Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

CITATION: Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 PARTIES: Commissioner for Children and Young People and Child Guardian (Applicant/Appellant) v FGC (Respondent) APPLICATION NUMBER: APL230-10 MATTER TYPE: Appeals HEARING DATE: 2 March 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Julie Ford, Member DELIVERED ON: 5 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Extension of time is granted. 2. Non-publication order is granted. 3. Leave to appeal on ground one is refused. 4. Appeal on ground two is dismissed. 5. Any party wishing to seek an order for costs should file in the Tribunal and serve on its opponent written submissions within 14 days. CATCHWORDS: APPEAL – CHILDRENS MATTERS – BLUE CARD – ‘EXCEPTIONAL CASE’ – where the Commission issued a positive notice and a blue card to FGC – where the Commission was provided with further ‘investigative information’ about FGC and subsequently cancelled the positive notice, substituting it with a negative notice – where FGC applied for a review of that decision by QCAT – where the Tribunal found that no exceptional circumstances existed and set aside the Commissioner’s decision, and directed that a -- 1 of 11 -- 2 positive notice issue – where the Commission now seeks to appeal that decision on the grounds that the Tribunal misdirected itself as to whether it was an ‘exceptional case’ – whether grounds for leave to appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – INADEQUATE REASONS – where the Commission seeks to appeal the decision of the Tribunal on the grounds that it failed to give adequate reasons for its decision – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – EXTENSION OF TIME – where the Commissioner seeks an extension to lodge its appeal due to an error in fees paid – whether grounds to extend time APPEAL – CHILDRENS MATTERS – BLUE CARD – NON-PUBLICATION ORDER – where FGC seeks a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 – whether grounds for a non-publication order Commission for Children and Young People and Child Guardian Act 2000, ss 220, 221 Queensland Civil and Administrative Tribunal Act 2009, ss 17, 20, 61, 66, 142, 143 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited Buck v Bavone (1976) 135 CLR 110, cited Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389, cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, cited FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited Hope v Bathurst City Council (1980) 144 CLR 1, cited Hopper v Mt Isa Mines Ltd [1999] 2 Qd R -- 2 of 11 -- 3 496, cited Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) FCR 344, cited Kent v Wilson [2000] VSC 98, cited McClintock v Queensland Building Services Authority [2010] QCATA 68, applied OAA, Re [2006] QCSA 14, applied Phu v NSW Department of Education and Training [2010] NSWADTAP 76, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr C Capper for the Commissioner RESPONDENT: Mr S Hamlyn-Harris for FGC REASONS FOR DECISION [1] Under Chapter 8 of the Commission for Children and Young People and Child Guardian Act 2000 (Commission Act) a scheme has been set up to screen persons who might be working with children, to ensure they are suitable. The main purpose of the scheme, which involves the issue of what are commonly called ‘blue cards’, is to protect children from harm and promote their wellbeing. [2] Entitlement to a blue card involves the issue of a ‘positive notice’, which declares that the applicant is approved.1 Decisions about these matters are made by the Commissioner for Children and Young People and Child Guardian. Any review of the Commissioner’s decisions is to be undertaken by QCAT. [3] In 2007 the Commission issued a positive notice and a blue card to FGC. On 23 June 2009, however, the Queensland Police Service notified the Commissioner about ‘investigative information’ concerning FGC and supplied that information to the Commissioner. After considering the information the Commissioner decided to cancel FGC’s positive notice, and substitute a negative one, and that occurred on 18 January 2010.2 [4] FGC applied for review of that decision under the Commission Act. The decision was reviewable (QCAT Act, s 17). The review was conducted under s 20 of the QCAT Act, which requires the Tribunal to hear and decide it by way of a fresh hearing on the merits and, from that process, to produce the correct and preferable decision. 1 Commission Act, s 220(a). 2 After the decision was made the Act was substantially amended by the Criminal History Screening Legislation Amendment Act 2010 which commenced on 1 April 2010. That Act substantially renumbered the sections of the Commissioner for Children and Young People and Child Guardian Act 2000. -- 3 of 11 -- 4 [5] It was also required to decide the matter by reference to s 221 of the Commission Act.3 Section 221 provides that the Commissioner must issue a positive notice to a person, even if it is aware of investigative information, unless it is satisfied that the case is an exceptional one ‘… in which it would not be in the best interests of children for the commissioner to issue a positive notice’ – in which case the Commissioner must issue a negative notice. [6] The matter was heard by a QCAT Tribunal on 9 June 2010. It decided that no exceptional case existed, set aside the Commissioner’s decision, and directed that a positive notice issue. [7] Any appeal from that decision could only be brought on a question of law; appeals on a question of fact, or questions of mixed law and fact, can only be made with the Appeal Tribunal’s leave.4 [8] The Commissioner filed an application for leave to appeal or appeal5 but not until 29 September 2010, a considerable period outside the 28 days allowed under the QCAT Act for an appeal, or an application for leave.6 The