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CMH v Director General Department of Justice and Attorney-General[2023] QCAT 63

CMH v Director General Department of Justice and Attorney-General[2023] QCAT 63

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CMH v Director General Department of Justice and Attorney-General  [2023] QCAT 63

PARTIES:

CMH

(applicant)

v

Director general department of Justice and attorney-general

(respondent)

APPLICATION NO/S:

CML146-21

MATTER TYPE:

Childrens’ matters

DELIVERED ON:

21 February 2023

HEARING DATE:

27 January 2023

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 11 January 2021, that the applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has disciplinary information – whether an exceptional case exists – application of factors in s 228 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 8, s 11, s 13, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66, s 99(2)(a)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 228, s 353, s 354, s 360

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

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Re TAA [2006] QCST 11

Queensland College of Teachers v CMH [2017] QCAT 401

Queensland College of Teachers v CMH [2018] QCAT 252

Queensland College of Teachers v CMH [2019] QCAT 282

APPEARANCES & REPRESENTATION:

Applicant:

CMH, self-represented

Respondent:

Davis, C, Legal officer, Blue Card services

REASONS FOR DECISION

  1. [1]
    CMH is a secondary school teacher. She held a working with children clearance and blue card which was suspended in February 2017, upon the Respondent becoming aware of a change in CMH’s disciplinary information, that information being suspension of her teacher registration by the Queensland College of Teachers (‘QCT’) in January 2017.
  2. [2]
    The Respondent reassessed CMH’s suitability for a blue card after her suspension was ended, and issued a negative notice on 11 January 2021.
  3. [3]
    In circumstances where disciplinary information about a person exists, the chief executive must issue a positive notice, unless the chief executive is satisfied the case is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act in its decision of 11 January 2021. CMH has sought review of this decision in the Tribunal.[2]
  4. [4]
    CMH is not a disqualified person and was granted an extension of time to file the application on 9 July 2021.

The Legislative framework

  1. [5]
    The purpose of a review in the Tribunal’s review jurisdiction is to produce the correct and preferable decision.[3] The Tribunal must conduct a fresh hearing on its merits. [4]
  2. [6]
    The decision under review was made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), and this enabling act applies to the review. Guiding this decision is the principle that that that the welfare and the best interests of a child are paramount.[5] The Tribunal must also be guided by the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’ [6]
  3. [7]
    Sections 221 and s 228 regulate the employment screening criteria where disciplinary information exists:

“The chief executive must issue a negative notice to the person if the chief executive—

  1. (a)
    is aware of relevant information about the person; and
  1. (b)
    is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.[7]
  1. [8]
    Disciplinary information, and investigative information arising from the conduct the subject of the disciplinary information, is ‘relevant information’ pursuant to the WWC Act,[8] in this case.
  2. [9]
    The term ‘exceptional case’ is not defined in the WWC Act.  Whether this case is an exceptional case is a question of fact and degree, to be decided in on a case-by-case basis having regard to:

...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 – children.[9]

Consideration of s 228(2) of the WWC Act

  1. [10]
    The Tribunal must have regard to the mandatory considerations relating to disciplinary information contained in s 228(2) of the WWC Act in determining whether an exceptional case exists:

S 228(2) The chief executive must have regard to the following matters in relation to the information—

…

  1. (b)
    if the chief executive is aware of disciplinary information about the person—
  1. (i)
    the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order; and
  1. (ii)
    any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in subparagraph (i), and the reasons for the decision or order;

…

  1. (e)
    the length of time that has passed since the event or conduct the subject of the information occurred;
  1. (f)
    the relevance of the information to employment, or carrying on a business, that involves or may involve children;
  1. (g)
    anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.

The decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order.

  1. [11]
    On 25 January 2017, the Queensland College of Teachers (‘QCT’) suspended CMH’s teacher registration on the basis that she posed an unacceptable risk of harm to children”[10] And this decision was communicated to CMH.[11]

Any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in subparagraph (i) , and the reasons for the decision or order;

