WJM v Commission for Children Young People and Child Guardian - [2012] QCAT 455

CITATION:		WJM v Commission for Children Young People and Child Guardian [2012] QCAT 455
PARTIES:	WJM v Commission for Children Young People and Child Guardian

APPLICATION NUMBER:

CML134-11

MATTER TYPE:

Childrens matters

HEARING DATE:

16 and 17 August ,14 September 2012

HEARD AT:

A regional city

DECISION OF:

Louise McDonald, Presiding Member
Gwenn Murray, Member

DELIVERED ON:

21 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the decision of the Commissioner to issue the Applicant with a negative notice is set aside.

2. That the Commissioner is to issue a positive notice and blue card to the Applicant.

3. The Tribunal prohibits the publication of the photographs of the child complainant, the name of the child complainant, name of the applicant and the names of the witnesses.

CATCHWORDS:

Review Jurisdiction – Blue card – conviction other than serious offence – whether exceptional case exists

APPEARANCES and REPRESENTATION:

APPLICANT:

G Visini of Power and Cartright Solicitors for the Applicant

RESPONDENT:

G Thomas for the Respondent, with Murray Briggs, assisting

REASONS FOR DECISION

Background

WJM was convicted of assault occasioning bodily harm of a 13 year old boy who lived on the Applicant’s rural property. The child was the son of sharefarmers who worked his dairy farm, and performed occasional work for the Applicant. The child was engaged in employment related work at the time of the incident.

When the Applicant applied for a Blue Card the Commissioner for Children Young People and Child Guardian, having regard to this offence, issued a negative notice on 1 June 2011 on the basis that exceptional case existed in which it would not be in the best interest of children to issue a blue card. The Applicant filed an application for review of a decision of the Commissioner to issue a negative notice for a blue card.
An oral hearing was held on 16 and 17 August 2012. Further submissions were sought from the parties and a final hearing on the papers was held on 14 September 2012.

The Commissioner sought a non publication order of photos submitted by the Applicant’s legal representative which would reveal the identity of the child.

Relevant Law

The Commission for Children Young People and Child Guardian Act 2000 (the CCYPCG Act) as well as the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) form the statutory basis for the Tribunal’s process and decision. The Tribunal is empowered by s 24 of the QCAT Act to confirm, amend, or set aside a decision and substitute its own decision, or set aside the decision and return it to the decision maker for matters falling within its review jurisdiction.

Pursuant to s 6(1) CCYPCG Act, the paramount consideration in employment screening decisions in this jurisdiction is the welfare and best interests of children.

The offence for which the applicant was convicted is not a serious offence within the meaning of the CCYPCG Act. The issue for determination is whether an exceptional case exists where it is not in the interests of children to issue a blue card.

221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1) Subject to subsection (2), the commissioner must issue a positive notice to the person if— ...
(c) The commissioner is aware of a conviction of the person for an offence other than a serious offence.

(2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person.

Exceptional case is not defined in the CCYPCG Act, but in exercising the discretion regard must be had to the factors in s 226 CCYPCG Act.
226 Deciding exceptional case if conviction or charge
(1) This section applies if the commissioner—
(a) Is deciding whether or not there is an exceptional case for the person; and
(b) is aware that the person has been convicted of, or charged with, an offence.
(2) The commissioner must have regard to the following—
(a) in relation to the commission, or alleged commission, of an offence by the person—
(i) whether it is a conviction or a charge; and
(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii) when the offence was committed or is alleged to have been committed; and
(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court's reasons for its decision;
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person's mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 or 338;
(e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.

Case law confirms that what constitutes an exceptional case is determined on as a matter of discretion considering the merits of each case (Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492).In the Supreme Court, Philippides J has said that “it would be most unwise to lay down any general rule with regard to what is an exceptional case….All these matters are matters of discretion.”[1] The circumstances must be, “forming an exception, out of the enduring cause, unusual, special” (Sherwin v Equal Opportunity Board (1992) VR 279 at 287-288).
[1]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.

For an exceptional case to exist it must “take it out and beyond the ordinary circumstances of what is expected to occur” (In the marriage of Sandrk (1991) FLR 394 at 399).

