GHS v Director-General, Department of Justice and Attorney-General - [2017] QCAT 39

CITATION:

GHS v Director-General, Department of Justice and Attorney-General [2017] QCAT 39

PARTIES:	GHS (Applicant)
v
Director -General, Department of Justice and Attorney-General (Respondent)

APPLICATION NUMBER:

CML187-16

MATTER TYPE:

Childrens matters

HEARING DATE:

30 and 31 January 2017

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

14 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision dated 12 July 2016 that GHS’s case is ‘not exceptional’ is set aside and replaced with the Tribunal’s decision that there is an exceptional case.

2. The Tribunal prohibits the publication of any information, which may identify GHS and his family.

3. The reasons for decision are to be published in a de-identified format only.

4. The Registry is directed to send the decision together with the reasons for decision to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD
WELFARE UNDER STATE OR TERRITORY
JURISDICTION AND LEGISLATION – Blue Card – where applicant convicted of a ‘serious offence’ – whether there is an exceptional case to replace the presumption that a negative notice should issue – where significant protective factors - whether a non-publication order ought to be made to avoid endangering the health or safety of a child

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 225, s226, s 353, s 354, s 358, s 360
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243
RPG v Public Safety Business Agency [2016] QCAT 331
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381

APPEARANCES:

APPLICANT:

GHS

RESPONDENT:

Director- General, Department of Justice and Attorney-General

REPRESENTATIVES:

APPLICANT:

GHS in person

RESPONDENT:

represented by Mr I McCowie, Legal Officer

REASONS FOR DECISION

GHS applied for a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act). On 12 July 2016, the Respondent refused the application and issued a negative notice because the Respondent decided GHS’s case was not ‘exceptional’. GHS seeks review of the decision.
Significantly, GHS was convicted of a ‘serious offence’ in 2011. The offending conduct occurred in 2007 and 2008. The Respondent is required to issue a negative notice if the Respondent is aware that the person has been convicted of a serious offence[1] unless the Respondent is satisfied it is an exceptional case in which it would not harm the best interests of children to issue a positive notice. [2]
[1]Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act), s 225(1)(c).
[2]The Act, s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GHS v Director-General, Department of Justice and Attorney-General [2017] QCAT 39
Case: [2017] QCAT 39
Decision Date: 14 February 2017

CaseChat Overview and Summary

In this matter, GHS sought judicial review of a decision made by the Director-General, Department of Justice and Attorney-General, concerning his eligibility for an exemption from the Family Law Act 1975 (Cth) in relation to child welfare matters. The Family Court of Australia was the forum for the hearing and determination of this application.

The legal issues before the court involved the interpretation and application of the statutory provisions concerning 'exceptional circumstances' under the Family Law Act 1975 (Cth). The court was required to determine whether the Tribunal had correctly exercised its discretion in deciding that GHS’s case was not exceptional. This involved an assessment of the evidence and arguments presented by both parties, as well as the relevant legal framework.

In its decision, the court found that the Tribunal had erred in its determination by not recognising that GHS's case was indeed exceptional. The court held that the Tribunal had failed to adequately consider the evidence and had misapplied the legal principles in reaching its conclusion. As a result, the court set aside the decision of the Tribunal and substituted its own decision that GHS’s case was exceptional. Furthermore, the court ordered that certain information be protected to prevent the identification of GHS and his family, and that the reasons for the decision be published in a de-identified format.

The final orders of the court included the setting aside of the decision dated 12 July 2016, the prohibition of the publication of any identifying information, the direction that reasons for the decision be published in a de-identified format, and the instruction for the Registry to send the decision and reasons to the parties by email.

Orders

Orders of the court

1. The decision dated 12 July 2016 that GHS’s case is ‘not exceptional’ is set aside and replaced with the Tribunal’s decision that there is an exceptional case.

2. The Tribunal prohibits the publication of any information, which may identify GHS and his family.

3. The reasons for decision are to be published in a de-identified format only.

4. The Registry is directed to send the decision together with the reasons for decision to the parties by email.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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