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KBD v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 20

KBD v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 20

CITATION:

KBD v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 20

PARTIES:

KBD

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML 144-15

MATTER TYPE:

Children's matters

HEARING DATE:

19 November 2015

HEARD AT:

Ipswich

DECISION OF:

Member Feil

DELIVERED ON:

18 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice to the Applicant is confirmed.
  2. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the name of the Applicant, any children identified, and any information that would identify the Applicant or lead to the identification of the children.

CATCHWORDS:

CHILDREN'S MATTER – BLUE CARD – where applicant’s positive notice was cancelled - where Applicant recently charged with an offence other than a serious offence in respect of the discipline of his child - 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)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Kent v Wilson [2000] VSC 98

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

KBD appeared for himself

RESPONDENT:

Ms Louisa Keown 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 issued KBD with a blue card on 29 January 2014. From 1 July 2014, the Working with Children (Risk Management and Screening) Act 2000 (“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”).
  2. [2]
    KBD was convicted on 20 February 2015 of one charge of assault occasioning bodily harm whilst armed / in company on 24 January 2015. He was fined $750.00 and no conviction was recorded. He has no other charges or convictions. Following notifications by the Police, KBD’s eligibility for a blue card was reassessed and on 27 May 2015, the Agency cancelled KBD’s blue card. The Agency’s decision to issue a negative notice relates to an undisputed incident on 24 January 2015, when KBD folded his belt and struck his second of three children aged 12 years (“the child”), five to six times with the belt, causing bruising to the child’s knee and bruising and swelling to the child’s left inner arm (“the incident”). The incident followed KBD’s request of the child on two occasions to set up KBD’s laptop, which the child refused.
  3. [3]
    As KBD has been charged with 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 KBD.[1]
  4. [4]
    The screening of persons for child related work is administered under the principle set out in s 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 consideration is the one to which all others yield.[2] The Tribunal must exercise its discretion after considering the circumstances of KBD’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]
  5. [5]
    Section 226[4] sets out the factors which the Tribunal must consider in determining if there is an exceptional case for KBD. The evidence considered takes into account this section. 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]

KBD’s Life Story and Submissions

  1. [6]
    In his life story, KBD referred to being raised on a dairy farm with his parents who were committed Christians. He was disciplined in a way seen as appropriate in those days, including being “flogged” with a peach stick and receiving the cane in High School. KBD refers to being a quiet and shy person, to him struggling with bad thoughts as a teenager, and to him becoming a Christian at age 18.
  2. [7]
    KBD held a number of jobs and helped with a youth group, attended Bible College for five years, and assisted young people in student ministries. He helped with a children’s club for seven years. He did not react badly when a young boy spat on him. KBD also led a youth group with about 25 members, without any “mishaps with anger”. KBD was a bakery delivery driver for seven years. He started a youth group where he was gentle with the children, and the children liked him very much. After the bakery closed, he worked on a turf farm and then at a plant nursery for four years.
  3. [8]
    KBD left the plant nursery and studied a Degree in Theology while continuing to see Psychologist Dr Esben Strodl regarding his struggles with anxiety, doubt, faith, work situations and thoughts which continue, but are less of an issue. He worked as a church Pastor for three years and part time as a retirement village Chaplain and at a Correctional Centre one day per week, before being made redundant in both positions in 2014. This caused KBD some anger due to financial pressures, marital stress, and his reduced self-esteem.
  4. [9]
    At this time KBD’s wife began self-harming and developed serious depression. KBD referred to his wife putting him down about his work situation and not providing properly for the family. He referred to his Psychologist identifying lack of respect from his family and frustrations as reasons why anger builds up in him. KBD has learned early warning signs before situations blow out of control, which occurred when he “over disciplined” the child in anger.
  5. [10]
    KBD resigned as Church Pastor in 2008 when hurt after a comment was made about his wife having pets in church, which he later found out was a lie made by his children. KBD referred to this being another example of his children’s lack of respect for him, their father. KBD never had problems teaching in Sunday School, and was never angry with children.
  6. [11]
    In respect of the incident, KBD stated that after telling the child twice to put KBD’s laptop on his desk, turning the TV off to get the child’s attention, and being given the “rude finger” by the child, he hit the child five or six times, not with the buckle end of the belt. KBD stated that he should not have done this as it caused “unhealthy fear” in his family. KBD apologised to his wife and his three children and was deeply sorry. KBD referred to needing to work at finding different ways to discipline and manage his anger, such as taking away the Wii game and the Internet.
  7. [12]
    KBD referred to addressing his offending behaviour by attending counselling with Dr Strodl. He has learnt to manage his anger and look at the root causes of his anger. KBD has attended an eight day course at Elijah House to address problems and learn solutions. KBD referred to keeping children in youth groups safe by giving them boundaries and rules, as a high priority. He has always emphasised safety to his children regarding road crossing, using electricity, and when swimming.
  8. [13]
    KBD’s depression has benefited from exercise and the medication change from Zoloft to Cymbalta 60 mg. He is currently studying a Diploma in Counselling. He has a Certificate IV in Pastoral Care, an Advanced Certificate in Youth Work, and has completed other Ministry courses. KBD would like to continue to work in this caring field. The loss of his Blue Card has meant that KBD had to resign from teaching Sunday School, as a Pastoral Care Associate, and from the Church Leadership Team, reducing his income by $300.00 per fortnight. He is separated from his wife and is obtaining legal advice regarding spending time with the children and property settlement. He is living at the home of a church Elder. In his written submissions KBD stated, ‘I have done this wrong thing and I am truly sorry for this. This is the first time I have been to court, I am addressing my offending behaviour and anger and I will never discipline in this manner ever again.’