  1. [12]
    The QCT’s suspension was considered by the Tribunal on three occasions.[12] The Tribunal lifted the suspension at the final disciplinary proceeding on 12 September 2019.[13]
  2. [13]
     On 4 October 2017, the Tribunal continued the initial suspension, finding CMH has not discharged the onus to satisfy the tribunal that she did not  pose an ‘Unacceptable risk of harm to children.[14] This 2017 decision was re-opened and set aside on 11 December 2017,[15] and since it was set aside by the Tribunal, it should not be considered a decision of the Tribunal relevant s 228 (2) considerations. Notably, the applicant was not in attendance at that hearing, and her evidence was not tested on that occasion.
  3. [14]
    The suspension was reconsidered afresh on 30 July 2018, and with the Tribunal determining that the suspension should be continued. 
  4. [15]
    On that occasion, the Tribunal found that CMH had not demonstrated insight and understanding of her professional obligations, had demonstrated favouritism, affecting the child’s reputation with her peers and the school which was a “significant harm for a year 9 and 10 student to endure”. The Tribunal said that the breach of standards had the potential to have a significant effect on the child’s psychological and emotional wellbeing. The Tribunal noted that CMH had not in her submissions acknowledged the harm to the student, and the Tribunal was not satisfied that she had developed insight into the risks that arose from the relationship and because of that lack of insight the risk of the likelihood of harm. 
  5. [16]
    On 12 September 2019, the Tribunal determined the disciplinary proceedings, finding grounds for the disciplinary action were made out, with CMH failing to meet the standard expected, but lifting the suspension that had been in place since January 2017. The QCT submitted that it was appropriate to end the suspension, CMH having served a longer period of suspension than had been initially sought by the QCT.
  6. [17]
    The Tribunal found that the following behaviour stated below did not satisfy the standard generally expected of a teacher: [16] (The relevant conduct at all times related to a 14-15 year old student identified as Student A.)
    1. (a)
      “Talking on the phone and arranging a meeting in the park after midnight; talking to the student about the student feeling suicidal;
    2. (b)
      Accepting a gift from Student A, allowing the student to attend her home and to attend a birthday party for CMH;
    3. (c)
      Allowing Student A to attend her residence and then driving her to sports training;
    4. (d)
      Attending a coffee shop with the student after school,
    5. (e)
      Attending sushi train with the student after training
    6. (f)
      Training alone with Student A at Mt Warning and Tallebudgera;
    7. (g)
      Taking Student A to a physiotherapy session and photographing her being massaged.
    8. (h)
      Sitting alone in a motor vehicle in the evening at 8:15pm discussing personal issues of the student (family and mental health);
    9. (i)
      Allowing Student A to attend her residence for several hours in the company of a teacher from another school on a Sunday after church lunch.
    10. (j)
      Failing to report Student A’s disclosures to her that she was experiencing suicidal ideation.
    11. (k)
      Giving gifts to Student A, including a Pandora bracelet (for Student A’s birthday), an imitation leather jacket and Typo brand pencil case.
  1. [18]
    The Tribunal acknowledged CMH’s youth at the time but also noted the age and vulnerability of Student A, the protracted nature of the conduct, and the failure of CMH to appropriately consider and act upon the mental health concerns of the student.[17]
  2. [19]
    In lifting the suspension, the Tribunal noted that, at the 30 July 2018 hearing, the Tribunal had found that CMH had not demonstrated the requisite insight, but that CMH had since sought professional assistance and now acknowledged that her conduct transgressed professional boundaries. The Tribunal found that CMH had recognised that her behaviour fell below the standard generally expected of a teacher. The Tribunal placed considerable weight on the report of clinical psychologist Dr DH, which is also in evidence in these current proceedings. Based on this evidence, The Tribunal accepted that there was “a positive indication of CMH’s changed attitude and deepening understanding of the range of issues which has led to her suspension.”[18]

Any other information - Investigative information

  1. [20]
    Investigative information before the Tribunal relates to the same conduct considered by the Tribunal in its disciplinary proceedings between the applicant and the Queensland College of Teachers. A police investigation was carried out from July to August 2016, interviewing Student A, and examining the student’s phone. [19]As a result of these investigations, the police did not lay any charges. The police records noted that in the interviewing officer’s view, Student A appeared to be trying to protect the applicant, and that her mobile phone had been reset.[20]
  2. [21]
    Information obtained in interview with Student A on 29 July 2016 indicated that the applicant and the student were friends on Instagram and communicated via text and telephone and noted that the applicant started attending the students church upon the student’s request. [21]
  3. [22]
    Investigations were also conducted by Education Department. The Ethical Standards unit made “no finding,”[22] with the investigation timeframes falling outside the two-year period permitted in disciplinary matters.

