Director General, Department of Justice v YTP [2026] QCATA 98

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director General, Department of Justice v YTP [2026] QCATA 98 PARTIES: DIRECTOR GENERAL, DEPARTMENT OF JUSTICE (applicant/appellant) v YTP (respondent) APPLICATION NO: APL004-25 ORIGINATING APPLICATION NO: CML022-21 MATTER TYPE: Appeals DELIVERED ON: 8 June 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for leave to appeal is dismissed. The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW AND/OR FACT – LEAVE TO APPEAL – whether error of law in failing to consider the Human Rights Act 2019 (Qld) – whether error of law in exercising discretion unreasonably – whether error of fact in finding applicant for blue card had insight FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE TERRITORY – OTHER MATTERS – where domestic violence from 2015 to 2017 – where department refused application for blue card on basis of exceptional case – where Tribunal on review found case not exceptional – whether Tribunal at first instance made errors of law and/or fact Human Rights Act 2019 (Qld), s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 142, s 146, s 147 -- 1 of 13 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Denisov v Ukraine [2018] ECHR 1061 Director-General, Department of Justice and Attorney- General v PML [2021] QCATA 51 House v The King (1936) 55 CLR 499 Johnston v Carroll (2024) 329 IR 365 LMJ v Director-General Department of Justice and Attorney-General [2024] QCAT 99 Re Kracke and Mental Health Review Board (2009) 29 VAR 1 Re TAA [2006] QCST 11 Thompson v Minogue (2021) VR 301 Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] This is an application for leave to appeal a decision of the Tribunal dated 25 October 2024 in which the Tribunal set aside the decision of the Director-General, Department of Justice and Attorney-General (the applicant) and substituted its decision that there was no exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). This had the effect that YTP was issued with a Blue Card. [2] The applicant seeks leave to appeal the Tribunal’s decision on the following grounds: 1. There was an error of law in a failure to consider the Human Rights Act 2019 (Qld). 2. There was an error of law as the Member erred in the exercise of the discretion to set aside the original decision, as the decision by the Member is unreasonable having regard to the evidence. 3. There was an error of fact in concluding YTP had insight into her behaviour from 2015 until 2017. [3] For error to be established in the exercise of a discretion, an appellant must generally show one or more of the following: the decision maker acted upon a wrong principle; the decision maker allowed extraneous or irrelevant matters to guide them; the decision maker was mistaken about the facts; the decision maker failed to take into -- 2 of 13 -- 3 account a material consideration; and/or on the facts, the decision is so plainly unreasonable or unjust that it may be inferred the discretion miscarried.1 [4] With respect to the asserted errors of law, leave to appeal is not required.2 Pursuant to s 146, in deciding an appeal against a decision on a question of law the Appeal Tribunal is not engaged in a rehearing of the matter. Rather, the result of its conclusion on the question of law will determine whether it is appropriate to confirm or to amend the decision, to set it aside and to substitute the Appeal Tribunal’s own decision or to return the matter to the Tribunal at first instance with appropriate orders.3 Obviously, upon such an appeal the outcome will depend upon whether, having regard to the Appeal Tribunal’s determination about the question of law, any findings of fact remain intact or not. That will determine whether the Appeal Tribunal can proceed to make final orders or whether there remains room for further litigation before the Tribunal at first instance.4 [5] With respect to the asserted error of fact, leave to appeal is required.5 If leave is granted, the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.6 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.7 If leave to appeal is granted, the applicant seeks orders that the appeal be allowed; for the Tribunal’s decision to be set aside and for the Appeal Tribunal to substitute its own decision that there is an exceptional case within the meaning of s 221(2) of the WWC Act. [6] In this case, which involves asserted errors of law and an error of fact, the Appeal Tribunal will determine if leave to appeal should be granted with respect to the question of fact. If leave to appeal is granted the matter will proceed by way of a rehearing. I will then deal with all asserted errors in the appeal proceeding.8 If leave to appeal the question of fact is not granted, then the questions of law will be considered.9 [7] YTP did not file any appeal submissions, despite having a number of opportunities to do so. On 3 September 2025 directions were made that the appeal be heard on the papers. Background [8] YTP was issued blue cards on four occasions between 2002 and 2016. Her fourth blue card was due to expire on 13 July 2019. Upon applying for a fifth blue card, certain information was provided by the then Department of Child Safety, Youth and Women10 (Child Safety), and the Queensland Police Service (QPS). That material 1 House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146. 