AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

CITATION: AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 PARTIES: AX v Commissioner for Children and Young People and Child Guardian APPLICATION NUMBER: APL120-12 MATTER TYPE: Appeals HEARING DATE: 18 July 2012 HEARD AT: Brisbane DECISION OF: Kerrie O'Callaghan, Presiding Member Ron Joachim, Member DELIVERED ON: 18 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal is set aside and the following decision is substituted: (i) That the decision of the Commissioner for Children and Young People and Child Guardian to issue AX with a negative notice is set aside. (ii) That the Commissioner for Children and Young People and Child Guardian is to issue a positive notice to AX. 4. The parties are to provide written submissions to each other and to the Tribunal on AX’s application for costs, by 4:00pm on 1 August 2012. 5. The application for costs will be determined on the papers. CATCHWORDS: APPEAL – BLUE CARD – whether error of law – whether Tribunal failed to properly inform itself – whether Tribunal failed to take into account or gave too little weight to relevant considerations – whether Tribunal can rely on evidence of treating -- 1 of 8 -- 2 psychologist in relation to risk of reoffending Commission for Children and Young People and Child Guardian Act 2000, ss 155, 221, 225, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 28, 142, 147 Commission for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Commission for Children and Young People and Child Guardian v Lister [2011] QCATA 22 House v R [1936] HCA 40 TAA [2006] QCST 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES and REPRESENTATION (if any): APPLICANT: AX represented by Mr C K Copley instructed by Mr A Palombo RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Mr Craig Capper REASONS FOR DECISION Background [1] This is an appeal against a decision of the Tribunal exercising its review jurisdiction to confirm a decision of the Commission for Children and Young People and Child Guardian to issue a negative notice. The applicant is AX. He seeks a positive notice and blue card to allow him to complete a course of study, such course requiring contact with children. [2] AX was issued with a negative notice by the Commissioner on 5/7/11. The Commissioner relied on AX’s criminal history which included charges for procuring a sexual act by threat/intimidation and offical corruption and a conviction for receiving a corrupting benefit. [3] Essentially he sought sexual favours in return for the granting of a visa when he was employed by the Department of Immigration. He was sentenced to 18 months imprisonment. [4] The Commissioner, after receiving submissions and a psychological report from AX considered that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to AX. -- 2 of 8 -- 3 [5] Following a hearing to review this decision, the Tribunal agreed with the Commissioner. Leave to appeal [6] This appeal is based on the contention that the Tribunal decision included errors of fact and law. Leave to appeal is required. The appellant has sought this leave.1 [7] Section 147 of the QCAT Act outlines what the Tribunal must do when deciding an appeal on a question of fact and law. Subsection 3 provides that in deciding the appeal the Appeal Tribunal may: (a) confirm or amend the decision or (b) set aside the decision and substitute its own decision. [8] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [9] In examining these questions the Appeal Tribunal considered the approach taken by the Tribunal to the evidence of psychologist Dr Susan McCullough when it exercised its review jurisdiction. [10] Because Dr McCullough had treated AX the Tribunal gave no weight to her opinion about the likelihood of AX reoffending. [11] The Appeal Tribunal considers that there is a matter of general importance that should be further argued. That is should weight be given to the views of a treating psychologist when considering recidivism? We also consider that it is possible that the Tribunal may have fallen into error by not giving sufficient weight to some evidence from the psychologist whilst relying on parts of her evidence and ignoring other relevant parts. [12] In the matter of Storrs6 the Appeal Tribunal found that an error occurred regarding weight of evidence if the conclusion is inconsistent with the overwhelming body of evidence before the Tribunal. [13] In this matter there was considerable lay evidence also supporting AX’s case. 1 Queensland Civil and Administrative Tribunal Act 2009, s 142. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 6 Commission for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. -- 3 of 8 -- 4 [14] We conclude that there is a reasonable prospect that the appellant will obtain relief and that some error may have occurred. [15] The Tribunal will grant leave to appeal. The appeal [16] In determining this matter the Tribunal will be guided by the principles outlined in House v R7. In that matter their Honours state: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.” [17] The appellant argued the following grounds of appeal:  The Tribunal erred in failing to take relevant evidence into account.  