The Evidence

The conviction for assault occasioning bodily harm committed in 2008 is the only offence noted in the Applicant’s criminal history.

The Applicant gave evidence that the offence did not occur as stated in the Queensland Police brief to the Court (QP9), but in a version of events he asked the Tribunal to consider.
The Court Brief (QP9) which was before the Magistrate in determining the sentence for the plea of guilty to assault occasioning bodily harm stated that that he had grabbed the 13 year old boy around the throat, punched the child two times on the right jaw, lifted him from the ground and pushed him into steel rails while holding him by the throat, squeezed his throat and dropped him to the ground. He then picked him up by the throat and lifted him from the ground and said “if you ever yell at me again I will kill you” and dropped him again.
The Applicant stated he pled guilty to avoid further costs and to also avoid having put the child through the trauma of a court hearing. He protested that he had accepted this version of the facts upon legal advice.
The Applicant presented the Tribunal initially with an account of the event which suggested that he had not punched the child, but had merely held him by the neck and pushed him whereupon he fell and he had picked him up off the ground. He said he did not pick him up by the throat. He claimed the child had verbally challenged him when directed to wash the mud and cow faeces off the cow’s teats while milking, swearing defiantly at the applicant some 6 inches from his face. Later, during cross examination he was referred to a statement he had provided dated 5 August 2008, he agreed that he had also picked the child up by the “scruff of the neck”, given him a “clip around the ear” and held him against the pit wall. He clarified that the pit wall was only 3 feet tall.
He gave evidence that he did not think this action was considered reasonable in “today’s society” but that he had grown up in a time and place where this was acceptable. He indicated he valued the importance of respecting elders. He stated that at the time he felt something “snapped”, and the blood rushed to his head, shortly after the incident he stated that he felt sick in the stomach and shaky for what he had done. He reflected upon the incident in the following terms: “there were reasons on the home front that caused the boy to have a bad attitude and I accept that, I shouldn’t have reacted and pushed him….I was very very regretful – as an adult I should have known better.”
He indicated “It was someone else’s child – my parents would have given permission to other adults to hit me if I got out of line. It was where and when I grew up. I crossed the boundary. Society has changed. Denying that the child deserved a clip, he clarified: “No, I’m not saying that, today’s society doesn’t accept me or anyone else doing this – this is abuse”.
He noted that the child looked to him to be terrified, which he determined by the look on his face. He indicated that he had played the incident back in his mind over and over. He did not consider that there would be any long terms effects on the child, describing him as a robust child, who he has seen in the community subsequently and does not appear to be troubled by the event. The applicant noted that three weeks later the child’s brother had approached him seeking work, and considered that this supported his view that there was no long term effect of the assault to the child.
He stated that on the evening of the event he wanted to apologise to the child but was given legal advice not to speak with the family as the police had been called.
The Applicant explained some of the circumstances surrounding the incident. He stated that the child had been the son of the share farmer who milked the Applicant’s cows for him. He had ongoing dealings with the child who lived on the same property for several years as him and earned pocket money for picking beans. He described him as “a good little worker”. The child had milked the cows for three years and was aware of how to milk correctly, and the importance of a clean teat to avoid contamination of the milk. He claimed the child was just being rebellious in refusing to clean the teat. He explained to the Tribunal that should bacteria in the mud go into milk, this would result in major economic loss for him, including the non payment of supply of the milk, loss of his contract with the company he was supplying, a fine for contaminating other farmers’ milk collected and a bill for the silo that was infected. He said that he was more angry that the child wouldn’t listen to him about and refused to clean the teats than the fact that the child had “back chatted him”. He claimed that they had previously “fooled around” with “boys play” such as throwing beans, and he had never lost his temper with the child in the past, despite the boy having a challenging nature, evidenced he thought by his expulsion from school.

