeared to have been caused by fingernails, bruising to her right upper chest, and a lump to the top right of her forehead.
  5. [20]
    Officer Browning’s affidavit refers to his belief that the injuries sustained by RS resulted from a domestic violence incident where RPG assaulted her, and to his belief that incidents of domestic violence would occur in the future. Officer Browning gave as a basis for this belief, the known demeanour of RPG towards RS, his domineering and over bearing character towards RS which has previously been reported to Police, and which was observed by Officer Browning during his visit when seizing weapons.
  6. [21]
    Officer Browning referred to instances of past psychological domestic violence perpetrated towards RS by RPG, involving demeanour and language used by RPG of a degrading nature. He referred to RS continuing to express to him, her fear of RPG.

The Department’s evidence

  1. [22]
    The Department’s documentation refers to two notifications of concern made on 26 March 2007 and 5 May 2010, which were unsubstantiated. The third notification, which was substantiated, related to the incident on 5 February 2012. The incident is described as:

RPG subjecting RS to asphyxiation/strangulation and other violent acts which all three subject children witnessed. As well, RS was subjected to emotional abuse preceding/during the incident. As a consequence the individual sustained concussion, rib fractures, possible internal injuries to her kidneys, and significant bruising to her torso.

A further entry referred to RS having a ‘possible cracked rib to her right side.’

  1. [23]
    The Department found RPG had breached the standard of the children receiving emotional care in that they had experienced harm and his actions had contributed to the harm or risk. RS was not assessed as having breached the standard.
  2. [24]
    The Department referred to RPG not taking responsibility for his actions, although he acknowledged that witnessing the event was not good for the children. It referred to RPG justifying the assault of RS and portraying himself as the victim, as an act of self-defence as a result of the knife being present, despite RS’s physical injuries.  He tended to blame RS for problems in their relationship and the incident of domestic violence. It referred to RPG’s suggestion that RS have a psychological assessment as her health issues had been significantly affected by her mental state.

RPG’s evidence

  1. [25]
    RPG gave evidence that he and RS had travelled to their Junction View property near Gatton, to remove items from that property. There was a falling out between RS and the buyer, and RS became very demanding as to the rate at which RPG was working, which he considered was a steady rate.
  2. [26]
    An argument ensued relating to RPG moving a bench. As a result, RS indicated she was leaving. This would have left RPG abandoned without a vehicle and having to traverse nine slippery causeways with water across them. RPG stated that when RS threatened to leave him he was not angry, but a little frustrated as to how he would deal with being left in the middle of nowhere having to walk across dangerous causeways. To avoid this, RPG sat in the car. RS then approached him and demanded he get out of the vehicle. The youngest child was sitting in the back of the vehicle.
  3. [27]
    RPG stated that he did not remove the car keys as alleged. He referred to a later conference with solicitors when RS advised him that she couldn’t remember who had the keys, and she thought RPG had taken them out of the ignition. RPG stated that he was sitting with his legs out of the driver’s side of the vehicle, and RS was standing beside the open driver’s door just out of arms reach. RPG was extremely concerned as RS was extremely argumentative and demanded that he get out of the vehicle.
  4. [28]
    RPG stated that RS then went to the back of the vehicle and took out a tomato knife approximately 6 to 8 inches in length, (not a paring knife as stated by Officer Browning). She moved away from the driver’s side and started getting into the passenger’s side of the vehicle with the knife in her hand. She held the knife in a stabbing gesture and demanded he get out of the vehicle. RPG did not think he could get out of the 4WD Terrican vehicle safely, as he needed two hands to lift himself out of the vehicle.
  5. [29]
    RPG stated that he is 6 feet in height and at the time of the incident, he would have weighed 100 kilograms. He described RS as being 5 feet 8 inches to 5 feet 10 inches in height, and 80 kilograms. He stated that he ‘did not have to bend down to kiss her.’ RPG referred to RS having a history of self-defence training, and to her applying for positions as a Judo instructor. He had no training in unarmed combat.
  6. [30]
    RPG was fearful of being stabbed while trying to get out of the vehicle and defend himself at the same time. As RS was getting in the car, he considered his only alternative was to disarm her by grabbing her wrist holding the knife with both hands. The knife dropped and he pulled RS through the vehicle to remove her from the knife. He pinned her to the ground restraining her on her side using his hands to hold her upper arm, placing his knee on her waist and his second knee on her neck, supporting most of his weight with his arms.
  7. [31]
    While RS appeared to pass out and her eyes were closed, she had rapid eye movement. RPG had observed this dissociative episode before with RS, when she was extremely stressed such as getting the children to appointments and meetings. RPG stated that RS did not pass out, and he did not obstruct her airways. He stated that rapid eye movement was unusual for someone who is unconscious.
  8. [32]
    RPG stated that he did not use force more than was necessary, and that he had no intention to harm RS. He referred to being extremely afraid and that this was difficult to comprehend ‘unless you are threatened by a knife’. He could not see that he would have acted any differently as there was no safe way for him to get out of the vehicle, there was great risk of harm to him, and he was quite frightened. He was not threatening towards RS. He stated that he used force that was necessary, and there was no “gratuitous violence”.
  9. [33]
    RPG stated that he attempted to calm the oldest two children who were 20 to 30 feet away. He picked up the youngest child who was crying. RS called the other two children over and drove off using her spare key.
  10. [34]
    RPG’s DVO was filed on 23 February 2012. It referred to the Respondent (RS) drawing a knife and threatening him with a knife, and to him having to disarm and throw the knife away from RS. He referred to the incident taking place in front of the three foster children. He referred to RS initially threatening to abandon him in the country approximately 30 minutes from where they had been staying without any means of transport, and to her subsequently leaving him in this situation.
  11. [35]
    That Application refers to RS’s multiple threats to harm or kill him in the previous three to four months. He referred to her threatening to kill him in his sleep, and to her previously drawing a knife on him and threatening to harm and poison him. RPG referred to RS admitting to drugging him on more than one occasion. RPG referred to RS’s mental health issues, and to her having spent time in Newfarm House Mental Health facility (presumably New Farm Clinic). He referred to her escalating passive aggressive state, to her previous attempt at suicide, and to her worsening mental health condition.
  12. [36]
    RPG stated at the hearing that he did not bring his DVO sooner, as he was conflicted about the situation and the consequences on the children, as the children would have been separated if his Application was made earlier. RPG now recognises that by doing nothing, there has been an impact on the children. While he was extremely concerned for his safety at the time, in hindsight his sense of commitment to the children overrode a better course. RPG referred to people staying in relationships of domestic violence, and that he can now recognise that he stayed in the relationship for reasons focused on the children’s interests. RPG indicated that it was very important that children be protected.
  13. [37]
    The Department’s interview with RPG referred to his recognition that seeing the incident was not good for the children. RPG explained that while there were verbal exchanges between RPG and RS, the children had a strong attachment to RS in particular, and the older children were especially upset at the prospect of being removed from her.
  14. [38]
    When asked about his minimisation of his involvement in the incident and his lack of insight, RPG responded that as confirmed by Dr Kirkup, he has a strong sense of “right and wrong”. He referred to making the Department aware that RS had a knife. He considered the Department’s finding of a matter of concern against him and not RS, as heavily weighted in her favour. He considered the Department maximised his involvement and that he did not act to harm RS, and did not hit her as alleged. He sincerely believed there was imminent risk of him being harmed. He did not respond out of anger.
  15. [39]
    In response to Officer Browning’s statement, RPG queried why if RS was afraid of him, she approached him. He stated that she was trying to goad him into an argument. He denied that RS held the knife to her leg as stated by Officer Browning, and that RS stated this to minimise her liability. RPG stated that at a mediation conference held in late 2012 / early 2013, RS stated she was advised to proceed with her DVO, due to her risk of being criminally charged.
  16. [40]
    RPG’s evidence is that he had only met Officer Browning once before when he attended Monto Police Station in relation to an enquiry regarding a semi trailer license.
  17. [41]
    In respect of his mental health, RPG referred to a workplace incident where he held misplaced trust in management, to his strong self of right and wrong, and to his need for an ordered environment. He considers laws should be exercised fairly, equitably and consistently. He referred to his former employer terminating his employment instead of providing him with rehabilitation.
  18. [42]
    RPG referred to his diagnoses of chronic depression and fatigue, previously diagnosed in 2000 as anxiety with mixed depression. He consults Dr Kirkup every three months and takes Effexor medication. RPG also has regular contact with a social worker.
  19. [43]
    He referred to dealing with things as ‘still a struggle’. RPG copes with feelings of stress or depression by discussing issues with Dr Kirkup and his social worker, by receiving support from his uncle, and previously through his community participation working with cadets. His strategies in dealing with stressors include working for certain periods then resting, his fortnightly contact with his social worker/counsellor, being aware of triggers with the main trigger being the ongoing burden of his illness, acknowledging his limited capacity to deal with more than once complex matter at a time, owning his feelings, recognising that there is “little point in inflaming something that is going nowhere,” and removing himself from arguments.
  20. [44]
    In terms of working with children if a situation arose when RPG couldn’t remove himself, he responded that he is a fairly patient man and gives children choices in response to their behaviours. He stated that he does not get annoyed a lot. When asked what he does if he gets angry, RPG responded that during a number of floods he observed ‘absolute despair at bureaucratic promises to help, and an inability to think outside the box’. He referred to being assertive with mature and capable people, and to ‘not suffering idiots’. He stated that this did not mean he transfers his assertiveness to vulnerable people like children, who are not treated the same way as adults.
  21. [45]
    RPG referred to the Department’s matter of concern being made after substantial weight was given to the Police report of the incident. That report was based on RS’s reports without an objective investigation, and on the basis that Officer Browning withheld information that RS had taken up a knife. RPG considered that as a result, the findings of the Department were compromised, as the Department did not consider that RPG’s actions were as a consequence of the threat posed by RS’s possession of a knife.
  22. [46]
    RPG noted that there had been verbal abuse between RPG and RS. He considered that the Department proceeded on a prejudicial basis of him being fully culpable, and that the matter of concern was not made against RS.

