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

CITATION: Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348 PARTIES: Commissioner for Children and Young People and Child Guardian (Appellant) v Kylie Rebecca Grose (Respondent) APPLICATION NUMBER: APL427-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Rogers DELIVERED ON: 8 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal on ground one is dismissed. 2. Appeal on ground two is dismissed. CATCHWORDS: APPEAL – CHILDRENS MATTERS – BLUE CARD – ‘EXCEPTIONAL CASE’- where Commissioner issued a negative notice – where respondent sought a review of the Commissioner’s decision – where Tribunal found circumstances did not amount to exceptional case – where Commissioner appealed on question of law APPEAL – CHILDRENS MATTERS – BLUE CARD – INADEQUATE REASONS - where Commissioner issued negative notice – where respondent sought a review of Commissioner’s decision – where tribunal found no exceptional case exists – where Commissioner appealed on basis Tribunal failed to provide adequate reasons for its decision Commission for Children and Young People and Child Guardian Act 2000 ss 5, 6(1), 155, 220, -- 1 of 6 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Senior Member Endicott [1] I have had the advantage of reading the reasons of Ms Rogers and I agree with her analysis of, and conclusions about, the issues to be determined in this appeal. For the reasons she sets out, the appeal must be dismissed. Member Rogers [2] The Commission for Children and Young People and Child Guardian Act 2000 (the Commission Act) has established a scheme to assess the suitability of people working with children. On receipt of an application by a person for a suitability notice the Commissioner must issue either a positive notice (commonly referred to as a ‘blue card’) or a negative notice. If the person has committed an offence which is categorised as a serious offence the Commissioner must issue a negative notice. In all other cases the Commissioner must issue a positive notice unless satisfied the circumstances constitute an exceptional case in which it would not be in the best interests of children to issue a positive notice.1 The Commission Act emphasises the paramount consideration for decision makers is to ensure ‘the child is cared for in a way that protects the child from harm and promotes the child’s wellbeing’.2 [3] Ms Grose applied for a blue card to allow her work and volunteer activities to involve children. She was issued with a negative notice by the Commissioner on 22 September 2011 and applied to the Tribunal for a 1 Commission Act s 221. 2 Commission Act s 155. 221,360 Queensland Civil and Administrative Tribunal Act 2009 ss 142 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Racing Queensland Limited v Dixon [2103] QCATA 172 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Cypressvale P/L & Anor v Retail shop Leases Tribunal [1995] QCA 187 Ricchetti v Lanbuilt Pty Ltd [2011]QCATA 266 -- 2 of 6 -- 3 review of this decision. Following a hearing held on 4 October 2012 in Toowoomba the Tribunal decided to set aside the decision by the Commissioner and issued a positive notice. [4] The Commissioner appealed this decision by an application filed 14 December 2012 on the following ground. Ground 1 - The Tribunal misdirected itself and erred at law by failing to have regards to relevant considerations, namely whether Ms Kylie Rebecca Grose’s ongoing unstable mental health issues posed a broader risk to children beyond the provisions of section 225 of the Commission for Children and Young People and Child Guardian Act 2000 (Qld) and the likelihood of reoffending, such that it was an exceptional case. [5] In its submissions in support of the application filed 13 March 2013 the Commissioner submitted the error, as stated, was a question of law. Further it argued that if it was considered the error was a mixed question of fact and law that leave should be granted to extend the appeal to those apparent errors of mixed fact and law. [6] In addition the Commissioner argued the Tribunal failed to provide adequate reasons for its decision to demonstrate what regard, if any, was had to the broader considerations pertaining to the best interests of children (the second ground of appeal). [7] A party may appeal a decision of the Tribunal3 however leave to appeal is required if the appeal is based on a question of fact or a question of mixed fact and law.4 Where the appeal ground is properly framed as a question of law the appeal may proceed as of right and leave is not required.5 [8] The Appeal Tribunal is satisfied the ground of the appeal identifies an error of law. It argues the Tribunal, by restricting its considerations to the factors set out in s 226 of the Commission Act, has applied the wrong test. It argues that the Tribunal has failed to consider those matters which go to the question of whether Ms Grose’s case is ‘exceptional’ such that it would not be in the best interests of children for a positive notice to issue. Accordingly leave to appeal is not required. [9] It is not in dispute that the Commission Act places an obligation on decision makers, including the Tribunal, to give effect to the principle that the welfare and best interests of the child are paramount.6 The Tribunal acknowledged this obligation in its decision at paragraphs 8, 13, 58 and 61. [10] The Commissioner’s argument is that while the Tribunal has considered those factors which it must consider under s 226 of the Commission Act it 3 QCAT Act s 142(1). 4 QCAT Act s 142(3)(b). 5 Racing Queensland Limited v Dixon [2103] QCATA 172 at [9]. 