Commissioner seeks an extension of time. Extension of Time for Appeal/Leave to Appeal [9] QCAT has the power to extend a time limit, unless doing so would cause prejudice or detriment which could not be remedied by an order for costs or damages.7 The uncontested evidence before the Appeal Tribunal is that the Commissioner sought to lodge its appeal in early August 2010, but failed to pay the correct fee. (The fees had been changed on 1 July 2010, but the Commissioner was not aware of that.) The registry refused the application. Through an oversight in the Commissioner’s office, the correct fee was not paid until 29 September 2010, when the application was accepted. [10] The factors relevant to an extension of time in QCAT were considered in McClintock v Queensland Building Services Authority [2010] QCATA 68. It was observed that the power to grant an extension of time is discretionary and, in the Tribunal, the usual factors to be considered would include whether or not there has been a reasonable explanation for the delay in filing; whether the granting of an extension of time would be fair and reasonable in all the circumstances; whether there has been any prejudice suffered as result of the delay; and, whether the substantive application has merit.8 3 Formerly, under the previous legislation, s 102 – the section under which the Commissioner had made its decision. 4 QCAT Act, s 142. 5 QCAT Form 39. 6 Commission Act, s 143. 7 QCAT Act, s 61. 8 Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) FCR 344. -- 4 of 11 -- 5 [11] It must also be a material factor here that the legislation looks to safeguard children, and that is something in which the community has a very strong interest. [12] For reasons which follow we think the appeal was, at least, arguable. The Commissioner’s explanation for the delay involves regrettable oversights but there is nothing novel or particularly alarming about them, and they constitute a plausible – if not necessarily satisfactory – explanation. There is no evidence of prejudice to FGC save, of course, for the upset and aggravation for him caused by the late filing. In the context of the overarching purpose of the Commission Act, none of the factors which tell against exercising the discretion in the Commissioner’s favour are of sufficient force to warrant refusing to do so. We conclude that the application to extend time should be granted. Non-Publication Order [13] Before turning to the substantive issues it is convenient to dispose of another application from FGC, for a non-publication order under s 66 of the QCAT Act. The Commissioner does not oppose the making of such an order, in the same terms as those made in the Tribunal, to the effect that the decision be de-identified. [14] We accept that the publication of FGC’s name would be contrary to the public interest. No charges have been laid against him. The need for identification is, here, different from that which attaches to cases in which there have been convictions, or charges.9 [15] In previous decisions the Tribunal has given weight to arguments that the publication of personal identity in cases where blue cards have been restored on review might deter people from exercising a right to seek that review and there is, therefore, a public interest in taking steps to prevent identification. A non-publication order is granted. Leave to Appeal [16] Ultimately the Commissioner argued two grounds of appeal which both, it contended, involved errors of law. [17] The first is that the Tribunal misdirected itself about the application of the test in establishing an ‘exceptional case’ in that it placed inappropriate weight upon the evidence of a psychiatrist, Dr CI, and (in particular) his opinion that nothing in FGC indicated that his psychological or biochemical make-up tended towards sexual deviance; and that it failed to give adequate weight to the evidence regarding the nature and seriousness of FGC’s alleged conduct, as it was described in the investigative information. [18] Secondly, it was said the Tribunal failed to provide adequate reasons. 9 See, eg, the Criminal Law Sexual Offences Act 1978. -- 5 of 11 -- 6 [19] It is appropriate to set out some background. The ‘investigative information’ given to the Commissioner was to the effect that between 1981 and 1983 FGC, then a Parish Curate, had engaged in a number of sexual interactions including masturbation, oral sex and anal sex with a male parishioner while the boy was aged between 16 and 18. At the time FGC was 25, and the offences are alleged to have occurred when he was the Curate Priest at the church where the boy worshipped with his family. [20] In particular it was alleged that during a three week period when the boy was entrusted to the live-in care of FGC, while his parents were overseas on holiday, FGC sexually massaged and performed oral sex on him. It was also alleged that FGC engaged in anal and oral sex acts with the boy on multiple occasions in that three week period. It was separately alleged that on other occasions the boy stayed with FGC in a motel and, again, oral and anal sex took place; that FGC took the boy to a sex shop and later attempted to perform anal sex on him; and, that another instance of anal and oral sex occurred when the boy visited FGC in a caravan park. [21] At the time of these alleged offences indecent treatment of a boy under 17 would have been the relevant charge, but it was not made out because the absence of consent was an element. [22] In the hearing before the Tribunal FGC gave oral evidence about his background and childhood, and education, and his life and work as a priest. He claimed, however, privilege against self-incrimination when asked to discuss aspects of his relationship with the boy. [23] Dr CI is a very experienced forensic psychiatrist with a specialty in assessing sexual