RPG’s Life Story

  1. [47]
    RPG referred to his upbringing with his brother, to his parents’ divorce, and to his divorce from his first wife after a relationship of twelve years. RPG met RS in 1998, married her in 2005, and they separated in February 2012, after the incident.
  2. [48]
    In respect of his employment, RPG delivered distance education courses for TAFE from 1994. There was a stressful work environment in that position due to lack of resources and tension with a co-worker. As a result, RPG was diagnosed with anxiety and took sick leave for six months. These tensions re-emerged in 2005. He suffered severe depression and was unable to work from March 2006. His compensation claim was settled in 2011, and his employment was terminated on the grounds of ill health. RPG then developed a farm and was an active member of the Army Reserve. In 2010 RPG and RS moved to Monto for family support.
  3. [49]
    RPG referred to RS’s marked change in her personality, to her being demanding and controlling, and to her passive aggression escalating to threats of physical violence, following her mother’s death in 2008. RPG was conflicted in seeking a DVO, due to the strong mutual attachment of the five children to RPG and RS. RPG felt trapped.

RPG’s Submissions

  1. [50]
    RPG’s submissions to the Agency dated 2 March 2014, referred in summary to the disagreement between RPG and RS on 5 February 2012, which has been set out above.
  2. [51]
    In respect of the hearing of RS’s DVO and RPG’s cross application for a DVO on 22 August 2012, he referred to the Police being unable to proceed with their case, to time delays in arranging for the same Magistrate to continue the hearing, and to the significant costs arising from a rescheduled hearing. As a result he gave undertakings to be of good behaviour towards RS, which he has not breached. RS gave similar undertakings. He has a current firearms license.
  3. [52]
    RPG stated that he defended RS’s DVO due to the significant detrimental impact on his farming business arising from the loss of his weapons license, if a DVO was made against him. He indicated that he intended to behave appropriately, and that he had no difficulty giving undertakings. He referred to his strong sense of justice.
  4. [53]
    RPG’s further submissions in response to the Agency’s Statement of Reasons dated 30 May 2014, refer to a number of concerns already referred to in this decision. RPG refers to the Agency making assumptions such as the events of 5 February 2012 being in the context of property settlement issues, when there was no separation at that time.
  5. [54]
    RPG expressed concerns as to the inferences that three notifications were made, when only one notification was substantiated. He referred to the Department’s findings being based on hearsay evidence, and to there being no record of him being charged or RS being hospitalised, as alleged. He denied making threats against RS.