3 QCAT Act, s 146. 4 Harrison v Meehan [2017] QCA 315 at [18], Sofronoff P, Ericson v Queensland Building Services Authority [2013] QCA 391. 5 QCAT Act, s 142(3)(b). 6 QCAT Act, s 147. 7 D&W Republic Pty Ltd v Quinn Kelk Pty Ltd [2025] QCATA 101, [5]. 8 Harrison v Meehan [2017] QCA 315 at [50], McMurdo JA. 9 Seymour v Racing Queensland [2013] QCATA 179, [18]. See also Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission [2022] QCATA 95, [22]. 10 Now the Department of Families, Seniors, Disability Services and Child Safety. -- 3 of 13 -- 4 revealed traffic offences and, more importantly, child protection material over the period from 2015 to 2017 which included one account of substantiated neglect, as well as the physical and mental abuse of her two children by her then partner. [9] On 9 December 2020, a negative notice was issued to YTP on the basis the decision- maker was satisfied it was an exceptional case in which it would not be in the best interests of children for the Respondent to hold a blue card. [10] On 14 January 2021, YTP applied to the Tribunal for a review of that decision. [11] On 8 May 2024 and 9 May 2024, there was a hearing before the Tribunal. On 25 October 2024, the Tribunal set aside the original decision and replaced it with the decision that there is no exceptional case. Reasons were delivered ex tempore. The Member’s reasoning [12] The Member reasoned as follows: (a) Section 221 of the WWC Act provides that a blue card must be issued unless the Tribunal is satisfied that an exceptional case exists in which it would not be in the best interests of children to do so. The paramount principle was the welfare and best interests of children which yields to no other interest, including that of YTP and any hardships she may face if not issued with a blue card which includes her desire to continue to work with children. (b) I have applied an independent mind and deliberation to the concerns raised by material provided by Child Safety and the QPS, irrespective of whether the concerns were substantiated or otherwise, in reliance on Director-General, Department of Justice and Attorney-General v PML [2022] QCATA 51 at [40]. (c) The period of concern was from 2015 to 2017 when Child Safety found YTP had caused physical harm to her children through lack of supervision and neglect; that she should have been aware of the increase of injuries to her children when another person entered the home (her de facto partner ‘J’) and in doing nothing, despite the past criminal history of J, she had failed her children. (d) In view of the significant nature of the ongoing harm, injuries and risk the children were subjected to during 2015 to 2017, YTP had many failings and was negligent in her duties as a parent to place her children’s needs first at that time. YTP lacked the requisite skills and fortitude to protect and advocate for her children. However, the neglect was situational due to the state of her wellbeing at that time, given she was experiencing domestic violence and had no family or community support. (e) YTP’s insight to and understanding of the behaviours of concern is a relevant consideration as to whether this is an exceptional case. (f) YTP downplayed J’s role and her own role in the injuries caused to her children, saying, for example, that she thought the children’s father was saying things out of jealousy and ‘coaching’ the children and that the injured child was highly energetic. (g) Overall, YTP’s evidence shows an acceptance that, in the period from 2015 to 2017, she did put her children in harm’s way and, on reflection, it breaks her heart, that she wishes they had told her and that she continues to punish herself. She says she was not able to see what she sees now. -- 4 of 13 -- 5 (h) YTP has received support since 2017 from Ms Mercer (psychologist, social worker and counsellor) and from Ms Smith (early childhood educator and YTP’s employer from 2016 to 2020). Both are supportive of YTP and consider she would not pose a risk to children if she was granted a blue card. Ms Mercer said YTP had benefited from various therapies, including EMDR, cognitive behavioural therapy and art therapy. Ms Mercer said there was no need for further therapy from 2021 and that YTP has the skills to seek help if required in the future. Ms Mercer said YTP had excelled in therapy and described her as a ‘success story’. Ms Smith said she would employ YTP today if she had a blue card, that YTP knew her limits and was very passionate about working with children. She thinks YTP is a stronger and better person for having been through what she had. (i) YTP’s witnesses were honest and showed the changes YTP had made and her commitment to ensuring she can move forward, that she has built a suite of skills to ensure she is not in that position again. She continues to address and mitigate the Department’s concerns and is committed to change for herself and her children. The time from 2015 to 2017 was at its core, situational, due to her life at that stage, including DV, no support and no coping skills. (j) YTP has a positive relationship now with her ex-husband and father of the children. They co-parent; have done online courses together; their relationship is good; and they support each other. YTP has shown they can work together and put the best interests of their children first. (k) YTP’s