The Applicant indicated that the child’s father who usually milked the cows, he run away shortly before the incident with a 16 year old trainee employee of his, and that the Applicant was not happy about that. He stated that the child’s father had gone to Warwick with mates and was drunk and left the boy in charge of work on the farm and the boy was unhappy about it. He acknowledged that the child was experiencing a breakdown of his family unit. He described the child’s circumstances as difficult and strained and that both families were experiencing unusual stress.
The Applicant gave evidence that this event occurred at a particularly stressful period in his life when there were multiple financial pressures upon him, and his farm was experiencing difficulties. He described things in his life at the time as “being out of control”. Just prior to the incident he had commenced seeing his General Practitioner Dr M, for depression and anxiety and had previously been prescribed medication. He indicated that as a result of the incident he considered he needed to gain further treatment from his GP and attended upon him immediately following the incident. He indicated that Dr M did not refer him for counselling, nor did his probation officers, and had that occurred he would have engaged accordingly. There is no indication that the Applicant was other than compliant with probation conditions.
He indicated that were he to be in such stressful circumstances in the future, he would seek treatment from a professional or doctor to assist him to regain control over his life “before things got out of hand”. He considered if presented with a trigger for anger such as occurred in the incident he would now “turn on his heels and walk away.” The Applicant told the Tribunal he was in a completely different situation now than he was at the time of the event with the boy. He said he is now a father, not suffering from depression and the farm is not experiencing the same economic losses. He was adamant that he did not want to “go down that path again” referring to the assault and noted that his wife chastises him for “being too soft” in not disciplining his children.
The Applicant gave a short summary of his background. He indicated that he was a third generation dairy farmer, who finished school at 15. The farm also runs small crops. He was previously married and divorced with no children to the previous marriage. He has remarried and describes his current circumstances as being “in a wonderful spot” at the moment. He has two children to his wife, a toddler aged 2 years and baby aged 4 months. He cites a strong financial position, and prosperous business activity. He indicated he is involved in business and industry networks. He claims he is no longer receiving treatment for depression and considers that the issues have largely resolved given the change to the aspects of his life. He says he is a passionate farmer and enjoys fishing, crabbing and camping as recreational pursuits.

Applicant’s Witnesses

AC stated that he had known the Applicant all of his life through personal and business transactions. He indicated that he is confident to leave his 4 and 7 year old boys with the Applicant to milk the cows with him, and does so on a regular basis. He did not indicate that he had an understanding of the facts forming the basis of the conviction but rather stated that the Applicant had grabbed and pushed the child against a wall. He indicated that he considered this was acceptable behaviour in the industry in which he had worked, and considered the issue had been blown out of proportion. He stated that he had never seen the Applicant physically discipline a child.

SW indicated that he did not have a lot of information about the assault but was aware a young teenager was involved. He knew a push occurred but was not aware of any more details. Based on the information he held he thought it had been an unwarranted charge. He indicated that as the Applicant is his cousin with a close life long relationship, he knew the Applicant well and it was out of character for him to react as he did, having never seen him show anger or lose control.
He indicated he sees the Applicant approximately three or four times a year, and that they grew up together and he now lives in Yeppoon.
PB described a professional and industry based relationship between him and the Applicant which has stood for 30 years. He indicated that the Applicant did not give details around the specifics of the assault, but that he had confided in him that he had reacted to a comment of the child, felt ashamed and was not proud of himself. PB indicated that the Applicant had confided in him in a meeting. He stated that he had known him since the Applicant was in high school and never known of any other incidents, despite having a lot to do with him. He stated that he had observed the Applicant in non-child-related-contexts only, but had noted him to be calm and never volatile, although he was vocal about opinions. He considered the incident was out of character.
Dr M is dually qualified as a general practitioner and physiotherapist, with 25 years experience as a GP and stated that he had been the Applicant’s doctor for 15-20 years. He claimed he knew the Applicant well, not in a social sense, but had a longstanding professional relationship with him in a small regional community. Dr M gave evidence without the benefit of his notes, having changed clinics recently. He described the Applicant as having a ten year history of anxiety and depressed mood, detailing this as having been a moderate depression. He had been treating the Applicant for depression in 2008 with antidepressants. He described the Applicant being under “extreme pressure” at the time of the incident and considered that the event was aggravated by the stress he was under. He described this as more stress than what was normal for him. He confirmed that he saw the Applicant on the day immediately following the incident. He was aware that the Applicant had physical contact with a minor and “scruffed a young fellow.” He indicated that he explored anger control issues with the Applicant and was happy to organise anger management if the court ultimately required this. He stated that it was not a recurring pattern of behaviour and he described the Applicant as very remorseful about the incident, expressing feelings that he should not have done it, and this had been a big part of what he told him. The Applicant spoke to Dr M of how he saw his behaviour as inappropriate. Of his own accord, the Applicant consulted Dr M for treatment to manage his emotions as a result of the incident prior to police action being initiated. He was of the view that the Applicant would be a good mentor to young people for the knowledge of farming he held.