KBD’s evidence

  1. [14]
    KBD has attended sessions with his Psychologist, Dr Strodl. He referred to Dr Strodl’s belief that because KBD was devalued, disrespected, not listened to, and disobeyed by his wife and children over a long period, his frustrations and anger built up and took its toll at the time of the incident.
  2. [15]
    KBD referred to attending a programme at Elijah House assisting with ‘anger, forgiveness and blame issues’. He believed that he disciplined the child wrongly, and that he is addressing his triggers and learning how to manager anger, which has not occurred since the incident. KBD referred to the positive change after his Doctor changed his medication.
  3. [16]
    KBD referred to being physically disciplined and caned as a young child. As such, disciplining in other ways has been a learning process such as taking away privileges for bad behaviour, and rewarding good behaviour. He referred to doing this with the child at the time of the incident, ‘but he still would not listen’. He referred to the child ‘giving him the finger’ and pouring some liquid over him, as total disrespect.
  4. [17]
    KBD noted that no conviction was recorded in respect of the charge. He referred to his good standing in the church and community in giving care and concern to children and young people and teaching them through children’s ministry of 11 years and youth work of nine years, without issue.
  5. [18]
    KBD referred to the financial impact on him and his family as a result of him not being able to work with children following his resignation as Pastoral Care Associate, and his difficulty in finding work at 51 years of age. He referred to his current studies in a Diploma in Counselling, and to him learning in this course about new ways to discipline children. He referred to future difficulty in finding employment without a blue card after he completes this course.
  6. [19]
    In his oral submissions to the Agency, KBD stated on 23 February 2015 that his bail conditions had been removed, and that he could now have contact with the child, in the absence of Police. He referred to the Domestic Violence Order (DVO), which was made for two years as not prohibiting him from seeing the child. In respect of the charge, KBD stated that he ‘went about it the wrong way, was stressed at the time, and was getting help with counselling’.
  7. [20]
    In his oral evidence KBD again referred to the child’s disobedience and to the children’s disobedience ‘a fair bit over the years’. He referred to his wife’s disrespect, and to Dr Strodl believing that this was the reason for his anger building up over time. He referred to his wife’s flashbacks at the time of the incident, as her mother abused her as a child. KBD referred to his wife’s exaggerations, to her being controlling, and to her throwing a box of dolls and a plate at him, prior to the incident.
  8. [21]
    KBD acknowledged that the manner in which he was disciplined as a child, was now different. He acknowledged that the incident should not have happened, that his actions were  “over the top,” and against the law. KBD referred to putting unhealthy fear into the child and his family, which is an abuse for which he apologised. KBD referred to apologising to the child, who recently stayed with him. He stated that he should not have hit the child with the belt, that it was not the right way to discipline the child, and that he recognised it was not the right thing to do.
  9. [22]
    With respect to the Department of Communities, Child Safety and Disability Services (“the Department”), previous involvement regarding his oldest child in January 2014, KBD stated that he was not present at that time. He acknowledged previously excessively disciplining the children, and to occasions when sudden anger had arisen and he had engaged in similar discipline, but only if the children had “really disobeyed” him. He referred to these occasions as being rare. He recalled one occasion in ten years when he had engaged in excessive discipline with the eldest child who “got a flogging”. He may have smacked a child with a spoon, which was the way he was disciplined when he was young.
  10. [23]
    KBD stated that while a lot of people do that, it doesn’t make it right, and he has learned other ways of disciplining. He referred to this as a learning process, and to taking privileges away as alternate means of disciplining, and giving rewards and privileges if the children do the right thing. KBD acknowledged that the impact of excessive discipline on the children could be emotionally and psychologically damaging, and impact on how they view people and the world. He acknowledged that while the incident occurred in the home, the home should be a safe place, and that it can also be the most trying place.
  11. [24]