children received counselling organised by the Department from 2017 which YTP continued on her own account. (l) YTP has shown insight and remorse. She is well aware of the ramifications, should she not continue to move forward and continue to build the skills she has gained. YTP has remorse for the past and the harm that her children were subjected to and has addressed her failings in therapy, by building supports and by acknowledging her failures and addressing them. (m) YTP sought professional help, completed courses of her own volition to improve her parenting and coping mechanisms to ensure the tribunal is satisfied that if alike occasions occur again, she is well equipped to properly deal with these matters promptly and safely, with a focus that remains on the best interests of children. (n) Her ability to now co-parent positively with her ex-husband, satisfies the Tribunal that she has a deeper awareness of, and the ability to place, the best interests of children first and above her own interests. Further, that she has boundaries and coping mechanisms in place that she did not possess before, that she is trying to change her life and the lives of her children and has accepted her role in the matters of concern. (o) Accordingly, the decision is set aside and replaced with the Tribunal’s decision that there is no exceptional case. -- 5 of 13 -- 6 Ground one: There was an error of law in a failure to consider the Human Rights Act 2019 (Qld) [13] The applicant submits the Tribunal erred in not taking the Human Rights Act 2019 (Qld) (‘HR Act’) into consideration in reviewing the ‘blue card’ decision which is an error of law. [14] A ‘public entity’ has two obligations under s 58(1) of the HR Act: (a) not to make a decision in a way that is incompatible with human rights (the ‘substantive limb’ in s 58(1)(a)); and (b) in making a decision, not to fail to give proper consideration to a relevant human right (the ‘procedural limb’ in s 58(1)(b)). [15] Section 58 has been said to apply ‘both to the way a decision is made and to the decision itself’.11 [16] The Tribunal, when acting in an administrative capacity, has been held to be a ‘public entity’.12 It has been held that, ordinarily, when a tribunal exercises its merits review jurisdiction, it will be acting in an administrative capacity.13 However, whether s 58 applies to a review of a particular decision has been said to depend on ‘whether there is a real discretion involved which involves the balancing of relevant factors including benefits and harms’.14 [17] Under the WWC Act, a person may apply for review of a ‘chapter 8 reviewable decision’15 which includes a ‘decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive issued the person a negative notice’.16 [18] By s 221(2) of the WWC Act, the Tribunal on review (standing in the shoes of the chief executive) must issue a negative notice to the person if the Tribunal – (a) is aware of relevant information about the person; and (b) is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person. [19] A decision about whether a case is ‘exceptional’ within the meaning of s 221(2)(b) involves the exercise of a discretion.17 The discretion must be exercised reasonably.18 [20] It follows that the Tribunal, in determining whether it was an ‘exceptional case’, must have acted compatibly with human rights and given proper consideration to human 11 Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 at [28]. 12 HR Act, s 9(4)(b). 13 Re Kracke and Mental Health Review Board (2009) 29 VAR 1, 73 [312] (Bell J). 14 Murdock v Brisbane City Council [2025] QCAT 297, [61], [63] relying on SQH v Scott [2022] QSC 16, [140], [142]-[144]. 15 WWC Act, s 354. 16 WWC Act, s 353(a)(i). 17 Commissioner for Children and Young People and Child Guardian v Maher & anor [2004] QCA 492 at [1] (Philippides J and McPherson JA) and [7] (Jerrard JA). 18 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29] (French CJ). -- 6 of 13 -- 7 rights, unless the Tribunal could not reasonably have made a different decision because of a statutory provision.19 Substantive compatibility with human rights [21] Under s 58(1)(a) it is unlawful for the Tribunal to make a decision in a way that is not compatible with human rights. The phrase compatible with human rights means either the decision does not limit human rights, or, if it does, those limits are justified.20 A decision will limit human rights if it places limitations or restrictions or interferes with the human rights of a person.21 [22] Compatibility with human rights should be considered in three stages: engagement; limitation, and justification. It is submitted that the Member did not identify the human rights relevant to or apparently limited by the decision. [23] The applicant contends that the following human rights were relevant to the Member’s decision and should have been considered: (a) for YTP, (i) section 25(a) – right not to have the person’s privacy unlawfully or arbitrarily interfered with; and (ii) section 25(b) – right not to have the person’s reputation unlawfully attacked. (b) for children, (i) the right to the protection that is needed by the child and is in the child’s best interests under s 26(2). [24] For the reasons below, although the Tribunal did not apply s 58(1)(a), I am not satisfied the failure to do so was material to the outcome, or, as is sometimes said, the decision was