Dr M based his views on knowledge of the Applicant and his parents over 20 years, and his “life experience” based on knowing the Applicant consistently over that period.

Submissions

The Respondent submits that the nature of the offence and its relevance to carrying on employment that may involve children is the critical factor. The assaults were a number of applications of force and occurred in a context of significant disparity of age and power. They Respondent characterises the event as a breach of the Applicant’s position of trust, power and authority. The Respondent argues his minimising the events by providing a less serious account of events than his written account on the date of the incident, suggests he lacks insight into the harm caused and is therefore exposed to risk of reoffending.

They Respondent submits that the 12 month probation period imposed reflected a need for ongoing monitoring.
The Respondent suggested that the relative age differential, the physically unprovoked and disproportionate nature of the attack was a risk factor.
The Respondent submitted that Dr M’s evidence should be given little weight because he was not sufficiently qualified to provide an expert opinion on risk of reoffending, and should be accepted as character evidence only. Further that little weight should be given to the evidence of AC because he diminished the seriousness of the offence.
The Applicant submits in summary that, the incident was a one off out of character offence that occurred at a time of extreme stress, and his witnesses support this. The Applicant has taken steps to manage issues leading to his reaction in the incident through gaining treatment from Dr M. He submits that the protective factors outweigh the risk factors where he has shown remorse, has no subsequent history of aggression, and has been treated successfully for anxiety and depression. He submits he is in a stable relationship with a young family operating three successful businesses.

Discussion of the Evidence

The Tribunal must consider the s 226 prescribed factors in exercising its discretion to determine whether an exceptional case exists. On the facts, there is a conviction for an offence that is not characterised as a serious offence within the meaning of the CCYPCG Act. It was committed 4 years ago when the Applicant was a mature aged man in his late thirties. The offence relates specifically to a 13 year old child in a workplace which, the tribunal accepts is likely to have caused physical and emotional harm to the child. Although the Applicant disputes the extent of harm involved, irrespective of the nature of the harm, the Tribunal concurs with the sentencing Magistrate’s comments that this is a poor example of conflict resolution and self control.