deviance, who has worked extensively with clerics who have been guilty of abusing children. He undertook a lengthy clinical examination of FGC, and was extensively questioned during the Tribunal hearing. [24] His conclusion was, shortly, that FGC showed no signs of sexual deviation, and that there was nothing indicating he was a danger to children, or adults. His conclusion was supported by an opinion from another psychiatrist who had examined FGC in 2009. [25] Dr CI said that, even if the allegations now made against FGC were true, 30 years had since passed in which there was no suggestion of other behaviour of that kind. [26] Dr A, a retired child and adolescent psychiatrist who had known FGC for 9 years, described him as an excellent priest. Even with knowledge of the nature of the allegations made against him, Dr A was firm in his view that FGC was not a risk to children. [27] Five other persons who had known FGC for between 4 and 30 years gave evidence of his good work as a priest, and that nothing in his conduct suggested any interest in, or unusual behaviour towards, children. In particular one of these witnesses, FV, was a young man who had close connection with FGC after 2006 and in fact spent weekends at his home. FV says that FGC always behaved entirely appropriately towards him and, indeed, he ‘confidently doubted’ the allegations made against FGC. In its -- 6 of 11 -- 7 reasons the Tribunal accepted him as a ‘… believable witness of high integrity’. An ‘Exceptional Case’ [28] As the Commissioner’s argument was developed in its written submissions, the fundamental proposition it advances is that the phrase ‘exceptional case’ in the legislation is not used in the way that the words or phrase have their ordinary or dictionary meaning but, rather, are used and should be interpreted in a special sense, referable to principles which have been brought across from the family law jurisdiction relating to access to and contact with children. [29] This special meaning is said to have been acknowledged by QCAT’s predecessor Tribunal, the Queensland Childrens Services Tribunal, in its decision in OAA, Re [2006] QCSA 14 at paragraph [41] in which the following was said: The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk to harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the Family Law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount. [30] As we understood the Commissioner’s submission, it is that the phrase ‘exceptional case’ must be read and construed in the particular context of this overriding principle; and, while a question of law does not usually arise if words in a statute are to be read and construed according to their ordinary meaning, the position is different if they have to be construed in a particular way, different from their usual meaning. It is said that a question of law may arise when the issue is whether or not the facts fall within the statute ‘properly construed’ – the phrase Mason J used in Hope v Bathurst City Council (1980) 144 CLR 1.10 [31] It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.11 [32] There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that: ‘… it would 10 And see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395-6. 11 See, eg, Kent v Wilson [2000] VSC 98 per Hedigan J at [22]. -- 7 of 11 -- 8 be most unwise to lay down any general rule with regard to what is an exceptional case … . All these matters are matters of discretion’.12 [33] We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [34] This was, rather, a case in which the Tribunal was required to consider whether it was (in the words of former s 102(4), and now s 221(2) of the Commission Act) ‘… satisfied it is an exceptional case in which it would not be in the best interest of children’ for FGC’s positive notice to be continued. [35] In the context of statute law that is a challenging, but not an unusual task. As Gibbs J observed in Buck v Bavone,13 it is not uncommon for statutes to provide that a board or other authority shall or may take action if it is satisfied in the existence of certain matters specified in the statute; and, where the matter is one of opinion or policy … it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts … . [36] The cases discussed earlier establish that, when a statute apparently uses words according to their ordinary meaning, and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is a question of fact, not law. For these reasons, we think that the Commission’s first ground does not involve a question of law and it requires leave before it can proceed with an appeal on that ground. [37] The question whether or not leave to appeal should be granted is usually addressed according to established principles one of which is, we think, of particular importance here – is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?14 In the nature of cases like the present one, in which the legislation addresses a matter of considerable community importance – the protection of children – and there is a question whether the Tribunal has properly exercised its discretion, a question of general importance arises. [38] We did not understand FGC’s counsel to argue that ground 2 – that the Tribunal did not provide adequate reasons for its decision – was not a question of law. 12 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34], adopting the approach of Luxmore J in Perry and Browns Patterns (1993) 48 RPC 200. 13 (1976) 135 CLR 110 at 118-119. 