not “vitiated by the error”.22 [25] YTP’s rights were not limited by the decision which was, in effect, to grant her a blue card. In terms of the way the decision was made, there was an interference with YTP’s privacy. However, the interference was neither unlawful nor arbitrary being a level of interference authorised by the WWC Act and which was relevant to the criteria for assessing suitability for a blue card. To the extent YTP’s reputation suffered as a result of the material disclosed by Child Safety, it was clearly not the result of an ‘unlawful attack’. [26] In relation to a child’s ‘right to the protection needed by the child, and is in the child’s best interests, because of being a child’, I accept that s 26(2) of the HR Act was not referred to. However, the Tribunal applied, as a paramount consideration, the best interests of children as required by s 6 of the WWC Act. The failure to expressly consider whether the decision was compatible with the right in s 26 was not, in my 19 HR Act, s 58(2). 20 HR Act, s 8; Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, [305]. 21 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, [306]. 22 See Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 (Moffitt P), cited with approval in Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177 (Handley JA) and in Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [11]. -- 7 of 13 -- 8 view, material in circumstances where the Tribunal decided, in the context of the importance in giving paramountcy to the best interests of children, that there was no exceptional case. Procedural limb [27] The Tribunal was required in making it’s decision to give ‘proper consideration’ to a human right relevant to the decision which includes identifying the human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.23 [28] I am satisfied the Tribunal failed to do so. That said, I am not satisfied, that the failure to do so was material in the circumstances. As noted above, the human rights of privacy and reputation are limited in their terms. They did not apply to YTP whose privacy and reputation were necessarily affected by the enquiries the Tribunal needed to make. In any event, YTP was successful in the review. [29] In relation to the rights of children to be protected, the Tribunal did consider this in the form of the paramount principle underpinning the WWC Act. I am satisfied that the error to consider the right as expressed in s 26 was not material to the outcome. [30] The Member considered all factors relevant to the reviewable question as to whether there was an exceptional case and decided for the reasons she outlined, that it was not. Given the Member clearly took into account the paramount principle and did not take into account ‘hardships and prejudices’ YTP may have suffered in making her decision, I am satisfied that the decision was compatible with human rights in the sense that the outcome was demonstrably justified by an application of the WWC Act. [31] The failure to consider the HR Act could not realistically have led to a different result.24 [32] This ground of appeal does not succeed. Ground two: There was an error of law as the Member erred in the exercise of the discretion to set aside the original decision, as the decision by the Member is unreasonable having regard to the evidence [33] The applicant submits there was an error of law in that the Tribunal erred in the exercise of its discretion to set aside the original decision, as the Tribunal’s decision is unreasonable having regard to the evidence. The applicant refers to it as the ‘second’ type of error identified in House v The King, being that of unreasonable on the facts leading to a substantial wrong, rather than the identification of a specific error or misapplication of principle.25 The applicant refers to Gotterson JA’s decision in Flegg v Crime and Misconduct Commission,26 an appeal from the exercise of a statutory discretion in deciding a disciplinary review. [34] In Flegg, Gotterson JA said: 23 HR Act, s 58(5). 24 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ); [45] and [59] Gageler J; Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20, [264]. 25 House v The King (1936) 55 CLR 499 at 504-505. 26 [2014] QCA 42, [14]-[16]. -- 8 of 13 -- 9 In a joint judgment, [in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225] Hayne, Kiefel and Bell JJ observed that Wednesbury is not the starting point for the standard of unreasonableness, nor should it be considered the end point. Their Honours continued: The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided… In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was ‘perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty...unreasonableness, attention given to extraneous circumstances, disregard of public policy’ were all relevant to the question of whether a statutory discretion was exercised reasonably.27 After referring to the close analogy between judicial review of administrative action and appellate review of a judicial discretion identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd in the context of unreasonableness and to the principles governing the review of judicial discretion articulated in House v The King concerning inference of unreasonableness, their Honours said: “…The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” In separate reasons in Li, French CJ reminded that the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker. Gageler J described the test for unreasonableness as stringent, noting that judicial determination of Wednesbury unreasonableness in Australia has in practice been rare.28 [35] The applicant submits that, based on the Child Safety and QPS material (AB1 at 61- 372) the Tribunal’s decision was unreasonable and an error of law was made. 27 Ibid at [68]-[69]. 