    He referred to not being respected and lied to over the years, and to his wife seeming to poison the minds of the children against him, as she is controlling. KBD referred to feeling devalued and upset when he was made redundant, and when there had been financial strain. He referred to his wife not supporting him in unpaid ministry work. KBD acknowledged that domestic violence had occurred during his marriage, and to it ceasing about ten years ago. He referred to this violence occurring occasionally, due to his wife devaluing him. He referred to his wife hitting him, to her verbal and emotional abuse, and to her putting him down as not being a good provider and being unable to preach. KBD disagreed with his wife’s view that domestic violence has occurred more recently. He referred to his wife getting in a mood and getting him in trouble by her exaggeration such as on the day of the incident when she made it sound worse than it was.
  12. [25]
    KBD referred to an incident that occurred approximately three months ago, when he tried to attend the house to retrieve his belongings and his wife called the Police. He denied any physical violence at that time. KBD referred to rarely seeing the children, as he is not made welcome.
  13. [26]
    KBD acknowledged his anger management issues from his teenage years, and to him working on strategies to assist him such as breathing, being more aware of triggers including the build up of daily frustrations, trying to think positively, praying, and leaving a frustrating situation. KBD stated that he is continuing to learn and is undertaking studies in a Counselling Course. He acknowledged that he has more to learn.
  14. [27]
    KBD stated that he first saw Dr Strodl in 2005, again in 2007, and seven times from February to June 2015. From 2007 to 2015 he saw Reverend Noller the International Director of Lifeline, due to disturbing thoughts regarding the unforgivable sin of blasphemy. He referred to his continuing struggles with doubt and faith, and to him now managing well.
  15. [28]
    KBD stated that he was initially diagnosed with anxiety and depression around 2006 due to his relationship with his wife not being close, and due to his wife’s depression. KBD and his wife have attended church based counselling. He manages his anger through individual sessions with Dr Strodl, and by talking to friends. He saw Dr Strodl a couple of weeks ago. Earlier in the year he attended an eight day course at Elijah House Christian Ministry where he engaged in group discussions regarding getting to the root of problems. KBD has now seen another GP on two occasions. His medication change has assisted him, as has exercise.
  16. [29]
    KBD plans to find rental accommodation. He indicated that the oldest child might live with him while he studies Year 12 in 2016. He referred to selling the family home, as his wife wants a divorce.
  17. [30]
    KBD finds it hard not to blame others. He can identify early warning signs and go outside to a safe place or to his room if for example, he has a disagreement with his current housemate.
  18. [31]
    While KBD referred to “never having lost his cool” with other children including those with challenging behaviours, he referred to his anger management at home being harder as he felt devalued, which should not occur in his own home. KBD stated that his actions at the time of the incident resulted from a build up of frustrations within the family.
  19. [32]
    He stated that his relationship with the child is now “fine”, and his relationship with his daughter is being re established. He referred to the children obeying teachers, but not their parents, ‘like Mum and Dad are nothing’. He considered that parents should be a bigger influence on children, and that there should be more respect for parents. While KBD stated that he is still hurting from the children not respecting him in the past, the past doesn’t worry him, as he can’t change the past.
  20. [33]
    In respect of evidence from the Department, KBD could not recall hitting his daughter. He stated that she should not have swung on the clothesline, and that she needed to learn to respect equipment. He acknowledged that he “may have responded that way and that now he wouldn’t.” He stated the child the subject of the incident, bruises easily and has “soft tissue”. KBD reinforced the need for children to respect and obey their parents, especially the father, as biblically the father is the head of the home.
  21. [34]
    KBD acknowledged that he can always learn more and that on the day of the incident, he was trying to be a father but was “out of line”. He referred to his time of growth with the child, whose forgiveness he sought. KBD sought another chance to prove himself in working with children, and becoming a better parent.
  22. [35]
    KBD agreed with the Agency’s submission that in order to protect the identity of KBD, his three children and anything else that would lead to the identification of KBD, a non-publication order be made.