14 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389. -- 8 of 11 -- 9 Ground One [39] It is said that the Tribunal misdirected itself as to the application of the test for an ‘exceptional case’ by placing inappropriate weight upon the evidence of Dr CI, and failing to provide adequate weight to the evidence of the nature and seriousness of FGC’s alleged conduct. [40] The Tribunal’s reasons comprise twelve pages in which the learned Members set out, in great detail, the background of the matter and, in particular, the incidents alleged to have occurred in 1981; the applicable legislation, and the test the Tribunal must apply under it; and, a very detailed review of the evidence of each of the witnesses. [41] Then, under the heading ‘Discussion of the Evidence’, the learned Members set out their analysis of the seriousness of the risk, and the likelihood of that risk arising. On the final page, under the heading ‘Balancing Risk and Protective Factors’ the Members refer to the decision of Philippides J in Maher and direct themselves to apply the test set out in that judgment – that is, to balance the risk factors against the protective factors. [42] There is no basis for suggesting that it was not open to the Tribunal to consider and, indeed, to accept the evidence of Dr CI. It is inescapable that the Tribunal did give proper, careful and detailed consideration to the question whether this was an exceptional case in which the best interests of children might be harmed if a positive notice issued. [43] In our respectful view the Tribunal properly directed itself to decide the matter on the merits, in accordance with the relevant statutory provisions. At paragraphs [22]-[29] it went so far as to conclude, in effect, that it should determine the question on the basis that the alleged conduct did occur and, therefore, ‘… that an assumed risk is present on the current facts …’.15 [44] The evidence of Dr CI was not rebutted, nor seriously challenged. It was accepted that he was eminent in his field, and both qualified and capable of holding and expressing the opinions he gave. It cannot be said, in those circumstances, that the learned Members placed inappropriate weight upon his evidence. [45] Nor, as the reasons show, did they fail to give adequate weight to the evidence about the nature and seriousness of the alleged misconduct of FGC: again, they went very close to determining the question which confronted them on the basis that the allegations were proven. It is difficult to see how they could have more stringently considered the investigative information. [46] Leave to appeal on ground one is refused. Ground Two: Adequacy of Reasons 15 FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 at [29]. -- 9 of 11 -- 10 [47] The QCAT Act requires the Tribunal to give reasons for its final decision.16 Those reasons need not be lengthy or elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and, the applicable law and the reasons for applying it in the way expressed in the decision.17 It has also been said, in Queensland, that the crucial requirement is for the Tribunal to give reasons which disclose what has been taken into account in a way that means that any error is revealed.18 [48] The Commissioner says, first, that the reasons fail to adequately address relevant risk factors including the nature and seriousness of FGC’s alleged conduct (in its totality); the significance of the breach of trust involved in the alleged offences; and, the relevance and impact of FGC’s failure to demonstrate insight, or remorse. [49] As to the first of these, paragraphs [3]-[5] and [23]-[29] of the decision make it clear that the Tribunal considered FGC’s alleged conduct in considerable detail. It also went on to describe them as being of a ‘grave nature’ ([74]-[76]). [50] As to the second assertion, it is wrong to say that the Tribunal did not address, or fully acknowledge, FGC’s position of trust and authority in relation to the complaints in 1981. Rather, the reasons specifically deal with those matters under the heading ‘Seriousness of the Risk’, and speak in terms suggesting those factors were given significant weight and must be taken into account in balancing risk and protective factors. [51] As to the third assertion – inadequate weight being given to FGC’s alleged lack of insight, or remorse – the reasons specifically record that the learned Members were unable to determine whether there was, in truth, remorse or insight on FGC’s part. It cannot be said, then, that they overlooked the matter. [52] It is also said that the reasons fail to demonstrate a logical reasoning process. The structure of the decision and the logical sequence of the headings in it (some of which we mentioned earlier) point to the opposite conclusion: that the process of reasoning was logical, and appropriate. The critical issue was identified – whether there was an unacceptable risk to children if a positive notice was issued – and explored in detail. Conclusion [53] Questions of weight were for the Tribunal to determine. In our view it did not fail in its task of identifying, acknowledging, and balancing the risk factors. It gave careful consideration to all of the relevant evidence about those factors and conducted an appropriate balancing exercise against protective factors. Having adopted the correct procedure, it then 16 Section 121. 17 Phu v NSW Department of Education and Training [2010] NSWADTAP 76 at [13]; and, see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 18 Hopper v Mt Isa Mines Ltd [1999] 2 Qd R 496 per Moynihan J at 512. -- 10 of 11 -- 11 exercised its discretion in a manner which was consistent with the legislation, and properly reflected the evidence, and the weight of evidence, before it. [54] We are, for these reasons, not persuaded that it made any error warranting an order that the decision be set aside. The appeal will be dismissed. Costs [55] At the conclusion of the hearing costs were reserved. If either party wishes to seek an order for costs it will file and serve written submissions within 14 days. If either or both parties file submissions, the other party will file and serve its submissions in response within 14 days thereafter. -- 11 of 11 --