The Tribunal erred in law in failing to give adequate reasons for its finding a nexus between previous offending and a risk to children.  The Tribunal erred in taking irrelevant considerations into account.  The Tribunal erred in placing undue weight on considerations identified as going to risk factors and erred in failing to place sufficient weight on matters going to protective factors.  The Tribunal erred in failing to place sufficient weight of the appellant’s treating psychologist and other witnesses.  The Tribunal erred in placing itself in a position of expert and/or in using its own expertise as a makeweight in assessing the evidence before it.  The Tribunal erred in failing to take into account the hardship that the appellant would face in the event that the Commissioner’s negative decision was confirmed.  The Tribunal erred in failing to provide consistent reasons or consistent conclusions on the evidence before it. 7 House v R [1936] HCA 40. -- 4 of 8 -- 5  The Tribunal erred in drawing a conclusion of potential risk to children from the evidence before it.  The Tribunal erred in failed to direct that further evidence be obtained, namely a report from a forensic psychologist. [18] It will not be necessary for the Tribunal to consider all of these grounds. [19] It is perhaps pertinent to address the grounds relating to hardship that the appellant argues. [20] The Tribunal agrees with the respondent Commissioner that the Tribunal did not make any error warranting an order that the decision be set aside on this ground. [21] The Tribunal agrees with the Commissioner that the “ultimate issue when making a judgement under s 221(2) of the Commission for Children and Young People and Child Guardian Act 2000 is whether the applicant’s case is such that the issuance of a positive notice to the applicant would be contrary to the best interests of children.” [22] Section 155 of the Act provides that a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing is the paramount consideration. The Tribunal agrees with the Commissioner that any prejudice or hardship suffered by an applicant for a positive notice is an irrelevant consideration in circumstances where the Tribunal is satisfied that a positive notice should not be issued. In this regard the Tribunal notes the submissions of the Commissioner referring to a decision of Buss JA in the Western Australia Court of Appeal decision in Chief Executive, Department of Child Protection v Scott [No 2] where it was stated that, “I’m not persuaded that the risk of harm to children is to be balanced against the civil or other rights of the applicant.... In my respectful opinion the prejudice to an applicant is not a relevant consideration.” The Tribunal agrees with this view. [23] It follows therefore that this ground must fail. [24] We now turn to the way the Review Tribunal dealt with the evidence of the treating psychologist, Dr McCullough. She provided 2 reports to the Tribunal, the latest over 3 years following her last treatment session. [25] The grounds of appeal being considered here are:  The Tribunal erred in failing to take relevant evidence into account.  The Tribunal erred in failing to place sufficient weight of the appellant’s treating psychologist and other witnesses. [26] The review Tribunal considered it unsafe to rely on her conclusions regarding the applicant’s risk of recidivism. The Tribunal came to this view after considering the Australian Psychological Society Guidelines regarding expert reports. [27] The Tribunal had this to say: -- 5 of 8 -- 6 “Insofar as Dr McCulloch’s evidence is concerned, the rules of many courts specifically exclude people who have had a prior treating relationship with clients from providing expert reports for the client. Even where the rules of the court fail to explicitly exclude such reports, the prior treating relationship raises the question of impartiality of the treating Psychologist.” [28] The Appeal Tribunal is concerned with this approach. We note the remarks of Deputy President Kingham in the matter of Lister8 where her Honour stated in respect of a psychologist report at paragraph 38: “While not an independent opinion, it was a proper matter to advert to in analysing the risk Ms Lister might pose to children in her care.” [29] We believe that in rejecting the psychologist's evidence on recidivism, the Review Tribunal robbed itself of important evidence. It should have considered it and placed an appropriate level of weight on this opinion because:  Section 28 of the QCAT Act allows the Tribunal to inform itself in any way it considers appropriate.  The Tribunal is not bound by the rules of evidence or practices and procedures of courts of record unless it adopts them.  