Referees

  1. [36]
    KBD advised the Tribunal that he did not call any referees to give oral evidence, as it felt awkward and would be too much for the referees. Ms Shereen Metry gave a reference dated 29 June 2011, which provides positive recognition of KBD’s work as campus chaplain. Mr David Raine in his document dated 4 April 2011, thanks KBD for his contribution to the Fernvale State School community during the floods. Mr Graham Peel’s reference dated 7 December 1992, commends KBD’s efforts in establishing a HRE course at Bli Bli State School. Mr Greg Muller’s reference of 11 June 2005 refers to KBD’s work in church and secular situations, and outlines the basis for his recommendation of KBD for any pastoral/chaplaincy position offered. As these references predate the incident, the Tribunal gives them minimal weight. KBD provided Certificates of Appreciation in respect of his work in the chaplaincy service of the Queensland Correctional system, and his contribution to Fernvale State School on Anzac Day 2010.

Ms Tammy Copley

  1. [37]
    Ms Copley has known KBD for approximately 25 years through church activities. She and KBD lost contact for a long time and reconnected two years ago. She is aware of “marital discord and parenting concerns”. Ms Copley has tried to support KBD and to a lesser degree his wife, in their struggles. Ms Copley certified that she attended Court with KBD on two occasions in relation to the subject charge. KBD explained that the “parenting concerns” related to him talking to Ms Copley regarding the oldest child’s anger. While Ms Copley recommended the PPP programme to KBD, he stated that he hasn’t had time to undertake this programme.

Mrs Ailsa Anderson

  1. [38]
    While Mrs Anderson referred to her knowledge of the offence, KBD was uncertain of the extent of her knowledge of the details of the charge. Mrs Anderson has known KBD for 13 years, initially when KBD was involved in the high school Youth Group. She refers to KBD being very caring towards young people, relating well to children, and never “losing his cool” even though some of the children displayed very challenging behaviours. She stated that the children liked him very much.

Mr Lester Schultze

  1. [39]
    KBD stated that as he is living with Mr Schultze who is responsible for Blue Cards within the church community, he is aware of the offence. Mr Schultze is a Church elder and has observed KBD with his wife and children at their home, at church services, and socially. KBD has always conducted himself appropriately. Mr Schultze has never observed any inappropriate contact or behaviour when KBD has been with children, young people and adults. He expressed no concerns and his desire was for KBD to hold a Blue Card.

Mr Dave Smith and Ms Joanne Smith

  1. [40]
    Mr and Ms Smith refer to their awareness of the charge and outcome, and to them spending time with KBD and his family at Sunday School, kids club, and socially. They describe KBD as a calm person who has real compassion with children. He would sit and listen to them.