Referees

Mrs L

  1. [55]
    Mrs L is RPG’s aunt. She provided an affidavit, which refers to the affidavit of Senior Constable Daniel Browning made on 6 May 2012. She denied any recollection of stating or having any reason to state as referred to in Officer Browning’s affidavit, that ‘RPG was very unpredictable and abusive towards RS’ (RPG’s former wife), and that ‘RPG is a very domineering and overbearing character towards RS.’ Mrs L’s affidavit confirms her support for RS when she requested it. However, she stated that her motives for doing so should not be construed in any way that is detrimental or prejudicial to RPG.
  2. [56]
    Mrs L stated that her observation was that RS could be ‘very demanding, controlling and domineering towards RPG, and could make life quite difficult for him.’ She observed, ‘Much of the conduct and behaviour that Senior Constable Browning attributed to RPG towards RS, more correctly describes the behaviour of RS towards RPG.’
  3. [57]
    In her oral evidence Mrs L indicated that the reason Officer Browning made these statements were because ‘he listened to RS, and she probably said things she shouldn’t have said.’ She gave an example of RS’s behaviour by stating that if RS wanted something done, it had to be done ‘now or yesterday’. She observed RPG to be more relaxed since his separation from RS. She described RPG’s strengths as his willingness to help anyone who needed help, to him always helping her husband Ian, and to him being easy to get on with.
  4. [58]
    She has not observed RPG to be angry. She observed him to be very good and firm but fair with the foster children. She stated that RPG would not harm them in any way. She confirmed that she had a lot of contact with RPG when the children were in his care. Mrs L stated that RPG wanted a blue card to help with cadets, and that she had no concerns regarding RPG working or engaging with children.

Mr L

  1. [59]
    Mr L is Mrs L’s husband and RPG’s uncle. He provided an affidavit made on 31 July 2014 which similarly denied any recollection of stating or any reason to state as referred to in Officer Browning’s affidavit, that ‘RPG was very unpredictable and abusive towards RS’, or that  “RPG is a very domineering and overbearing character towards RS.” Mr L’s affidavit confirmed his support for RS when she requested it. He stated that his motives for doing so should not be construed in any way which is detrimental or prejudicial to RPG. Mr L similarly stated that his observation was that RS could be ‘very demanding, controlling and domineering towards RPG and could make life quite difficult for him.’ He observed, ‘Much of the conduct and behaviour that Senior Constable Browning attributed to RPG towards RS, more correctly describes the behaviour of RS towards RPG.’
  2. [60]
    In his oral evidence Mr L confirmed with reference to his observation of RS, that she was ‘just that way inclined’ (with reference to her being very demanding, controlling and domineering towards RPG, and to her ability to make life quite difficult for him.) He referred to RS being inclined to ‘twist things’.
  3. [61]
    Mr L referred to RPG’s need for a blue card so he could ‘do something for the community.’ He referred to RPG’s previous involvement with the Fire Brigade in Gatton, and to his past experience with cadets. He could not indicate why Officer Browning would make his statement containing incorrect facts.
  4. [62]
    Mr L referred to RPG’s strengths as including his knowledge as a University lecturer, his varied experiences from his many years as an Army Staff Sergeant, and his cooking skills. He did not know of any weaknesses and could not indicate any situation where someone made RPG angry. His observations of RPG with children were that he was ‘quite good’ and that he ‘understands and explains things to children.’
  5. [63]
    When asked how Mr L got on with RS before ‘things went sour’, Mr L responded that ‘things could be twisted fairly well’ and that RS was a ‘drama queen’. He indicated that it was difficult to know (with reference to RS’s comments) if her statements were truthful or not. He indicated that he was “sometimes” cordial with RS and vice versa.

Mr H

  1. [64]
    Mr H provided an affidavit made on 28 July 2014 in his capacity as the Officer commanding the Army Cadet Unit at Monto. Mr H has known RPG since April 2013. He referred to RPG being a volunteer staff member at the Cadet Unit from May 2013 until March 2014, due to delays in renewing his blue card. Mr H referred to RPG’s positive contributions to the operation of the Cadet Unit in the training of Cadets and guiding staff. His contributions were valued and have been missed.
  2. [65]
    In his oral evidence, Mr H confirmed his affidavit and referred to RPG being an asset to the Unit. With reference to RPG’s interactions with children and young people, Mr H responded that in six months, he was a positive role model with a military background. He referred to RPG’s time in the Unit as three hours per week, and to half of that time being spent with children. In referring to RPG’s strengths, Mr H referred to his depth of knowledge as ‘phenomenal’. He referred to his weaknesses as the amount of time he could commit to the Unit. He referred to RPG attending 90% of the parades.
  3. [66]
    When asked about RPG’s response to being told about his blue card being taken away, Mr H explained that RPG understood the position and accepted it quite well. Mr H had no concerns or reservations about RPG working with children. If he did, RPG would not be working in the Unit. Mr H referred to RPG making full and frank disclosure of the issue of domestic violence and to it being a Police matter, which was resolved with no adverse effect.