Formality and technicality are to be avoided where ever possible and allowable. [30] Whilst the Tribunal accepts that independent expert evidence would be preferable, it also considers it can accept the evidence of treating specialists and determine how much weight should be given to it. [31] We also take this view because a substantial part of the Review Tribunal’s reasoning revolved around the applicant's offending. [32] We note the Tribunal relied on the psychologist’s evidence at paragraphs 49.14 and 49.15 of its reasons where a less than favourable prognosis was given yet ignored the highly positive comments in Dr McCullough’s report. [33] Dr McCullough referred to the applicant's gaining of insight in both her May 2008 and October 2011 report. She conducted objective testing in 2011, some 3 years after treating the applicant. This testing led her to conclude “he was unlikely to offend with adults or children.” She also made further positive comments regarding his understanding of boundaries. [34] The Appeal Tribunal considers that the Review Tribunal made an error in not exercising its discretion to place weight on the treating psychologist’s view of risk of reoffending. This, in our view, was worthy of material consideration. We find the two grounds referred to above as made out. [35] It is not necessary for us to consider the remaining grounds, although it is relevant to comment on the grounds that: 8 Commission for Children and Young People and Child Guardian v Lister [2011] QCATA 22. -- 6 of 8 -- 7  The Tribunal erred in taking relevant considerations into account; and  The Tribunal erred in placing undue weight on considerations identified as going to risk factors and erred in failing to place sufficient weight on matters going to protective factors. [36] Because there is no weight given to the treating psychologist’s opinion on risk of reoffending, the risk factors listed in the Review Tribunal’s reasons have perhaps been overstated. The Tribunal erred in noting that, “it has not been until the appointment on 28/8/11 that the applicant had gained considerable insight …” This is at odds with the psychologist's 2008 report. [37] The Appeal Tribunal recognises the importance of insight as referred to in TAA.9 Both reports of Dr McCullough refer to the applicant’s gaining of insight. In the report of 2 May 2008 Dr McCullough says the applicant, “has acquired considerable insight into the motivation for his alleged offending behaviour". On 2 October 2010 Dr McCullough advised she conducted objective testing and concluded that AX is unlikely to offend with adults or children. She also stated that “he further voiced an understanding of the issues involving transgression of boundaries…” [38] Section 226 of the CCYPCG Act outlines what the Tribunal must have regard to in deciding whether or not there is an exceptional case. Of particular relevance is subsection 2(a)(4) which involves the Tribunal considering the nature of the offence and its relevance to involvement with children. This is but one factor to be considered. [39] The Review Tribunal placed significant importance on this. In the view of the Appeal Tribunal, the Review Tribunal did not demonstrate the relevance of the offending behaviour to a risk of harm to children sufficiently. [40] The Appeal Tribunal is satisfied that the potential protective factors as outlined in the Review Tribunal’s reasons for decision outweigh the potential risk factors. [41] The Appeal Tribunal rejects a significant number of potential risk factors on the basis outlined in the Review Tribunal’s reasons for decision. It does so because of the failure of the Review Tribunal to acknowledge the positive remarks of Dr McCullough and in particular her views about the risk of recidivism. The Appeal Tribunal sees the risk factors as the appellant having committed an offence that has breached community standards of acceptable appropriate behaviour which resulted in a term of imprisonment. He also used his position of power, authority and trust over a person in a vulnerable position to attempt to attain sexual gratification. [42] In addition, the appellant required further counselling to safeguard against reverting to learn behaviours if faced with stressful situations in the future. As a result the applicant could be exposed to his learned behaviours with children if he did not address his treatment needs. 9 TAA [2006] QCST 11. -- 7 of 8 -- 8 [43] The applicant has been in counselling for a short period of time involving six counselling sessions. [44] The Tribunal accepts the evidence of lay witnesses outlined in the Tribunal’s reasons and that the appellant's interactions with children are positive. [45] For the Tribunal to grant a positive notice it must be satisfied that this is an exceptional case such that it would harm the best interests of children for the appellant to have a positive notice. Exceptional means out of the ordinary or unusual. [46] In the context of harm to children there is nothing out of the ordinary in this case. The Tribunal has concluded that the appellant’s case is not an exceptional one such that it would harm the best interests of children for him to have a positive notice. The appeal is allowed. [47] The Tribunal will order that the negative notice be set aside and that a positive notice be issued. -- 8 of 8 --