Dr Esben Strodl – Psychologist

  1. [41]
    In his letter of 3 March 2015, Dr Strodl stated that in addition to this year’s consultations, he saw KBD for treatment of anxiety approximately ten years ago. The letter refers to Dr Strodl’s awareness of the charge, and of the outcome of that charge.
  2. [42]
    Dr Strodl’s letter dated 29 September 2015 refers to him meeting with KBD on seven occasions from February to June 2015 at which times he presented with symptoms of depression and reported challenges with anger. He referred to KBD being charged with assault for disciplining his son by hitting him six times with a belt. Dr Strodl stated that KBD’s depression and anger appears to arise from the long-standing relationship problems with his wife combined with difficulties finding suitable employment and developing a career. Dr Strodl indicated that KBD was actively involved in the counselling sessions and appeared to make good progress working on his symptoms of anger and depression. The sessions were put on hold due to Dr Strodl going on holidays and difficulties finding a common time to meet since KBD has commenced employment. Dr Strodl provided KBD with details of a colleague in full time private practice.
  3. [43]
    KBD stated that he enjoyed his new job and he rates his depression as being in the mild range. Dr Strodl believed that KBD is genuinely remorseful for his actions against his son and is genuine in his desire to engage in psychotherapy to help him learn better coping strategies with his anger and depression.

KBD’s Protective Factors

  1. [44]
    Dr Strodl considers that KBD is genuinely remorseful for his actions. He referred to KBD addressing his offending behaviour and anger. KBD has engaged in psychotherapy with Dr Strodl to address his offending behaviour, and has received treatment for his depression from his GP.
  2. [45]
    KBD has identified triggers which lead to his demonstration of anger, and has indicated a willingness to seek professional help over a number of years from a Psychologist and from his GP.

The Chief Executive Officer’s Position and the Risk Factors

  1. [46]
    The Agency’s reasons refer to the offence occurring in the presence of KBD’s wife, after KBD collected the child and asked the child to set up his laptop computer. The child who was lying on the couch, refused on two occasions, as he was tired. KBD then grabbed the child, struck the child at least five times with his folded belt, stating that he was punishing the child and giving the child discipline. KBD’s wife intervened in the struggle and separated KBD and the child. The child ran away and KBD interrupted his wife who was attempting to call the Police, resulting in the child calling the Police. KBD stated to the Police that he was only administering discipline to the child. When told by Police that the discipline was excessive, KBD quoted the Bible stating, “Spare the rod and spoil the child”. KBD stated that he was disciplined in this manner as a child.
  2. [47]
    The reasons refer to the letter from Dr Sharma GP of 27 January 2015 which provides that KBD had been a patient for five years and was being treated for depression, that he had seen counsellors and has actively engaged in counselling, that he is on anti depressant medication, that he had a ‘recent anger outburst at home and states he feels guilty about the whole incident’, and wishes to see someone about anger management.
  3. [48]
    The reasons refer to KBD’s conviction for assaults occasioning bodily harm whilst armed/ in company. KBD was fined $750.00, which the Agency considered was significant. The reasons refer to the recency of the offending behaviour in January 2015 as a concerning risk factor, and to the offence being committed against KBD’s twelve year old son, and to KBD’s wife intervening at which time the child hid. The child sustained bruising and swelling and later received medical attention.
  4. [49]
    The reasons referred to KBD’s behaviour as most likely causing the child physical and emotional harm, to the rights of children to be protected from such conduct, and to KBD’s actions being disproportionate to typical childhood behaviour. The Agency considered that KBD’s behaviour was adverse to him working with children when he would be expected to respond appropriately to situations of frustration or conflict likely to occur in a child related environment, and reflects adversely on his ability to present as a positive role model. It considered his behaviour as constituting a failure to protect the child’s welfare and safety. The reasons refer to KBD being in a position of authority and trust as the child’s father, to KBD’s duty to protect and prioritise his child’s physical and emotional well being, and to his breach of that duty. The reasons refer to KBD’s limited remorse and insight into the wrongfulness of his violent behaviour, and to his comments at the time suggesting that KBD considered his violence to be appropriate.
  5. [50]
    The reasons refer to KBD’s previous history with the Department, indicating that the 2015 offence was not an isolated incident. The Agency expressed concerns that the offence was committed despite previous intervention by the Department.
  6. [51]
    The reasons refer to a two year DVO being made on 27 January 2015, and to that Order naming KBD’s three children as aggrieved persons, indicating that the Court considered the children were in need of protection from KBD. The reasons also referred to KBD’s bail conditions, which initially prohibited KBD from having any contact with the child.
  7. [52]
    The Agency was concerned in relation to KBD’s statement that his behaviour caused “unhealthy fear” in his family, and that his two other children were frightened as a result of the offence. The reasons refer to KBD recognising the wrongfulness of his offending behaviour stating ‘I should not have done this to (the child)’ and that he ‘went about it the wrong way’. The Agency considered that this identified KBD’s struggle with anger management, for which he is currently receiving counselling.
  8. [53]
    The reasons refer to Dr Strodl having seen KBD twice this year for anger management and depression, and approximately ten years ago for the treatment of anxiety. The Agency was concerned that KBD’s mental health treatment was ongoing, and that he had not successfully addressed triggers or developed strategies in respect of his offending behaviour.
  9. [54]
    The Agency took into account the positive sentiments of KBD’s referees as to his good character and positive interactions with children and young people. The reasons refer to varying degrees of knowledge held by referees as to KBD’s offence, and to some references being written before the offence, resulting in limited weight being given to their statements. The Agency found that the positive sentiments of referees did not outweigh the risk factors identified, and cancelled KBD’s positive notice.