Dr Brian Kirkup - Psychiatrist

  1. [67]
    Dr Kirkup’s report dated 16 February 2015, confirms that RPG has consulted him for the treatment of chronic depression and fatigue since April 2000. RPG has shown a partial response to treatment and is able to function reasonably in most areas of his life. Dr Kirkup referred to RPG being an extremely obsessive man with an intense sense of justice/right and wrong, and to him preferring an ordered environment and feeling quite bound by rules and regulations.
  2. [68]
    Dr Kirkup stated that since commencing anti depressant medication in 2000, neither aggression nor actual violence has ever been an issue. Dr Kirkup referred to his communications with RS prior to their separation in 2012. While she raised issues of RPG’s fatigue, apathy and withdrawal, she did not describe any incidents of violence or aggression. Dr Kirkup stated that he had not observed or been notified of any behaviours in RPG which would concern him about having dealings with children. Dr Kirkup supported his blue card application.
  3. [69]
    In his oral evidence given on 7 October 2015, Dr Kirkup stated that he has been practicing in Psychiatry since 1987. He had read the Agency’s reasons and was aware of the physical altercation between RPG and RS in front of the children. Dr Kirkup stated that he had spoken with RS on a few occasions when she made contact with Dr Kirkup over her concerns regarding RPG’s symptoms of depression worsening, and to him withdrawing and losing confidence. She has not spoken with Dr Kirkup regarding the incident and Dr Kirkup’s findings stem from statements made by RPG to Dr Kirkup.
  4. [70]
    Dr Kirkup confirmed RPG’s major diagnosis as major depression. In addition, he has chronic fatigue syndrome. In terms of his obsessive personality, RPG considered that there should be a place for everything, and that he likes things ordered. His obsession with justice and sense of right and wrong occurs when others change the ground rules without explanation, as occurred with his previous workplace and with Centrelink, where rules were set but not necessarily followed. This occurred as related by RPG with RS, where there was a set of rules for RS and a different set for RPG.
  5. [71]
    Dr Kirkup agreed that it was not unreasonable to add a diagnosis of Post Traumatic Stress Disorder (PTSD), as RPG has some depressive symptoms from the trauma he sustained at the hands of staff at his previous employment. Dr Kirkup indicated that RPG’s depressive symptoms manifest by him withdrawing, losing confidence, functioning at a lower capacity, but not as aggression or anger. His PTSD symptoms manifest as anxiety with some irritability, which RPG has not shown for a long time. Dr Kirkup agreed that RPG’s symptoms of withdrawal could occur within the family unit, but were more evident within the workplace setting.
  6. [72]
    While RPG has suffered less since he left his toxic workplace, he is still unable to function at his previous level. His capacity for sustained work and concentration is diminished at his farm workplace, rather than in the home. Dr Kirkup considered that the Department’s reference to RPG withdrawing from the children, not speaking to them and being moody, stems from RPG’s depression and increasingly toxic relationship with RS (RS). He considered on the basis of RPG’s statements to him, that RS was more openly aggressive than passive aggressive, and that leading up to the incident she seemed to be antagonising RPG and “looking for a fight”.
  7. [73]
    RPG consults Dr Kirkup every couple of months. He considered that RPG had reached a plateau where his major issue is his chronic fatigue and his running of his farm. RPG is currently treated with an anti depressant Effexor. The dosage of 225mg is a moderately high dose, which is holding RPG’s mood. His therapy with Dr Kirkup involves discussing his symptoms. Dr Kirkup considers that RPG has nothing further to gain from him, as he is stable and is maintained on his medication. His future treatment will be ‘more of the same.’ Dr Kirkup encourages RPG to be involved in as many recreational activities as possible, to assist his mental health.
  8. [74]
    Dr Kirkup suggested that RPG see a counsellor given his past issues with RS and his past work issues, to help him cope with things as they are. Dr Kirkup acknowledged that RPG had independently seen a counsellor from 2006, prior to Dr Kirkup making this suggestion, on the basis of the events at RPG’s workplace at that time being extreme. He explained that those events involved RPG’s former employer refusing to modify the workplace to facilitate his return to work by protecting him from contact with certain people, and instead not re employing him. Dr Kirkup based his views on RPG’s statements and reports, which Dr Kirkup received at that time.
  9. [75]
    Dr Kirkup stated that RPG is well aware of his triggers, which occurred primarily in his previous workplace as interpersonal conflict, and people changing rules. This impacted on RPG’s organised personality structure and resulted in workplace distress and conflict. RPG is aware of his fatigue triggers and paces himself and rests in between carrying out work.
  10. [76]
    RPG’s strategies if he experiences similar conflict are to withdraw, take time to think the issue over and talk to somebody independent, rather than to over react and get caught up in the conflict. This was evident in his former workplace and during the incident as relayed by RPG when he felt threatened by RS, but was unable to apply normal strategies and withdraw.
  11. [77]
    In respect of RS’s evidence that RPG at the time of the incident appeared to be making growling noises and in a trance, Dr Kirkup considered that RPG under intense stress may have dissociated and mentally withdrawn because he could not withdraw physically. Alternately and as relayed by RPG to Dr Kirkup, in past dealings what RS said might not always have been precisely true and what she said needed to be taken ‘with a grain of salt’. If this was the case, RPG may have withdrawn in this manner if he did not want to respond aggressively.
  12. [78]
    In respect of the link between RPG’s diagnoses and how he reacts to stress and conflict, Dr Kirkup stated that his long term reaction relates to his diagnoses such that if RPG is chronically under pressure, he is likely to withdraw. In an immediate situation relating to his obsessive personality style, RPG is more likely to not function so well and withdraw, as principally occurred at his former workplace, rather than in his day to day functioning. Dr Kirkup was not aware of any acts of violence or aggression by RPG. He referred to RPG becoming angry within himself in his previous workplace, when he was not fairly dealt with.
  13. [79]
    Dr Kirkup stated that the only time where he considered RPG’s condition could result in verbal and physical aggression, was if he was actually being attacked and could not withdraw, resulting in possible verbal aggression. He was unaware of any incident of physical aggression by RPG in the workplace.
  14. [80]
    In respect of considering other medication, Dr Kirkup stated that RPG’s partial response is the best that he would get to given that his primary symptoms of fatigue are partly driven by his depression. Dr Kirkup stated that blood tests show evidence of RPG having Q Fever and Ross River Fever in the past, which can lead to permanent fatigue with little evidence that these conditions are responsive to any treatment. Medications trialled to increase energy levels have failed as the side effect of increased anxiety has occurred.
  15. [81]
    In support of RPG’s application, Dr Kirkup indicated that his view was based on whether he considered RPG to be a risk to children. From his involvement in a previous blue card application, Dr Kirkup understood that if RPG was issued with a blue card, it was unconditional, fully transferable, and that RPG could be involved with children of all ages. He had no evidence that RPG was a risk to children of any age, and had no concerns about him being granted a blue card, despite evidence of his ongoing depression and social withdrawal. Dr Kirkup stated that RPG could work on his mental health by being involved in social activities and pursuing social activities outside work. His desire to work with children is one reason why he seeks a blue card as his involvement with youth groups has lifted his spirits and given him a great deal of pleasure.