The length of time that has passed since the event or conduct the subject of the information occurred; 

  1. [23]
    It is not disputed that the relevant conduct occurred in 2015 and 2016 when CMH was a graduate teacher. In the seven years that have passed CMH has resumed employment as a teacher, undertaken professional development training and accreditation on professional boundaries and engaged in frequent and regular psychological input around the issues of professional boundaries.[23] The evidence indicates that CMH has utilised these seven years to develop competencies in student protection, being assessed as competent on 23 January 2020, 7 January 2021, 10 January 2022, through the Schools Core Compliance Training[24]. She submits that since returning to teaching following the 2019 decision, there have no complaints about her conduct, and there is no evidence before the Tribunal to indicate otherwise. CMH submits that this is because she has understood her transgressions, which she argues stemmed initially from her immaturity as a graduate teacher.

The relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children

  1. [24]
    The disciplinary information relates to the applicant’s behaviour while working as a teacher in a high school. The disciplinary information bares directly on her professional obligations toward children, in particular the applicant’s maintenance of professional boundaries with a child aged 14-15 who had vulnerabilities around her mental health.
  2. [25]
    The objects of the screening process under the WWC Act is to protect the welfare and best interests of children.  CMH’s behaviour and her understanding of her behaviour at the time of the conduct is concerning as it relates specifically to her ability to maintain boundaries and appropriate relationships with young people, and to respond appropriately to vulnerable young people. CMH was in a position of trust and responsibility, and act acted in breach of her professional duties.

Anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [26]
    Other considerations are discussed below.

The material and evidence

  1. [27]
    CMH provided the Tribunal with a life story and a statement of evidence attaching written statements from a treating psychologist, a colleague and teaching mentor, her husband, her brother-in-law, her friend. Further statements were also provided from a clinical psychologist, colleague and sister.CMH also provided written and oral submissions.
  2. [28]
    The respondent provided documents marked BCS 1-85, and NTP 1-458 which included information provided by the Queensland Police Service, documents relating to the Applicants disciplinary information, material produced under a notice to produce by the Queensland College of Teachers, and the Department of Education. CMH’s witnesses were cross examined by the respondent. The respondent also provided written and oral submissions.
  3. [29]
    CMH is now 31 years old. She completed her teaching qualification in 2014. From 2011-2014, she worked casually as a tutor at the school where the conduct occurred. She commenced as a full-time teacher in 2015, her graduate year of teaching at age 24. Her teaching registration was reinstated following the suspension for disciplinary action and she has worked in a high school for 3 years. She is current acting head of department during the incumbent’ long serve leave. She is married and about to commence a family. She attends church. CMH’s evidence is that Student A started attending the same church as her, she trusted and confided in her. She stated that Student A had obtained her phone number when it was mistakenly released to the rugby league team via a permission slip, and Student A began to communicate personal messages to her and messaged and called her one night saying she was having suicidal thoughts. She says she now recognises that she should have immediately reported this to appropriate staff including the school guidance counsellor. She stated that she now recognises that she has not been trained to handle such an issue and would report through the appropriate pathways. She reflects that she did not handle the situation appropriately. She reflects that she lacked maturity at the time as a first year teacher, aged 26, but that this has since been developed. She said she initially did not understand that her behaviour was wrong and this is reflected in the early material, but with psychological input and professional development now appreciates the inappropriateness of her conduct. Of the professional boundary breach, she recognises this as unprofessional. She gave evidence of having undertaken professional development training and 4 sessions with a clinical psychologist and has since developed and implemented strong boundaries with all students.[25] She states she has weekly contact with a clinical psychologist about professional issues. She submits that she is highly regarded within the school community having been promoted to act in the senior position of head of department. 
  4. [30]
    CMH denied any sexual or grooming behaviours were intended by her actions. She indicated that her actions were those of an inexperienced new teacher. She has developed mentors as a strategy to support her to review her thoughts and actions.[26] 
  5. [31]
    In oral evidence CMH reflected that at the time, of the conduct she did not think her conduct caused harm, that she had wanted to be a support person to the student, like an older sister, and she had thought she was helping her. She stated that as she reflects now, she thinks it may have caused the student to be “isolated” and “confused” by her behaviour. When elaborating on the harm caused by her conduct, she further clarified that the student may be confused because the friendship that had developed had disappeared, in circumstances where CMH had been a mentor-like figure for the student. She reflected that it was inappropriate breach of professional boundaries, and she believed that she had put in the strategies and knowledge to avoid this occurring.
  6. [32]
    The Respondent’s representative presented CMH with multiple scenarios involving her response to student behaviour that may lead to a boundary violation. Her responses to questions about social media invitations, and chance social encounters with students and former students, consistently reflected clear firm boundaries and appropriate referral pathways within the school community.
  7. [33]
    CMH indicated that she would decline to accept gifts from students, would not allow students to have her mobile number and would decline any social media invitations from students. She indicated that she maintains this approach in her current teaching role, and has had no concerns raised about her conduct since resuming teaching..
  8. [34]
    CMH told the Tribunal that she has put in place strategy of having senior teacher mentors, has regular compulsory refreshers of the Code of Conduct and undertaking professional development in Student protection and the Code of Ethics, which she has been assessed as competent in.