The assaults, on any account, occurred in a workplace where the child was working for the Applicant. That the offence occurred in a relationship with significant disparity of power, size and age, and where the Applicant had authority over the child’s economic and residential circumstances, deeply concerns the Tribunal. Similarly that the events occurred in a context where the child was extremely vulnerable given the circumstances around family breakdown, and despite this the Applicant demonstrated in this instance an absence of self control is also of concern. The Tribunal accepts the Applicant’s acknowledgement that this behaviour was unacceptable, and that he as an adult should have had more control.
The Applicant’s descriptions of the events to the Tribunal were not consistent with the plea of guilty and the basis of the conviction. The Tribunal is bound to accept that events which formed the basis of this plea are those in the court brief before the sentencing Magistrate, and cannot go behind the conviction (Minister for Immigration Ethnic Affairs v Gungor [1982] FCA 99).
However, the Tribunal found the Applicant’s description of the events in the incident useful in providing a picture of his reflections on the event, relevant to insight and remorse, and his explanation of the contextual circumstances as relevant to consideration of whether an exceptional case exists.
The Tribunal accepts the Respondent’s submissions that the Applicant has minimised the offence by presenting a less serious version, limiting his actions to pushing the child in his evidence to the Tribunal which contradicted his written statement of 5 August 2008. However the Tribunal does not accept the Respondent’s submission that he has demonstrated an absence of insight by minimising events of the assault. The Tribunal considers that he has otherwise demonstrated insight by understanding the emotional reaction of fear generated in the child, observing this expression, ruminating upon it, and communicating remorse for it in confiding with trusted senior confidents. The Tribunal considers that there is evidence of insight into the harm caused and the inappropriateness of his behaviour to avoid further incidents. The Tribunal is also satisfied that the Applicant’s evidence and that of PB and Dr M suggests that he holds remorse for the incident, and its impact upon the child.
Notwithstanding the nature of this offence, the evidence does suggest it is out of character and occurred at a time of extreme stress, has not been repeated and the Applicant has no history of violence, aggression or other offences. Character witnesses endorse the Applicant’s involvement with children as being a positive role model outside of this one off incident. Each of the witnesses claimed they unreservedly trust the Applicant with their children and do this on a regular basis. The Tribunal notes that this is the only conviction in the Applicant’s criminal history. The Applicant stated that this event occurred at a time of significant stress as a result of personal and financial factors. His evidence was that the child’s refusal to clean the cows’ teats could have significantly affected the Applicant’s livelihood and caused economic loss to other farms and caused illness to those who consumed the milk. This appeared to heighten the Applicant’s already stressful state. The Applicant stated that he was receiving treatment for depression and anxiety at the time. He immediately sought treatment from his long time general practitioner, on the date of the incident, seeking adjustment of his treatment following the incident.
In the case of ASX [2012] QCAT 192 the Tribunal found that a mother who had assaulted her twin daughters in an isolated incident, generating a conviction for assault occasioning bodily harm occurred. The Tribunal found it “occurred at a time of abnormally high stress in her life” and was “somewhat of an aberration in an otherwise lengthy satisfactory history.” The same can be said of the Applicant in the current circumstances.
The Tribunal notes that there were unusual stressors upon the Applicant at the time of the offence, but is concerned that should these stressors reoccur at some later time that he has addressed underlying issues. The Tribunal notes that the sentencing Magistrate imposed probation to enable him to do so but for some reason this was never affected. He was nonetheless compliant with his probation terms for that period and continued to see his general practitioner to address issues related to anxiety and depression which Dr M indicated fed into the incident and were aggravated by extreme stressors, beyond what was usual for him.
The Tribunal was without the benefit of a psychologist report or professional risk assessment. However, Dr M's evidence is valuable as character evidence, but the Tribunal does not accept that the value of his evidence is limited to this. While he is not qualified to give a risk assessment based on life experience, he has nonetheless been the Applicant’s key mental health practitioner and is in a position to comment on the impact of his condition upon the incident, the link and his progress. He made a very clear statement that in his opinion he would be unlikely to repeat this behaviour. The Tribunal accepts this medical evidence from his treating practitioner as an indicator of the witness’s knowledge of the specific presentation of the Applicant around the time of the offence and his knowledge of his progress in response to treatment.
The Tribunal accepts the Respondent’s submission regarding AC’s evidence and has placed little weight on this on the basis that his views suggested that aggressive behaviour to children in the workplace was acceptable behaviour, and that he diminished the serious nature of the incident involving a child.
The character evidence of other witnesses consistently suggested that in their view, this conduct was an out of character incident, and to their knowledge had been an isolated nature, and that the Applicant is not an aggressive person by nature. There had been no repeat of this or similar behaviour. PB and Dr M’s evidence indicated that the Applicant had been genuinely remorseful and carried emotions of guilt about his actions. Despite this shame he acknowledged his actions without any necessity to do so to these two respected people in his life.
Ultimately while the Tribunal accepts the Respondent’s submission that the nature of the offence is a critical factor, but that it is not conclusive in light of the weight of evidence clearly indicating remorse and partial insight, and the isolated nature of the incident.
The Tribunal must also consider under s 226 the penalty and the reasons it was imposed. The Magistrate ordered a fine of $750 with 12 months probation and no conviction recorded. She ordered parole period in order that he have time to address through parole, underlying issues to minimise the risk that this did not occur again. She indicated that she could not order him to attend his GP, and also that the GP may not be able to address these issues. It was her clear intention that he would attend anger management or other courses to assist him to manage his anxiety to be organised through probation. Although he was compliant with probation this did not occur. The Applicant told the Tribunal that he was willing to take advice from those who knew better than him, as evidenced when he took legal advice not to approach the child and apologise although he said he very much wanted to do this. Similarly the Applicant took advice from Dr M. The Applicant said he personally did not think he needed further counselling to what Dr M had provided him and that Dr M did not refer him to a psychologist and was happy with his progress.
The Tribunal has formed a view that the Applicant has nonetheless addressed issues by having treatment for his condition. There is no requirement from his GP to attend further courses or counselling, although he acknowledges in general terms they would be of benefit.
The Tribunal refers to the Commission for Children and Young People and Child Guardian v Maher [2004] QCA 492 where the Court of Appeal endorsed the approach of weighing the risk and protective factors in exercising the discretion to determine whether an exceptional case exists.