6 Commission Act ss 5, 6(1), 155 and 360. -- 3 of 6 -- 4 has not considered the broader issues pertaining to the best interests of children7 and thereby has failed to give effect to the paramount principle. [11] In the decision of Commissioner for Children and Young People and Child Guardian v Maher8 Phillippides J, referring to the then equivalent provision to s 226 stated … Section 102(5) does not expressly or impliedly confine the Commissioner to considering the matters specified therein and there is no basis for construing the provision in such a restrictive manner. In my view s 102(5) merely specifies particular matters which the Commissioner is obliged to consider in deciding the application. [12] The Commissioner contends that in this case there was a positive obligation on the Tribunal to consider evidence not raised by s 226 namely the nature, seriousness and instability of Ms Grose’s history of mental illness and the effect that would have on the best interests of children. [13] While the phase ‘the best interests of children’ has not been defined the Commissioner argues the protection from harm can be best understood by going to other sources such as the Child Protection Act 1999, the Family Law Act 1975 and the United Nations Convention on the Rights of the Child. When faced with similar arguments in the past to restrict or enhance the meaning of a term by looking to other sources this Tribunal decided the proper approach is ‘to consider its application in each particular case, unhampered by any special meaning or interpretation’.9 [14] It is difficult to see how any other approach can be justified. While the same phrase appears in many contexts no rigid or absolute meaning can be given to it. As a simple example the phase in the present context looks to determine the suitability of persons to work with children. This must raise different considerations to the situation where decisions are being made about the competing interests of separated parents. In the one case consideration is being given to the interests of children at large, in the other the relevant consideration is the best interests of the children of the disputing parents. The best guidance is to be found in the governing legislation itself. [15] The Appeal Tribunal accepts the proposition that there will be considerations not specified in s 226 which must be addressed to ensure the best interests of children are protected when determining whether there is an exceptional case justifying a negative notice. Failure to address those considerations could amount to an error of law. 7 Commissioner’s submissions [21]. 8 [2004] QCA 492. 9 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33]. -- 4 of 6 -- 5 [16] However in this case the Appeals Tribunal is not satisfied the Tribunal did not consider the relevant consideration identified by the Commissioner, namely Ms Grose’s history of mental illness, in the context of the best interests of children. The Tribunal set out in some detail the evidence it relied on from Ms Grose and the expert witnesses to reach an understanding of the extent and impact of her condition. The Tribunal also summarised the arguments by the Commissioner in a way which demonstrated those arguments were understood. [17] When determining whether Ms Grose’s case was exceptional the Tribunal acknowledged those areas giving it concern, looked to the circumstances of Ms Grose’s condition and its management and formed the view that ‘Whilst it could be said Kylie’s circumstances are unusual, in the context of the best interests of children, they are not out of the ordinary or exceptional’.10 [18] The Appeal Tribunal is not satisfied that the Tribunal failed to have regard to the relevant consideration of Ms Grose’s ongoing mental health issues in the context of the risk that condition posed to children including the likelihood of reoffending. The appeal on this ground is dismissed. [19] The Commissioner also argues the Tribunal failed to provide adequate reasons for its decision. In Sun Alliance Insurance Ltd V Massoud 11 Gray J summarised a previous decision12 which considered the purpose of giving reasons. It identified at least three purposes namely to allow the parties to see the extent to which their arguments have been accepted and understood, to further judicial accountability and to enable interested persons to ascertain the basis upon which cases will probably be decided in the future. [20] However it is generally accepted that the Tribunal is not intended to mimic a court or conduct its proceedings in the manner of a court and the adequacy of its decisions must be viewed in light of these considerations.13 Specifically the adequacy of the Tribunal’s reasons must be considered ‘in light of the simpler, expedited procedures it is obliged to adopt under the QCAT Act’.14 [21] Thus in looking to the adequacy of reasons the Appeal Tribunal must be careful to look to whether the reasons fit their purpose rather than whether they meet the standard expected from court decisions. [22] The Commissioner has detailed those factors not considered or adequately addressed by the Tribunal. It says the Tribunal has failed to undertake a holistic assessment of Ms Grose’s personal circumstances to assess her ability to effectively and appropriately care for and promote the welfare, best interests and well being of children. Further it says the 10 Reasons for Decision dated 26 November 2012 [61]. 11 [19891] VR 8 at 12 of 13. 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 – 280. 13 Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187 at 20 of 26. 14 Ricchetti v Lanbuilt Pty Ltd [2011]QCATA 266 at [3] -- 5 of 6 -- 6 Tribunal has failed to adequately address the arguments and concerns raised by the Commissioner relating to Ms Grose’s mental health and the lack of evidence that she will not pose a risk to children. [23] The Tribunal is not obliged to consider and respond to every argument put before it. The Tribunal has summarised the evidence of the witnesses and the arguments of the parties in a way that demonstrates they were heard and understood. It has acknowledged that the exceptional case must be determined in the light of the best interests of children and it has identified why it is of the view the circumstances of Ms Grose are not out of the ordinary or exceptional. [24] In these circumstances the Appeal Tribunal is not able to find the Tribunal failed to provide adequate reasons for its decision. This appeal on this ground is dismissed. -- 6 of 6 --