The Chief Executive Officer’s Position and the Risk Factors

  1. [82]
    The Agency’s reasons refer to threats made by RPG to RS’s life ‘over the weekend’. Ms Heath identified the weekend as the weekend prior to 16 July 2012. RPG denies making such threats. He indicated that at that time he was subject to a temporary DVO and was not breached in respect of that Order. Ms Heath indicated that the allegation may have related to an allegation of Ms CK that RPG made threats to his former wife. However, the Agency accepted that consideration of Ms CK’s material did not reveal any evidence of threats. As such, the Tribunal gives no weight to this allegation.
  2. [83]
    The reasons refer to RPG being charged with a former assault on RS, resulting in her sustaining injuries and being hospitalised. The Agency confirmed at the hearing that there was no evidence to support this position.
  3. [84]
    The reasons refer to the young age of the children who witnessed the incident, to their vulnerability to harm, and to their reliance on RPG.
  4. [85]
    In respect of the factors under section 226 of the Act, the Agency’s reasons outline RPG’s only conviction for driving under the influence of alcohol (an offence other than a serious offence) in February 1983. The Agency identified that RPG’s conviction was not child related, and that his offending did not appear directed towards children. Further, the Agency acknowledged that there is no charge or conviction for assault.
  5. [86]
    While section 226(2)(e) requires me to have regard to “anything else relating to the commission, or alleged commission of the offence that I reasonably consider to be relevant to the assessment of the person,” the only relevant offence is the 1983 drink driving offence. RPG was not charged with assault following the incident in February 2012. The Police records show that they considered the defence of self-defence/provocation to be applicable to the incident.
  6. [87]
    The Agency relied on Departmental information as being directly relevant to RPG’s eligibility to engage in activities regulated by the Act. This includes RPG exposing the children to the incident involving RPG and RS, thereby possibly causing the children emotional harm. The Agency refers to the aggravating feature of RPG being aware the incident was particularly violent given his former wife was allegedly holding a knife. The reasons referred to RPG’s other options of removing himself and the children from the vehicle.
  7. [88]
    The Agency provided written submissions following the hearing where the Agency referred to the decision of Commissioner for Children and Young People and Child Guardian v Grose.[6] In that decision the Appeal Tribunal accepted that there will be considerations not specified in Section 226 which must be addressed to ensure the best interests of children are protected when determining whether there is an exceptional case justifying a negative notice, and that failure to address those considerations could amount to an error of law.
  8. [89]
    The Agency submitted that RPG’s one offence of driving with a blood alcohol level of .06% does not appear to be directly relevant to his interactions with children.
  9. [90]
    The Agency submitted in respect of RPG’s child safety information, that there is one substantiated incident which was considered to be of emotional harm or to carry a risk of such harm and / or physical harm, being the incident which occurred on 5 February 2012 in the presence of three of the five foster children of RPG and RS at that time.
  10. [91]
    The submissions refer to the comments made by the children to the Department, including their reference to RPG’s behaviour on other occasions.
  11. [92]
    The submissions refer to RS’s statement to the Department as to RPG’s mental health issues, including his chronic depression and the emotional impact of his illness on the children. It was acknowledged that RPG has never been aggressive or abusive to the children.
  12. [93]
    The submissions again refer to the Agency being in receipt of complaint information as to RPG’s threats against RS’s life in July 2012, and to Police involvement at that time. No evidence of this Police involvement was provided to the Tribunal.
  13. [94]
    The Agency submitted that RPG’s protective factors included his minor and only offence for drink driving which occurred in 1983, RPG’s compliance with his ongoing treatment by Dr Kirkup for his depression, his previous service with the Army Reserve, and as a volunteer staff member of the Monto Cadet Unit.
  14. [95]
    The Agency submitted that RPG’s risk factors included him engaging in acts of domestic violence in the presence of his foster children at the time. The Agency referred to RPG’s mental health history, his impulse control, and his suitability to interact unsupervised with children given his mental health issues and his partial response to medication.
  15. [96]
    It referred to the potential link between alleged verbal abuse of RS preceding the incident, the impact on the children, and the risk of future incidents of domestic violence.
  16. [97]
    The Agency submitted that RPG minimised this level of force used against RS at the time of the incident, and that he does not justify his level of force to remove the knife by pulling RS out of the vehicle.
  17. [98]
    The Agency submitted that the evidence provided by RPG’s witnesses including that of Dr Kirkup, is unsupported by independent witnesses.
  18. [99]
    The Agency submitted that the decision of the Agency not to grant RPG a blue card, should be confirmed.