28 Ibid at [14]-[16]. -- 9 of 13 -- 10 [36] The issue for the Appeal Tribunal is whether it was unreasonable for the learned Member to decide that YTP’s case was not exceptional, or, to adopt the words of the plurality in Li, lacked an evident and intelligible justification. [37] The applicant says the evidence, on the whole, reflected adversely on YTP’s ability to provide a safe and protective environment for children under her care and that the concern was heightened by her previous experience and training as a childhood educator. In light of the evidence, the applicant submits the Tribunal’s decision that there was no exceptional case in which it would not be in the best interests of children for her to hold a blue card, was unreasonable. This is bolstered, it is said, by YTP’s lack of insight, which forms the basis of ground three. [38] In considering ground two, I note that I am not conducting another merits review. I am not evaluating the source material provided by the Department and reviewed by the learned Member to arrive at my own conclusion about whether YTP’s is an exceptional case such that she be issued a negative notice. My task is restricted to assessing the process of reasoning undertaken by the Member and the decision she made, within the strict confines of legal unreasonableness. [39] Apart from summarising key aspects of the evidence, namely events from September 2015 to July 2017, the applicant’s submissions do not identify features of the Member’s reasoning in applying the WWC Act to the evidence which inform a conclusion that a decision that there was no exceptional case lacked an evident and intelligible justification. [40] It can fairly be inferred that the submissions, by summarising the events that occurred from 2015 to 2017, contend that those events were so serious and reflected so badly on her ability to provide a safe and protective environment for children under her care, that it was unreasonable to regard her case as anything other than exceptional. [41] The learned Member referred to the paramount principle being the welfare and best interests of children and said that ‘it yields to no other interest which includes the interest of… [YTP]’. The Member said she had had regard to the information provided by the QPS and Child Safety and to the considerations which fall under s 288(2) of the WWC Act. The Member correctly acknowledged that the concerns of the department were focused on evidence throughout the period between 2015 and 2017 when YTP’s children were subjected to her then partner’s excessive and inappropriate discipline, negligence due to a lack of supervision, drug use within the home and ongoing domestic violence.29 [42] The Tribunal considered that evidence in some detail and found that YTP had, during that time, ‘many failings and was negligent in her duties as a parent to provide a safe haven and home for her children when in a relationship with J and consequently placed, whether inadvertently or not, their needs first.’30 [43] The Member also found that her failings were due in part to her own traumas and lack of parental skills at the time due to her ongoing DV and past DV history and that they were related, but situational, to the state of her wellbeing at that particular time, which included her lack of support from family and an absence of any community supports.31 29 T1-5. 30 T1-6. 31 T1-6. -- 10 of 13 -- 11 [44] The Member considered YTP’s evidence in some detail and said that YTP was ‘not able to see what she sees now’ and that she blames herself but, had she known, she would not have put her children in those situations.32 YTP said, and the Tribunal accepted, that she understood the harm that exposure to DV causes to children. The Tribunal found that overall, her evidence showed an acceptance that she had at those times put her children in harm’s way and, upon reflection, that it broke her heart and that she wishes they had told her. [45] The Tribunal acknowledged the support YTP had received from Ms Mercer, psychologist and counsellor over many years since 2019, and from Ms Smith, her employer at the kindergarten where she had previously worked. The Tribunal accepted the evidence of YTP and Ms Mercer that she was aware of her stressors and triggers and that she was now well equipped to deal with any DV issues should they arise. Ms Mercer considered there was no need for any further therapy from 2021. The Tribunal referred to Ms Mercer’s evidence that the therapies she had used with YTP had assisted in restructuring her thinking, role modelling, to challenge thoughts and introduce new behaviours which YTP had incorporated, and which had resulted in significant changes having been made. Ms Mercer said that YTP had excelled in therapy and was indeed a success story and that the chances of any regression were remote. [46] The Tribunal also acknowledged the evidence of Ms Smith who was aware of the Reasons for decision and of the two substantiated