LP v Chief Executive Officer, Public Safety Business Agency
[2014] QCAT 590
•20 November 2014
| CITATION: | LP v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 590 |
| PARTIES: | LP (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML109-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 14 July 2014 and 1 September 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Goodman |
| DELIVERED ON: | 20 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review is dismissed. 2. The Respondent’s decision to issue a negative notice to the applicant is confirmed. 3. The Tribunal prohibits the publication of any information which identifies or could lead to the identification of a child, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | Childrens matters - where applicant assaulted a 3 month old baby and has a history of threatening behaviour –where applicant has undertaken counselling – where no recent criminal charges – whether this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. Working with Children (Risk Management and Screening) Act 2000 (Qld) |
APPEARANCES:
| APPLICANT: | LP appeared in person |
| RESPONDENT: | Louise Keown appeared for the respondent |
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REASONS FOR DECISION
LP is a 39 year old man living in Brisbane. He applied for a Blue Card so that he can work as a counsellor.
The Commission for Children and Young People and Child Guardian refused the application. The respondent now undertakes the previous role of the Commission, although the law remains the same in all material respects.
This matter is now before the Tribunal and I must consider whether LP should be issued with a Blue Card. Because LP has not been convicted of what is termed a “serious offence”, he must be issued with a Blue Card unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card.[1] Neither party bears the onus of proof, and I make my decision on the balance of probabilities.
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
In determining whether this is such an exceptional case, I have had regard to the evidence available to me, and the considerations contained in the legislation.[2]
[2]Ibid s 226.
LP provided the Tribunal with a great deal of detail regarding his upbringing, the difficulties he has experienced as a teenager and adult, his offending behaviour and the steps he has taken to overcome his past and ensure that he will not offend in the future. I have taken that evidence into account. It is not possible to recount all of the evidence in full and I have provided a summary in this written decision.
LP’s criminal history must be taken into account. It is recorded as follows:
a) 12/10/2000 – convicted of common assault (5 charges), assault occasioning bodily harm (2 charges), grievous bodily harm – all offences committed 20 July 1999
b) 20/07/2005 – convicted of dangerous conduct with a weapon – committed 6 January 2005, dangerous operation of a vehicle – committed 7 February 2005
c) 4/10/2006 – convicted breach of probation order- driving a vehicle with expired registration
d) 24/11/2009 – convicted of making a false declaration on 15 June 2004 – claiming that his then wife was driving a speeding car when it was him.
LP had an unstable and traumatic early life in a violent home (for example he witnessed his father attempting to rape his mother). He recalls hiding with his half sister when his father became violent, and was jealous of the affection his father showed towards pets;
As a child, he began to torture and kill animals during periods of extreme stress. This continued periodically into LP’s adulthood. LP described his behaviour as “disturbing and pathological”;
From about the age of 5 or 6 he began to pull the hair out from his body when highly stressed. This led to him being bullied at school and continued off and on until he was in his 20s;
He was sexually assaulted in his teens;
As a young adult was involved in a car accident where he drove the wrong way up a one-way street after an argument with his former girlfriend. Two cars were written off in the incident. LP says that at the time he was “unstable” and often fined for speeding in his car;
When he was about 20 years of age, he dated a girl whose brother did not like him. LP says that the brother tried to beat him up but instead was knocked out himself;
Having spent most of his life in New Zealand, he moved to Brisbane in 1996. He began to study nursing and when he was 23 he met CS through a Christian group they both attended. They quickly formed an intimate relationship and CS fell pregnant. Her family were furious and told him they didn’t want him around. LP refused to leave and agreed to their demands for a quick wedding;
The relationship with his parents-in law did not improve after the wedding and LP believed that they were intruding on his marriage. LP was stressed and unhappy and began to harm and kill small animals as a 24 year old man. He was referred to a counsellor who he later discovered was unqualified;
LP states that he felt broken, confused, tired, angry and upset after CS’s father told him that he wasn’t part of their family. It is in this context that he assaulted his baby son in 1999. The most serious of LP’s criminal charges relate to this incident.