RPG’s Final Submissions

  1. [100]
    RPG provided written submissions following the hearing. He submitted that the current practice is for traffic offences to be recorded as traffic history, rather than criminal history. He submits that for an offence to be an exceptional case, there must be a nexus between the conviction or charge and the reasons giving rise to the consideration that the offence is exceptional. The Tribunal notes the Agency’s submissions provide on the basis of RPG’s Police information, that the statutory presumption is that a positive notice should be issued to RPG.
  2. [101]
    In respect of the Agency’s reference to threats against RS’s life in July 2012, RPG submits that had he engaged in any acts of domestic violence after the temporary DVO issued, there would have been Police action in respect of RPG’s breach of the DVO. No such evidence was provided to the Tribunal.
  3. [102]
    In response to the Agency’s submissions regarding his mental health, RPG submits that the Agency was aware of issues regarding his mental health and that there was no evidence against that given by Dr Kirkup, which would cause the Tribunal to give less weight to Dr Kirkup’s evidence.
  4. [103]
    RPG submits that the Agency has almost exclusively relied on hearsay evidence, which should not be given undue weight. He refers to the hearsay evidence of RS in respect of the incident.  RPG referred to inconsistencies in Officer Browning’s evidence, in respect of which he could not be questioned. This included his reference to past instances of psychological domestic violence against RS.
  5. [104]
    RPG submits that there are a number of inconsistencies in his evidence and the evidence of Officer Browning and the Department. These were set out in a four page annexure to his submissions. These inconsistencies included the identification of who removed the keys from the vehicle, and the identification of the tomato knife by RPG and RS and Officer Browning’s minimisation of the knife as a paring knife. He referred to inconsistencies in how RS held the knife, and to the lack of evidence that RPG applied his knee to RS’s throat or was asphyxiating or strangling her, against RS’s own evidence that RPG held his knee across the right side of her neck. RPG referred to the failure to document soiled clothing consistent with RS’s statement that she awoke in a pile of cow manure.
  6. [105]
    RPG submitted that Officer Browning had a duty to investigate the incident before applying for a DVO, by obtaining evidence from both RPG and RS. He referred to the affidavits of Mr L and Mrs L, which refute statements made by Officer Browning.
  7. [106]
    RPG submits that the evidence of the Department was biased in favour of RS who remains an approved carer despite her actions in taking up a knife. He refers to the absence of any record of interview with the children. RPG referred to RS’s wilful act of aggression in taking up the knife rather than distancing herself from the vehicle when she stated she was in fear of her safety, against his act of sitting in the vehicle to avoid being abandoned.
  8. [107]
    RPG while acknowledging the negative impact on the children by them witnessing violence, submits that the Agency failed to address the consequences to him had he not acted in self-defence. He submitted that it was not safe for him to retreat out of the vehicle. He referred to the absence of any mobile phone service to enable him to telephone the Police.
  9. [108]
    RPG referred to his clear insight into the effect of witnessing harm on the children, and to his expression of sincere regret as to the impact of his actions on the children and the disruption to their lives in a broader sense. He regrets the unintentional but foreseeable harm to RS to the extent that it was not his intention to cause her harm.
  10. [109]
    RPG submitted that he contested RS’s DVO due to the limitations that would have been imposed on him by making such an order. He referred to RS’s inability to give evidence due to an ear infection affecting her ability to hear at the DVO hearing, and to the undertakings resulting. RPG submitted that he did not bring his DVO sooner, due to his strong sense of duty and commitment to the children. He referred to the reluctance and difficulty experienced by victims of domestic violence as being well documented. He referred to the evidence of Mr and Mrs L supporting RS’s manner of being domineering, demanding and unsupportive of him. He referred to his behaviour in withdrawing from the children as he was being actively excluded from the family.
  11. [110]
    RPG submitted that his protective factors include his treatment compliance, his obsessive nature, and the extent to which it binds him not to harm others. He referred to the evidence of Mr H, Mr L and Mrs L as to his positive interactions with children. He noted that Dr Kirkup fully supported him working with children.
  12. [111]
    RPG submits that this is not an exceptional case such that a positive notice should not be issued. He submits that the Tribunal should set aside the Agency’s decision and direct the Agency to issue a positive notice (blue card).
  13. [112]
    RPG submitted that a non publication order should be made in respect of the identification of RPG or RS, and that the Tribunal should make recommendations in regard to the investigative processes and decision making process and procedures of the Agency, Child Safety Services (the Department) and the Queensland Police Service.

RPG’s Protective Factors

  1. [113]
    RPG acknowledges the negative impact on the children following the incident. He submitted that the likely alternative of his death or severe injury far outweighed the consequences for him and the children. RPG gave evidence that he was ‘very aware’ of issues of domestic violence concerning children. He considered that someone taking up a knife to settle an argument would have negative consequences on the children.
  2. [114]
    Dr Kirkup’s evidence confirmed that RPG has insight into the impact of the incident on the children. He stated that RPG’s obsessive nature resulted in him initially being caught up on the issue of him being trapped in the vehicle. His normal and immediate instinct was to protect himself and RPG felt he had no alternative. After RPG processed the events, he understood how distressing it must have been for the children.
  3. [115]
    RPG has expressed remorse for his actions. In his submission dated 30 May 2014, RPG stated, ‘I deeply regret that the children witnessed these events.’ RPG has not been involved in any acts of domestic violence since the incident, despite being in another relationship.
  4. [116]
    RPG is continuing to engage with his Psychiatrist and social worker. In his evidence Dr Kirkup confirmed that RPG’s engagement with a counsellor, is an ongoing protective factor. RPG is able to identify strategies to deal with stressors in his life.
  5. [117]
    RPG has no issue complying with his undertaking to be of good behaviour towards RS, with whom he has no contact.
  6. [118]
    The incident on 5 February 2012 giving rise to the Agency’s decision, was a one off situation with the children being present. Given RPG and RS’s divorce and lack of contact subsequently, there is no suggestion of any reoccurrence of this kind of incident, despite RPG’s new relationship.
  7. [119]
    RPG’s referees and his psychiatrist who has treated him for over fifteen years, support a positive notice being issued. If RPG is issued with a blue card, he will seek voluntary work with cadets. Mr H supported RPG’s work with cadets and his application for a blue card.
  8. [120]
    RPG has no charge or conviction in any way related to children and young people.
  9. [121]
    In his evidence Dr Kirkup stated that RPG’s protective factors include his own obsessional nature, as he feels bound by rules and social norms, which provide that children are not to be harmed or mistreated. Dr Kirkup considered RPG’s medication was a protective factor. He is compliant with his medication regime. Dr Kirkup was confident that RPG was being honest with him and involved in any discussion about medication changes.
  10. [122]
    Dr Kirkup indicated that RPG’s current relationship is a protective factor, as it does not involve the same degree of conflict as his relationship with RS. RPG is comfortable in that relationship and is not concerned by it.