risks against YTP. She said that YTP was amazing with children, that she had learned from her past and that she would hire her today if she had a blue card. [47] The Tribunal also referred to the statement given by YTP’s former husband and father of her two children, who said that they positively co-parented their children together and that she had his support. [48] Essentially, the Tribunal considered that YTP had tried to address and continued to address and mitigate the concerns held by the Department and that she was committed to change for herself and for her children; that the period from 2015 to 2017 was traumatic and harrowing for all, particularly the children, but that it was ultimately, and unfortunately, at its core, situational due to her life at that stage, including DV and with no support or coping skills.33 Importantly, the Member found that she was satisfied this had now changed and that YTP was well aware of the ramifications should she not move forward and continue to build the skills she has gained. [49] In my view, the learned Member’s decision, summarised in brief above, did not lack an evident and intelligible justification such that I would conclude that her decision should be set aside as being unreasonable having regard to the evidence. [50] The learned Member considered all the factors she was bound to consider and her decision, in effect that YTP was not the same person she was when she was experiencing domestic violence from 2015 to 2017, such that hers was not an exceptional case, was not such an inherently implausible outcome to constitute legal unreasonableness. [51] The second appeal ground must fail. 32 T1-9 to T1-10. 33 T1-15. -- 11 of 13 -- 12 Ground three: There was an error of fact in concluding YTP had insight into her behaviour from 2015 until 2017 [52] The applicant submits there was an error of fact in concluding YTP had insight into her behaviour from 2015 to 2017, particularly given the Tribunal appeared to recognise she ‘did not have full insight into that matter and did downplay, on occasion, J’s role and her roles in these matters.’ [53] An appeal court or tribunal should not interfere with a finding of fact if the finding was reasonably open on the evidence.34 More recently, the High Court has held that a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.35 [54] The applicant also refers to: that YTP had been in a new relationship for eighteen months when she reported to QPS an incident which resulted in another domestic violence order naming herself as the aggrieved against her new partner; that she made submissions to the department saying her new partner suffered chronic pain and struggled with physical demands of daily activities however was capable to watch her children while she went to work; and in her statement of evidence filed in the Tribunal that she did not intentionally leave her children with J knowing they might be abused and that she believed he was capable, competent and able to care for them. Lastly, in Ms Mercer’s report that YTP remained of the view that there was nothing she could pinpoint as indicating that he was hurting her children or that he was a dangerous risk. [55] In my view, the Tribunal, when it found she lacked insight was referring to the matter when her child had a broken arm. The Tribunal seemed to be saying that she should have known better than to ignore the swelling and to discount that J may have caused her harm. [56] That said, the Tribunal appears on the whole to have accepted that she does now have insight into her behaviour. The Tribunal accepted that she would now question and be more suspicious, that there were things she missed as she was suffering from abuse, but did not consider he would inflict it on them. She considers DV was a reason she, in fact, missed the signs and that she continues to punish herself when going over those moments. [57] The Member referred to ‘insight’ into the harm caused by these incidents as being a ‘critical matter’ for the Tribunal.36 The Tribunal said that ‘true insight into the harm that has been caused is considered a protective factor’ and referred to the matter of TAA [2006] QCST 11 where the Tribunal observed that ‘a person aware of the consequences of his or her actions on others is less likely to reoffend than a person who has no insight into the effects of their actions on others’. The Tribunal was aware that insight, particularly in the context of protecting children, was an important protective factor. [58] In my view, on a reading of the reasons as a whole, the Member accepted that YTP lacked insight at the time but would now be more circumspect if the same 34 Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513. 35 Robinson Helicopter Company Inc v Mc Dermott (2016) 331 ALR 550 at [43] citing Fox v Percy (2003) 214 CLR 118 at [28]-[29]. 36 T1-7. -- 12 of 13 -- 13 circumstances were to arise in the future. YTP had obvious and deep remorse for the harm she had caused her daughters and now described the perpetrator as a ‘monster’. [59] I am not satisfied that the Tribunal erred in concluding YTP had insight into her behaviour from 2015 to 2017. Leave to appeal is not granted with respect to the third ground of appeal. Conclusion [60] Accordingly, the appeal should be dismissed and the application for leave to appeal should be dismissed. I make orders accordingly. -- 13 of 13 --