Witness Evidence

  1. [35]
    Psychologist KB told the Tribunal that he has been providing psychological services, seeing her on a weekly basis.[27]Although KB’s “psychological assessment” took the form of a reference rather than a report, his oral evidence indicated that he had regular engagement with CMH in a professional capacity, where, as they discuss scenarios relating a child in need, professional boundaries, and child protections issues.[28]  He expressed the view that through these discussions, he formed the opinion that CMH “could clearly identify where she had crossed the line, and how she has developed clear professional boundaries and processes around teacher student relationships. ” It is noted some of the content of his statement replicated the wording of Dr DH’s assessment of 20 November 2018.  The report was presented as a personal recommendation rather than psychological assessment and the Tribunal has less weight on this than what a formal assessment would have provided. 
  2. [36]
    DR DH, psychologist assessments[29] was unable to be tested due to the witnesses’ unavailability and less weight should be placed on this report for this reason. However, it is noted that it was heavily relied upon in the decision 2019 disciplinary outcome which lifted the suspension, enabling her to re-enter teaching. The reports reflect that: CMH had seen “herself as performing a mentor role of the students life that she believed came within the ambit of a teachers concerns.
  3. [37]
    In relation to the failure to report the student’s mental health concerns,

“(CMH) has recognised that she did not attend well to the need for teachers to maintain professional boundaries and not cross from professional support to intimate and secret supporting friend. She is also aware that schools have schools normally have staff designated to act as counsellors and she and the writer have discussed how she can maintain the trust of individual students without appearing to cross over the counsellor…”[30]

  1. [38]
    The report indicates DR DH’s view that CMH has developed awareness of fair and equitable treatment of students, the need for continual self- review, and the need for a mentorship with a senior teacher. 
  2. [39]
    An updated psychological assessment reflected Dr DH’s opinion that:

Dr DH was satisfied that CMH had addressed the following issues in a mature and serous manner, including being able to differentiate personal and professional relationships, awareness legal obligations of teachers, actively implementing personal and professional boundaries with individual students; to initiate realistic solutions for avoiding harm to students and was able to acknowledge the effect of an inappropriate relationships.[31]

  1. [40]
    DM had known CMH for 11 years. She worked with her at the school were the conduct occurred. She described herself as mentor, having been assigned in this role in CMH’s first year of teaching 2015. She stated that she had not personally observed the behaviours at the time or any inappropriate conduct. She had however been aware of the disciplinary proceedings. She expressed the view that she did not believe that CMH had acted inappropriately, however it was not evident that she been fully briefed in relation to all of the concerns that had been raised. She indicated that she was aware that CMH had been disciplined for failing to maintain appropriate boundaries and failing to report a disclosure from a student. She commented that at that school at that the time the conduct was alleged to have occurred, it was standard practice for teachers to drive student in their private cars at times and give students gifts, and that these practices were subsequently curtailed following the disciplinary action taken relating to CMH. She said that CMH has since told her that she recognises that she should have reported the student’s mental health concerns. She reflected that CMH had made progress since that time in understanding professional boundaries, realises the inappropriateness of over friendliness, and has learnt to ‘not cross the line’.
  2. [41]
    RD described herself as friend of CMH, who was involved in her life at the time of the conduct. She did not consider that the grounds for disciplinary action had been substantiated. She said she ‘saw someone desperate and tried to help her’ and that it was a ‘grey area’. She said she understood that she had not failed to report. The Tribunal places no weight on her evidence as she appeared to not appreciate the risks involved arising from CMH’s conduct and appeared not to have the accurate information relating to the concerns raised by the disciplinary proceedings. 
  3. [42]
    DD is CMH’s brother-in-law and had known her for 10 years. He has observed her with children, namely his own, at family BBQs and visits to his house, and describes her as positive, warm and caring person. He said he has never seen any behaviours that have concerned him. He was aware of the disciplinary proceedings but was unable to elaborate on them. He said he had no hesitation in supporting her to work with children.
  4. [43]
    MY is CMH’s husband. MY stated that he commenced a relationship with CMH around the time of the commencement of the disciplinary action and has supported her through these times that have ensued. He said that she has grown and matured in the 7 years since the conduct. He observes her interactions with children at the youth basketball teams that he coaches, and he believes that she is no risk to children.