Conclusions

  1. [123]
    The versions of RPG and RS as to the incident on 5 February 2012 vary, as does the corroborating evidence. It is clear that following the incident, RS was injured.
  2. [124]
    While RPG’s personality is such that he has a strong moral sense of “right and wrong”, RPG provided evidence of his regret and concern that the incident occurred with the children being present.
  3. [125]
    RPG has continued to engage with his Psychiatrist and social worker and is able to identify strategies he undertakes when he is placed in a stressful situation, to the extent that there have been no subsequent incidents of concern.
  4. [126]
    In his evidence, Dr Kirkup stated that RPG had no current risk factors. Dr Kirkup felt that on the day of the incident, RPG’s first preference was to walk away. However the circumstances of RS threatening RPG with a ‘butter knife’ prevented this, and RPG felt he had to defend himself.
  5. [127]
    The Agency’s reasons refer to the children witnessing RPG attempting to disarm his wife. The evidence is uncertain as to where the older two children were located at the time of the incident. While the Agency’s position is that there is no Police information as to why RPG was not charged with an offence and while the Agency refers to RPG’s submission in this regard, the Police information provided to the Tribunal and available to the Agency clearly indicates ‘The AOBH (assault occasioning bodily harm) is to be unfounded as assault as a result of self defence or provocation.’
  6. [128]
    The evidence of the Police is that RPG’s actions in disarming RS, was an act of self-defence. RPG did not bring the knife to the incident. There is no independent evidence to support the Agency’s position that there were alternative courses available to RPG.
  7. [129]
    The Agency’s reasons indicate that the children may have been at risk of physical harm due to threats allegedly made by RPG. Apart from the incident on 5 February 2012, there is no evidence to support the reference to a history of physical violence. RS’s DVO refers to a history of verbal abuse and derogatory language and states, ‘no previous incidents of physical abuse – only verbal.’
  8. [130]
    The Tribunal accepts that the children who are vulnerable, were at risk of emotional harm as a result of witnessing the incident on 5 February 2012. This incident occurred approximately 3.5 years ago. It was the only incident disclosed. There have been no subsequent incidents of any nature.
  9. [131]
    The Agency’s reasons refer to RS advising that RPG’s father informed her that she should be worried, as RPG would make sure she does not survive if he gets access to her again. No reference was made to this allegation at the hearing, and no evidence was provided to the Tribunal to substantiate this allegation.
  10. [132]
    The Agency refers to the complaint in the context of difficulties during the settlement of property issues following an “acrimonious breakdown” of the parties’ relationship. The evidence is that at the time of the incident, RPG and RS were married. The separation occurred after the incident.
  11. [133]
    While the Agency refers to RPG’s failure to acknowledge his behaviour as anything more than self-defence, that defence has been made out. RPG has acknowledged his concerns regarding the children witnessing the incident. He has expressed remorse and has insight into the effect on the children of them witnessing the incident, when he was acting in self-defence.
  12. [134]
    The Agency’s submissions refer to RS’s fear at the time. RS was not called to give evidence to enable clarification of why she removed a knife from the back of the vehicle before proceeding to get into the vehicle where RPG was seated, when she held fears for her own safety.
  13. [135]
    The Tribunal notes that Officer Browning’s reference to injuries observed by him, were not substantiated by any medical or photographic evidence. While he refers to being aware of past instances of psychological domestic violence perpetrated by RPG towards RS, no evidence was provided to support his position.
  14. [136]
    While the Agency submits that there is nothing to suggest that Officer Browning’s affidavit is not truthful, Officer Browning was not available to give evidence at the hearing. There are inconsistencies in his statement and the statements of others. The Tribunal notes that Officer Browning originally omitted to make any reference to RS being in possession of a knife at the time of the incident. While the Agency refers to RS ‘allegedly’ holding a knife, RS’s own evidence is that she removed a tomato knife from a picnic basket at the rear of the vehicle, before getting into the vehicle where RPG was seated, while being fearful of him. RS’s evidence contradicts the evidence of Officer Browning, who referred to RS holding a knife beside her leg. The Tribunal finds on the evidence, that the incident was escalated by RS’s actions in producing a tomato knife. RS’s evidence contradicts Officer Browning’s reference to the knife as a paring knife. Officer Browning referred to that knife’s blade being approximately six inches in length. The evidence as to how the knife was used is conflicting. 
  15. [137]
    While the Agency refers to RS’s loss of consciousness, RPG disputes this. The Agency again relies on Officer Browning’s previous dealings with RPG, of which there is no evidence. While the Agency refers to RPG’s failure to identify examples of his positive interactions with children, Mr H provided this evidence in respect of RPG’s interaction with cadets.
  16. [138]
    The Agency’s submission refers to RPG contesting the DVO. RPG and RS brought DVO applications against each other. While the submission refers to RPG’s undertaking given to be of good behaviour towards RS, it omits to refer to RS making a similar undertaking in respect of RPG.
  17. [139]
    As Officer Browning was unavailable to give evidence at the hearing, the Tribunal is only able to place limited weight on his evidence, which is based on hearsay evidence of RS, with the exception of RS’s injuries observed by him. No photographic evidence of these injuries was produced. The evidence in Officer Browning’s affidavit contradicts the DVO application, which makes no reference to the bruising to RS’s chest, or to the lump on her forehead.
  18. [140]
    RPG did not dispute that there would have been bruising and scratches. He disputed the reference to sore ribs and concussion, in the absence of medical evidence. No medical evidence was provided to support the reference to concussion, rib fractures, or internal injuries, despite RS’s attendance at the Monto Medical Centre.
  19. [141]
    Officer Browning’s affidavit refers to alleged comments made by Mr L and Mrs L, which they have denied.
  20. [142]
    The Tribunal has no independent evidence of the alleged threats of harm carried out by RS against RPG, or evidence of her mental health status.
  21. [143]
    The Agency relies in its reasons on a previous assault which resulted in RS being hospitalised, when the Agency confirmed at the hearing that no such incident or hospitalisation occurred.
  22. [144]
    RPG’s charge of driving under the influence of alcohol occurred over 32 years ago, and did not involve children.
  23. [145]
    The Agency’s statement that RPG and RS were substantiated for breaches of standards is incorrect, as the evidence supports a substantiation of a matter of concern against RPG only. There was only one notification of concern which was made out, being the notification relating to the incident. RPG’s evidence at the hearing suggests that he acted in an appropriate manner by removing himself and sitting in the vehicle, after the argument with RS.