In July 1999, over the course of approximately one to one and a half hours LP assaulted his 14 week old son by throwing him into his cot, grabbing him over his mouth and pushing his head down, grabbing his head between his hands and shaking him, smacking him on is back and buttocks, hitting him on his groin and flicking his genitals, and throwing the baby, strapped in his capsule, onto the ground. The baby suffered bruising to his face and genitals, a retinal haemorrhage in his right eye (thought to be due to shaking) and a subdural haemorrhage (life threatening bleeding between the skull and the brain);
LP acknowledges that his behaviour cannot be justified and he is filled with remorse;
He was jailed for 2 1/2 years and was beaten up while in jail. While in jail in 2001 he completed a Stress Management Program, a Cognitive Skills program and Anger Management Program. While on parole he completed a Triple P Parenting Program and later completed a 15 week Nurturing Program facilitated by the Department of Families, Youth and Community Care. He subsequently attending counselling to address anger management issues between March 2006 and May 2007;
He reunited with CS following his release from jail and his relationship with her parents remained strained. He was eventually allowed unsupervised access with his son;
In October 2004 allegations were made that he had abused his son again (using a belt for discipline, and sexual abuse). LP denies the allegations. At the time the allegations were raised with him, he left a meeting with the Department when he heard police would be attending. He drove to his home in Brisbane, gathered some belongings, and drove to Sydney to stay with a friend. He flew back to Brisbane for a meeting, only to be unable to contact his wife and returned to the airport and flew back to Sydney the same day. He subsequently drove back to Brisbane, leaving at 6pm and voluntarily participated in an interview with police at about 2.30am the next morning. He was never charged in relation to these offences although Departmental records indicated that a “substantiated risk outcome” was recorded;
LP moved in with a flatmate who, he says, stole his belongings and called him a paedophile. Police were called while LP moved out of the home. The next day he was involved in an altercation with the driver of a motor vehicle in a carpark after he ran into the back of her car. He says that it was an accident and that the driver reacted by approaching him angrily with her keys pointing out between her fingers. He describes “freaking out” and using a display sword in his car to frighten her off before driving away. The incident was reported to police who began looking for him. He hired a car and drove to Sydney to stay with a friend. He flew to Brisbane for a police interview, was charged, and flew back down to Sydney. While in Sydney he fought with his wife over the phone and he later drove back to Brisbane and to CS’s parents home and “yelled and screamed outside their house”. CS obtained a Domestic Violence Order, naming her parents and the child on the order. LP states that CS’s parents themselves took out a Domestic Violence Order against him;
He appeared in court in relation to the incident with the sword and felt that witness statements tendered were not accurate. He was upset leaving court, and tailgated a car before speeding past (witnesses say at 160 km/h). He was subsequently charged with Dangerous Driving. LP puts these incidents down to mismanagement of the stress he was under;
He moved out of Brisbane and about 3 months after the breakup of his marriage he moved to Sydney to live with a woman he had met online a couple of months previously. After about another 3 months the woman’s stepfather told LP to leave. LP states, “He tried to man handle me out of the place and I ended up pushing him out the front door and down the front stairs. Police in NSW became briefly involved and no charges were laid against either of us.”
He met his current wife LK around late 2005. They married in 2011. LK has a child from a previous relationship and the three have formed a family unit. LP describes their relationship as respectful, functional and happy. LP has been responsible for caring for the child on his own for many years while his wife works;
After the home he shared with LK flooded in 2008, they moved in with her parents. Problems and conflicts arose which culminated in LK’s mother pushing and slapping him. He reacted by pushing her away and she fell. As she approached him again he pushed her away and left. Both parties applied for Domestic Violence Orders against each other. LP says it was necessary to get an Order so he and his wife could retrieve their possessions from her parents’ home;
LP describes a “minor altercation” with his wife’s uncle. He says that police were called but no charges were laid;
In 2008 / 2009 further allegations of abuse of a child were made against him. LP denies the allegations. There have been no further allegations made against him and no further criminal history.
PROFESSIONAL REPORTS
Timothy Ryan, psychologist, prepared a pre-sentencing report dated 10 October 2000. Mr Ryan had conducted 15 consultations with LP, each of two hours. Mr Ryan considered that LP had Chronic Post Traumatic Stress Disorder and that he met all nine of the criteria for Borderline Personality Disorder (five criteria are required to make the diagnosis).
Mr Ryan provided a further report dated 5 January 2013. He has not provided counselling to LP since his 2000 report. Mr Ryan states that, based on the information provided by LP, it is his opinion that “LP does not present a risk to children”.
It is unfortunate that Mr Ryan was not available to present oral evidence at the hearing. While his report reflects much of the evidence provided by LP, it does not touch on the interpersonal disputes LP has experienced with extended family members over the years, and does not mention the tailgating (only the speeding).
Dr Frank Walsh, clinical psychologist, prepared a report dated 16 June 2014. Dr Walsh saw LP on 14 occasions (a total of 16 contact hours) and interviewed LK for one hour. Dr Walsh has produced a comprehensive report which touches on most of the evidence presented at this hearing.
Dr Walsh provided LP with 7 one hour sessions of cognitive behaviour therapy to assist him to understand how to deal with challenging circumstances without experiencing anger. Following the therapy, Dr Walsh conducted various tests for psychopathology, anger, and risk for violent behaviour. His results were all within a normal range.
It is Dr Walsh’s clinical opinion that LP is no longer displaying the symptoms of Post Traumatic Stress Disorder, Borderline Personality Disorder, and Trichotillomania (hair pulling).