Insight

  1. [44]
    The case of TAA refers to concerns that an absence of insight may increasing the risk of harm re-occurring.[32]
  2. [45]
    The Tribunal made findings about the insight that CMH had gained in the disciplinary proceedings in 2019, noting CMH had developed insight between 2017 and 2019. While the Tribunal found that disciplinary grounds existed, the Tribunal lifted the suspension on the basis that they saw as her now having the requite insight that she did not earlier possess, as a result of her professional development and counselling.  I do not deviate from that view.

Consideration

  1. [46]
    I am guided by the paramount principle of the welfare and best interest of the child[33] in determining this review.
  2. [47]
    I have accounted for the transferable nature of a blue card enabling holders to work with children in all contexts.
  3. [48]
    Insight is considered to be a protective factor, as noted the decision of in Re TAA:

“The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.”[34]

  1. [49]
    The respondent submitted that CMH indicated a developing insight but submits that CMH’s evidence did not fully demonstrate understanding of the impact of her conduct on others, and specifically that CMH had difficulty articulating the nature of the harm caused by her behaviour. It is my view that CMH articulated well the nature of harms around failing to report mental health concerns, and the isolation caused to a child though preferential treatment she demonstrated.
  2. [50]
    The Tribunal considered CMH had gained insight that she previously did not have when they ended the suspension in 2019. Although the test in disciplinary proceedings relates to an unacceptable risk of harm is a much different test to that of the welfare and best interests of children and the paramount consideration, the issue of insight has not affected by this varied test. The Tribunal’s finding in the disciplinary proceeding was based on psychological opinion, and that same evidence is before the Tribunal in this matter. So too is the evidence of the steps CMH has taken to develop this insight, and her verbal responses to scenarios put to her by the respondent. Nothing in her evidence gave the Tribunal concern that it would not be in the best interest of children for her to hold working with children clearance. 
  3. [51]
    The Tribunal finds that CMH has undertaken personal and professional development to deepen her understanding of her obligations and has developed strategies to ensure that the conduct is not repeated. She has regular ongoing engagement with a clinical psychologist around professional boundary scenarios and has senior mentors she consults with in the teaching profession. The Tribunal finds that CMH has developed insight into the serious consequences of the failure to maintain professional boundaries and report mental health concerns.
  4. [52]
    Consideration of risk and protective matters is accepted as appropriate in deciding whether a particular case is exceptional exists.[35] In this case, the evidence indicates that CMH has a strong support network active community participation across sporting and religious groups, a respected acting senior position within the high school. She has engaged mentor teacher to support her and has regular contact with a clinical psychologist where she is regularly tested with scenarios around boundary violations. There is no evidence of any disciplinary concerns since 2016, and notably she has been returned to teaching for 3 years. She has mandatory training in child protection issues as part of required competencies each year she must demonstrate each year. I accept that she has gained maturity and understanding in the 7 years that have passed since this conduct occurred. These are substantial protective factors which weigh heavily in her favour.
  5. [53]
    The risks to consider here are that the conduct was a breach of professional obligations in which she should have been trained and well acquainted with prior to practicing as a professional teacher.  The conduct occurred over a protracted period, with a vulnerable child in her care when she was entrusted to a position of responsibility. Her lack of appreciation of the risks of her behaviour and her obligations at that time is a risk factor. I consider however, that these risks have been reduced by the passage of time, where in there is evidence of maturity, and fully formed understanding of the inappropriateness of the behaviour. The risks are reduced, further by ongoing professional development requirements around child- protection and the code of ethics each year as part of her employment.
  6. [54]
    Having regard to the relevant considerations of the WWC Act, including the Tribunal’s 2019 findings in relation to her insight, and the risk and protective factors, on the balance of probabilities, the I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to CMH. The respondent’s decision that this is an exceptional case is set aside and the Tribunal substitutes the decision that the applicant’s case is not an exceptional case.
  7. [55]
    When acting as a public entity, as it is in this review, the Tribunal is required to make a decision which is compatible with human rights, and must give proper regard to any human rights affected by the decision.[36]  Human rights are ascribed to an individual. [37]Children’s rights to protection are preserved by operation of the principles of the WWC Act, which place children’s interests as a paramount consideration and their right to be cared for in a way that promotes their wellbeing and safety. The findings indicate that CMH has addressed her deficiencies in maintaining professional boundaries and responding to children’s mental health concerns that have previously caused concern that she may not protect the wellbeing of children. In making the decision to set aside the decision of the Respondent, the human rights of an individual have not been limited.  CMH’s rights to rights to equality before the law,[38] privacy and reputation,[39] to take part in public life[40] are not limited.