Risk Factors

It is noted that the Applicant has not undertaken the courses envisioned by the Magistrate in her rationale for probation. As such there are questions about whether the underlying causes have been addressed and whether he may “snap” again in times of high stress. Such work was intended to minimise the risk of another incident. There was however no requirement by his probation officers to complete such courses, although some preliminary discussions occurred about this. The Tribunal cannot be completely satisfied that a similar period of extreme stress in the future may trigger another incident. However as he has sought treatment through his general practitioner in part for managing the stress he was under and identified a need for immediate treatment, the Tribunal accepts that there is a willingness to pursue treatment when it is needed. He demonstrates sufficient insight and remorse to avoid further instances.

The Tribunal notes that the Applicant maintains that different events constituted the offence than to which he pleaded, and while the Tribunal cannot go behind the facts forming the basis of the sentence, accepts that the Applicant may hold a different view of the need for anger management where different facts may form the basis of his view.
The Applicant acknowledged growing up in a culture where a scruff and clip were acceptable when a youth demonstrated disrespect to an elder. His peers also endorsed the acceptability of this approach in workplace content with young boys. The Tribunal views this as a risk factor, however, views the Applicant’s clear acknowledgement of the inappropriate and ‘abusive’ nature of this conduct and its unacceptability as a protective factor.
The Applicant’s age at the time of the offence was mature aged and his actions cannot be dismissed as youthful hot-headedness. He would be imputed with the maturity and self control to manage himself, but in the context of his stressful situation has lost control.

Protective Factors

The Tribunal has formed the view that the evidence suggests the Applicant has consistently demonstrated remorse in his actions, and communications with trusted senior confidantes about this offence. He indicated a willingness to apologise but was given legal advice not to do this.

Similarly the Respondent’s view that he lacks insight is rejected in light of overwhelming evidence that he was aware of the fear in the child afterward, they were both shaking, and he consistently acknowledged the inappropriateness of his actions. He immediately regretted his actions, and sought to apologise but was thwarted in this action on legal advice. He acknowledged his actions “crossed the line.”
The Tribunal notes there has been some diminishing of the events in the Applicant’s initial account to the Tribunal and therefore the depth of that insight may be arguable. Specifically he may lack insight into the power differential or the nature of the harm caused, but nonetheless the Tribunal is of the view that he had insight into his actions and strongly regretted them, and the impact on the child.
The Tribunal notes a significant stability in his life, a stable relationship and family life.
He is well integrated in the community through his business and industry networks.
Character evidence suggests he is not aggressive in nature and has no other incidents of conduct like this toward adults or children. He has had no subsequent aggressive incidents.
The Tribunal concludes that the balance of the evidence suggests that the protective factors outweigh the risk factors, despite the nature of the offence being directly related to a child in a workplace. The Tribunal finds no exceptional case exists.
The Tribunal sets aside the decision of the Commission of 1 June 2011 to issue a negative notice and substitutes the decision that a positive notice issue.

Non-publication Order

The Respondent seeks a non-publication order pursuant to section 66 of the QCAT ACT, prohibiting publication of the photos of the child, name of the child and any information that would enable the child to be identified. It submitted that it was both confidential information and not in the interests of justice that this information be made publicly available.

The Tribunal accepts the photos of the child are confidential information. The Tribunal is of the view that the child’s name or other details which would identify the child should be protected. Further, the Tribunal considers given the nature and name of the regional community and the disclosure of the Applicant’s and witnesses’ names may also inadvertently expose the child’s identity and therefore shall not be subject to publication. The Tribunal has had regard for the principal of open justice, but is required to apply the principle of the welfare of the child is paramount in this determination.

The Tribunal grants a non-publication order which prohibits the publication of the names of the Applicant, and the child, photographs of the child and the names of the witnesses. The reasons will be published in a de-identified format.