Dr Walsh finds that LP is not currently suffering from any diagnosable psychological disorder and is at no greater risk of engaging in violent behaviour towards children or adults than other members of the general population operating within the normal range. Following LP’s engagement in cognitive behaviour therapy, Dr Walsh believes that the likelihood of him experiencing anger and responding aggressively in situation of perceived injustice is lower than that of the average person considered to be operating within the normal range.
Dr Walsh states that previous counselling which LP undertook did not properly address the causality of his anger. Dr Walsh states that he identified that gap in LP’s knowledge, and addressed it. Dr Walsh believes that it is unlikely that LP will revert to his former way of behaving as he has learnt a better way of interacting.
This is a difficult matter. I have placed significant weight on the evidence of Dr Walsh (and note that it is supported by the evidence of Mr Ryan). I must determine whether this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. I have weighed up the risk and protective factors I have identified.
Protective factors are present in this case. LP is clearly remorseful for his actions, particularly for his assault on his baby son. He has undertaken counselling and courses of study and has reflected on how to avoid committing such an assault again;
LP has had no criminal charges since 2005 and no recorded involvement with the Department of Communities, Child Safety and Disability Service since 2005;
LP has worked with professionals (Mr Ryan, Dr Walsh, and his GP) to manage and address his symptoms and his reactions to difficult situations. Mr Ryan and Dr Walsh find that LP does not meet the diagnostic criteria for borderline personality disorder and no longer suffers from post traumatic stress disorder.
LP worked co-operatively with the Tribunal, providing detailed evidence and answering questions to the best of his ability. He says that he is “rehabilitated” and is not a risk to children. The assault against his son has not been repeated;
LP is committed to maintain a healthy and low stress lifestyle. Karate gives him a great deal of self confidence and social opportunities; he has a good professional support network and sees Mr Ryan now is a friend and mentor; he has good social support from friends; he sees a regular GP and is looking after his physical health; he has formed a committed family unit with his wife and her son.
LK, friends and a fellow karate instructor all provided evidence of LP’s appropriate interactions with children. Friends describe LP as a calm person, and a peacemaker who helps others cope with stress. LK says that she has noticed that LP is much better at dealing with stress than he used to be. She states that LP looks after her son on weekends while she works and has never been concerned leaving them together.
LP says that he has been stable since 2007. He does not now believe that smacking is effective in disciplining a child. He prefers to talk issues through. He has worked with animals in recent years and cares for pets in his own home without an incident;
There are risk factors. LP’s assault on his baby son is highly relevant to my consideration, as is his behaviour in threatening a woman with a replica sword and driving in a threatening manner. Persons who hold Blue Cards have a very high position of trust – they have unfettered and often unsupervised contact with children and need to demonstrate their ability to think calmly and rationally, and to ensure a safe environment for those children;
LP’s relationships with the extended families of both of his wives, family members of former girlfriends, and a flatmate are marked by conflict. I note that while no criminal charges have been laid, police have been involved and Domestic Violence Orders have issued. LP and LK remain estranged from her parents;
LP has acted erratically and dangerously when upset / tired – tailgating and driving at excessive speed, driving the wrong way up a one way street and causing a serious car accident, hiring a car and driving to Sydney to avoid discussing allegation made against him with the police, flying backwards and forwards between Brisbane and Sydney in a state of high drama. These are not the considered actions of mature and responsible adult. I accept that these events occurred some time ago but they are relevant to my consideration;
LP committed offences between 1999 and 2005 which involved violence and threatening behaviour. The assault on LP’s 12 week old son was horrific and his behaviour as a driver of a motor vehicle has been threatening and dangerous;
A Blue Card is not conditional and is fully transferable across all areas of employment. Blue Card holders are not necessarily supervised;
I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. LP seriously assaulted his 12 week old baby, has a long history of interpersonal conflict (often involving the police), has exhibited erratic behaviour and has used a replica sword and his car to threaten members of the public. This combination of factors makes this case exceptional. I will confirm the decision to issue a negative notice.
Non-publication Order
The parties submit that a non-publication order is appropriate in this matter, to avoid indentifying the children mentioned. Non-publication orders can only be made in specific situations, including where it is necessary in the interests of justice.[3] I note that The Child Protection Act 1999 prohibits the publication of information that is likely to lead to the identification of a child who has been the subject of an investigation by the Department.
[3]QCAT Act s 66.
I am satisfied that it is necessary in this case to issue a non-publication order over any material that is likely to lead to the identification of the child. That will include material held on the Tribunal file and the names of LP, his current and former wife, his child, LK’s child and their extended families.
LP submitted that a non-publication order should also cover all witnesses. I am not satisfied that such an order is necessary. In any event, only professional witnesses are identified in this decision.
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