  24. [146]
    The children present at the incident who were interviewed, were aged 6 and 7 at the time. They were interviewed post separation when they were living with RS. One of the older children (aged 16.5 years) was not present at the incident. However, that child gave evidence of the incident. That evidence could only have been obtained from the younger children’s version of events, and is not direct evidence. There is reference in that documentation to one of the children involved in the incident and the older child aged 16 stating ‘Pop threw Mum out of the car, Mum came back with a knife’. That evidence contradicts the direct evidence of RPG and RS. RPG considered the children were suggestible and in fear of being removed from RS. The interview with two of the children aged 6 and 7 on 14 February 2012 with Departmental officers, referred to one child’s statement ‘Pop nearly killed Mum’, and another child’s statement ‘She heard Pop yelling at Mum’. By contrast, an earlier statement by one of the children in that interview indicated, ‘a yell is a bit louder voice.’ The evidence of one of the children that ‘she saw Mum get the knife off Pop’, and ‘she saw Pop get the knife off Mum’ contradicts the evidence of RPG and RS. One of the children referred to ‘Pop punching Mum in the face’ when there is no such allegation.
  25. [147]
    Due to the children’s ages and the fact that one of the children who gave evidence was not present at the time of the incident, the Tribunal gives their evidence minimal weight.
  26. [148]
    While the Agency submitted that RPG’s actions at the time of the incident were disproportionate to the situation, it made no reference to the Police investigating the incident and as a result, bringing no charges against RPG on the basis of a defence of self-defence.
  27. [149]
    The Agency’s reasons make no reference to RPG’s DVO against RS. The Tribunal does not find any basis for the Agency’s submission that RPG appeared to minimise his reasons for entering into the undertaking, when it was given after it became apparent that the hearing was to be adjourned. The Tribunal notes that the Agency made no reference to RS entering into a similar undertaking. The Tribunal can draw no inferences from the manner in which the undertakings resulted, other than to note that RPG and RS gave similar undertakings.
  28. [150]
    The Tribunal is satisfied from the evidence and in particular, the evidence of Dr Kirkup, that the protective factors outweigh the risk factors in this case. The Tribunal accepts the evidence of Dr Kirkup in the absence of any medical evidence to the contrary. Despite the Agency’s concerns as to RPG’s mental health history and impulse control, Dr Kirkup considers that there is no impediment to RPG being granted a blue card.
  29. [151]
    While the Agency referred to RPG’s mental health and impulse control issues going directly to the risk of future incidents of domestic violence, Dr Kirkup considered that the Department’s reference to RPG withdrawing from the children, not speaking to them and being moody, stemmed from RPG’s depression and increasingly toxic relationship RS. RPG is no longer in a relationship with RS. He is established in a new relationship in respect of which there have been no allegations of violence. He has had no contact with his former foster children and there is no evidence that RPG has ever been violent to children.
  30. [152]
    The transferability of a blue card means that if successful with his application, while RPG has not indicated a desire to be a foster carer, he would have unfettered and unsupervised time with all children, not only cadets with whom he wishes to volunteer. The Tribunal takes into account as a significant consideration, the transferability of the positive notice across any area of child related employment.
  31. [153]
    The Tribunal is not satisfied that RPG’s current risk factors raise concerns about his ability to make appropriate behavioural choices in the best interests of children and young people.
  32. [154]
    The evidence of Dr Kirkup is that RPG’s protective factors outweigh his risk factors in terms of his future involvement with children, and that Dr Kirkup’s assessment of RPG’s risk to children is that he is a low risk. This is due to RPG’s strong sense of right and wrong and his view of the way children should be treated, and his good moral standing. While the Agency submits that Dr Kirkup’s evidence should be tempered in the absence of evidence of RPG’s appropriateness to interact with children, Dr Kirkup’s evidence was that he had read the Agency’s statement of reasons, that he understood that by granting a blue card it enabled the holder to deal with children of all ages, and was unconditional. Despite this, Dr Kirkup had no concerns regarding RPG holding a blue card. The Tribunal finds that Dr Kirkup gave independent evidence as a treating Psychiatrist, which it accepts.
  33. [155]
    For these reasons, the Tribunal finds that RPG’s positive notice must be issued, as this is not an exceptional case in which it would not be in the best interests of children for him to be granted a blue card. The Tribunal finds on the balance of probabilities, that the statutory presumption prescribed by Section 221 of the Act that a positive notice should issue, has not been rebutted. The Tribunal makes this finding given the consideration that the safety of children is paramount in the Tribunal’s determination of whether an exceptional case exists.
  34. [156]
    The Tribunal accepts the submissions that it is appropriate to make an order prohibiting the publication of RPG and RS, all the children identified in the written material, and all other identifying particulars, which could reasonably lead to the identification of the children.
  35. [157]
    The Tribunal does not consider it necessary to make any recommendations as sought by RPG, further to the findings made in this decision.

Decision

  1. [158]
    The Tribunal sets aside the decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice, and a positive notice is to be issued to RPG.
  2. [159]
    The Tribunal prohibits the publication of the name of the Applicant, his former wife, any children identified, and all identifying particulars of those children and other persons, which may lead to the identification of the children.

Footnotes

[1]Sections 221(1) and 221(2) Working with Children (Risk Management and Screening) Act 2000 (Qld).

[2]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[3]Section 5 Working with Children (Risk Management and Screening) Act 2000.

[4]Ibid s 226.

[5]Kent v Wilson [2000] VSC 98.

[6]Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348.

Close

Editorial Notes

  • Published Case Name:

    RPG v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    RPG v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2015] QCAT 485

  • Court:

    QCAT

  • Judge(s):

    Member Feil

  • Date:

    16 Nov 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348
2 citations
Jump To
Cite 1 - [2013] QCATA 348
Cite 2 - [2013] QCATA 348
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98

Cases Citing

Case NameFull CitationFrequency
RPG v Public Safety Business Agency [2016] QCAT 3312 citations
The Agile Wallaby Project Inc v Department of Environment and Science [2020] QCAT 1212 citations
1

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