The Department’s evidence

  1. [55]
    Departmental officers did not give oral evidence at the hearing. Documents produced by the Department refer to a previous incident on 17 January 2014 when KBD’s eldest child who was 14 years old at the time, was violent, and assaulted KBD’s wife. The evidence referred to the other two children being frightened and afraid of that child.
  2. [56]
    The evidence given by the child (the subject of the incident) to the Department on 23 January 2014, was that ‘sometimes his Dad whacks him with his hand and that he feels a little sore and sometimes it has left a mark.’ This occurred when the child was about 9. He referred to KBD “whacking” his sister last night, to him being in a foul mood, and to KBD’s wife telling KBD to stop.
  3. [57]
    The evidence given by KBD’s daughter to the Department on 23 January 2014 referred to KBD sometimes smacking her with his hand, and to this last occurring when she was spinning on the clothesline when KBD “smacked her twice on the bum”.
  4. [58]
    KBD’s wife’s evidence to the Department was that she suffers from clinical depression and takes Zoloft, and to KBD having depression. She referred to KBD coming from the “olden days,” and to her not condoning the use of an implement to discipline, as she was physically abused as a child.
  5. [59]
    The Department’s records note ‘there is a significant risk of future emotional and physical harm to the subject children as a result of (KBD’s) use of inappropriate forms of discipline, and the use of excessive physical discipline placing the subject children at significant risk of physical harm or injury’. In respect of the incident, the Department refers to KBD’s discipline as ‘cruel and not age appropriate and had caused the child physical harm.’ The records refer to Police being of the opinion that KBD had shown no remorse for his actions, and that he insisted that ‘they (the children) must learn to obey their parents’. KBD showed little regard for committing such act in front of the entire family. The records referred to KBD’s wife and the children expressing to Police that they were extremely fearful of KBD and his propensity for violence.
  6. [60]
    One child stated to the Department on 5 May 2015, ‘Dad gets really angry’ and ‘Dad has been back to the hone since the incident, that he started out being nice and apologising, then started to be really mean again.’ His daughter did not want any contact with KBD. On 20 May 2015, one child referred to KBD’s past violence with the children and KBD’s wife.
  7. [61]
    The Department found that as KBD is no longer residing in the home, as he was demonstrating insight into his behaviour and accessing support through a Psychologist to address his anger, and on the basis of the DVO being in place, a substantiated outcome for the child was made out.
  8. [62]
    The Police Court Brief referred to KBD’s wife’s attempts to call the Police after the incident being interrupted by KBD, and to the child calling the Police. KBD advised Police that he was only administering discipline to the child. He quoted the Bible stating, ‘spare the rod and spoil the child’ (which KBD denies), and that KBD was disciplined like that as a child. The child subsequently sought medical treatment at a Medical Centre.