Non publication

  1. [56]
    Pursuant to s 66 of the QCAT Act, the Tribunal may make non-publication orders.  In the interests of justice,[41] the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child. Accordingly, these reasons have been de-identified.

Footnotes

[1]  WWC Act s 221(2), (3).

[2]  Application Filed 5 May 2021.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 19(a) s 20.

[4]QCAT Act s 20.

[5]WWC Act, s 6, s 360.

[6]WWC Act s 6.

[7]WWC Act s 221(2).

[8]WWC Act s 221(3).

[9]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

[10]  BCS 40, paragraph 2.

[11]  BCS 22.

[12]  24 October 2017, QCAT v CMH [2017] QCAT 401; 30 July 2018, QCT v CMH [2018] QCAT 252,

[13]QCT v CMH [2019] QCAT 282, BCS 39.

[14]Queensland College of Teachers v CMH [2017] 401; BCS 40.

[15]Queensland College of Teachers v CMH [2018] QCAT 252, paragraph 4.

[16]  Ibid paragraph 36; BCS 43.

[17]  Ibid, paragraph 56.

[18]Queensland College of Teachers v CMH [2019] 282, paragraph 41, BCS 44.

[19]  NTP42.

[20]  NTP 414.

[21]  NTP 414.

[22]  NTP 13.

[23]  Applicant’s Oral submission, Annexure 9 Affidavit Statement of Evidence, 10 May 2022; Statement of KB dated 2 November 2022.

[24]  Applicant’s Statement of Evidence, Annexure 9

[25]  Applicant’s Life Story.

[26]  Oral evidence of CMH at hearing.

[27]  Oral evidence KB, hearing.

[28]  KB Witness statement, 8 November 2022.

[29]  Applicant Statement of Evidence. Annexure 6, 7.

[30]  Ibid, Annexure 6.

[31]  Ibid Annexure 7.

[32]Re TAA [2006] QCST 11, [97.]

[33]WWC Act, s 360.

[34]Re TAA [2006] QCST 11

[35]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

[36] Human Rights Act 2019 (Qld), s 58.

[37]Human Rights Act 2019 (Qld), s 11(2).

[38] Ibid s 15.

[39] Ibid s 25.

[40] Ibid s 23.

[41] s 66(2)(e) QCAT Act 2009 (Qld); s 66(3).

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Editorial Notes

  • Published Case Name:

    CMH v Director General Department of Justice and Attorney-General

  • Shortened Case Name:

    CMH v Director General Department of Justice and Attorney-General

  • MNC:

    [2023] QCAT 63

  • Court:

    QCAT

  • Judge(s):

    Member McDonald

  • Date:

    21 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
1 citation
Jump To
Cite 1 - [2011] QCATA 28
Queensland College of Teachers v CMH [2018] QCAT 252
3 citations
Jump To
Cite 1 - [2018] QCAT 252
Cite 2 - [2018] QCAT 252
Cite 3 - [2018] QCAT 252
Queensland College of Teachers v CMH [2017] QCAT 401
2 citations
Jump To
Cite 1 - [2017] QCAT 401
Cite 2 - [2017] QCAT 401
Queensland College of Teachers v CMH [2019] QCAT 282
2 citations
Jump To
Cite 1 - [2019] QCAT 282
Cite 2 - [2019] QCAT 282
Re TAA (2006) QCST 11
3 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Cite 3 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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