Conclusions

  1. [63]
    While KBD’s conviction was not recorded, he was charged with the offence and the Magistrates Court found KBD guilty of the offence. The Tribunal can take into account the charge for the purpose of the legislation. The offence which directly relates to KBD’s assault on his son, is an aggravating factor. The offence occurred at KBD’s home with other children present, where the children should feel safe. KBD did not demonstrate an appropriate way to deal with anger. The Tribunal finds that KBD’s actions in hitting his child on a number of occasions, was excessive. The Tribunal finds on the Department’s evidence, KBD’s admission of domestic violence and the current DVO, that this was not an isolated, “one off” incident.
  2. [64]
    KBD did not call any witnesses to enable their evidence to be tested. He provided no evidence from his GP as to the management of his mental health and anger issues, his early warning signs, or his protective factors. KBD did not call any health professionals to give oral evidence as to KBD’s suitability for child related employment, the extent of KBD’s insight into the impact of his behaviour on children, any risk factors or triggers which remain and which could contribute to a risk of similar behaviour, or any protective factors or preventative factors to reduce the repetition of such behaviour.
  3. [65]
    While the Tribunal accepts that KBD recognises his offending behaviour was wrong, he has not in the Tribunal’s view, developed sufficient insight and understanding as to his actions causing physical and emotional harm to the child. He refers to “over disciplining” the child and denies that his actions were violence, rather a form of disciplining the child as the father and head of the household. KBD is unable to transfer his calm approach to children with challenging behaviours in the community, to his own family situation.
  4. [66]
    Rather than recognising his role in the assault, KBD holds an entrenched view regarding the disciplining of children, and the children’s obligations to respect and obey their parents. This is supported by his many references to feeling devalued by his wife and children and his final submission to the Tribunal that there needs to be respect and obedience by the children especially to their father, as biblically, the father is the head of the home.
  5. [67]
    The Tribunal finds that despite professional support, KBD continues to struggle with his self worth, has feelings of being devalued, has deep rooted issues and anger management issues which started from his teenage years. The Tribunal is not satisfied that KBD’s triggers have been adequately addressed at this time. The Tribunal finds that KBD needs to continue with professional therapy to work on strategies to fully address his offending behaviour. KBD acknowledges that disciplining in other ways is a learning process, and that he continues to seek professional help in this regard. The Tribunal also takes into account the recency of the offence, and the fact that the victim of the offence was his son, who is vulnerable.
  6. [68]
    As the Tribunal is able to consider anything else relating to the commission of the offence, the Tribunal takes into account the current two year DVO naming KBD’s wife and the three children as aggrieved persons. From this evidence and the Department’s evidence, the Tribunal cannot accept that KBD’s act of violence was a one off incident. The Tribunal is therefore not satisfied that the protective factors outweigh the risk factors.
  7. [69]
    The transferability of a blue card means that as a blue card holder, KBD would have unfettered and unsupervised time with all children, not only in church related activities. The transferability of a blue card across any employment area is a significant consideration for the Tribunal.
  8. [70]
    While KBD refers to the financial burden to him in not being able to work with children, this is not a factor which the Tribunal can consider. The Tribunal’s role is to consider the best interests of children.
  9. [71]
    The Tribunal is satisfied that KBD’s current risk factors raise concerns about his ability to make appropriate behavioural choices in the best interests of children and young people. The Tribunal finds that KBD’s negative notice must be confirmed, as this is 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 s 221 of the Act that a positive notice should issue, has been rebutted. The Tribunal makes this finding given the consideration that the safety of children is paramount.
  10. [72]
    The Tribunal accepts the submissions that it is appropriate to make an order prohibiting the publication of all names, which could reasonably lead to the identification of the children.

Decision

  1. [73]
    The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice to the Applicant is confirmed.
  2. [74]
    Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the name of the Applicant, any children identified, and any information that would identify the Applicant or 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 (Qld).

[4] Ibid, Section 226.

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

Close

Editorial Notes

  • Published Case Name:

    KBD v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    KBD v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 20

  • Court:

    QCAT

  • Judge(s):

    Member Feil

  • Date:

    18 Jan 2016

Appeal Status

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

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