AYU v The Children's Guardian

[2021] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

AYU v The Children’s Guardian [2021] NSWCATAD 48

Hearing dates:

17 November 2020 and 23 December 2020

Date of orders:

4 March 2021

Decision date:

04 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
Emeritus Professor P J Foreman AM, General Member

Decision:

(1) The decision of the Children’s Guardian dated 27 September 2019 to refuse to grant the applicant a working with children check clearance is set aside.

(2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in 2002 for manslaughter.

(3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW — Application for enabling order under section 28 of Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

ASIC v Rich [2005] NSWSC 149

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BKE v Office of Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

Category:

Principal judgment

Parties:

AYU (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
V Hartstein (Respondent)

Solicitors:
Nicholas Graham Lawton, Priest Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/341730

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant is a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 (the Act), having been convicted in 2002 of the manslaughter of her child. The applicant seeks administrative review of a decision of the respondent made on 27 September 2019 to not grant a working with children check clearance and seeks an enabling order pursuant to s 28(1) of the Act, declaring that she is not to be treated as a disqualified person for the purposes of that Act in respect of her 2002 conviction.

2. If granted, an enabling order is not made subject to conditions (refer to s 28(7) of the Act) and the applicant will be granted a working with children check clearance to work in “child-related work” as defined in s 6 of the Act.

3. The applicant has previously applied for an enabling order on 29 July 2013 to the former Administrative Decisions Tribunal: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69. That application was refused on the ground that the applicant had not addressed her long history of passive acceptance (refer to paragraph 81 of AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69) and had not discharged her onus under s 28(7) of the Act to prove to the contrary that she posed a risk to the safety of children.

4. The applicant again seeks a working with children clearance because she wishes to be ordained as a religious minister of a mainline church (the Church) which would involve a wider range of community engagement including having direct contact with children as part of that role. Section 6(2)(j) of the Act provides that all work for a religious organisation that involves direct contact with a child is considered to be “child-related” work.

5. Section 28(7) of the Act states that “in proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”.

6. The respondent’s position as set out in written submissions filed on 15 October 2020 prior to the hearing on 17 November and 23 December 2020, was that it neither consented to nor opposed the application but reserved the right to determine a final position after the close of oral evidence at the hearing. In closing oral submissions on 23 December 2020, Counsel for the respondent opposed the application.

7. Due to the sensitive nature of these proceedings and to protect the identity of an alleged victim, an order was made on 7 November 2019 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) that with the exception of expert witnesses and officers of government agencies, the publication of broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym ‘AYU’ has been used for the applicant’s name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

Issue for determination

8. The issue for determination is whether, having regard to the matters set out in s 30(1) and 30(1A) of the Act, the relevant facts, and the evidence before the Tribunal, the applicant has discharged the onus placed on her under s.28(7) of the Act and established on the balance of probabilities that she does not pose a risk to the safety of children.

Background

9. The applicant was convicted by a jury in the District Court of New South Wales in 2002 for manslaughter in relation to the death of her daughter in early 2000.

10. The applicant was sentenced to five years imprisonment from the date of her conviction in 2002 with a non-parole period of two years.

11. The applicant unsuccessfully appealed her conviction and sentence to the NSW Court of Criminal Appeal. Her appeal was dismissed in May 2003.

12. The applicant was released on parole on 25 April 2004.

13. As noted in the introduction, the applicant’s previous application for an enabling order on 29 July 2013 to the former Administrative Decisions Tribunal was refused on the ground that the applicant had not addressed her long history of passive acceptance and had not discharged her onus under s 28(7) of the Act to prove to the contrary that she posed a risk to the safety of children.

14. The applicant’s second application for a working with children check clearance on 16 September 2019 was made in the full knowledge that she was not eligible for a clearance as a result of the disqualifying offence. The application was made in order to satisfy the requirements for the commencement of these proceedings seeking an enabling order by this Tribunal.

Material before the Tribunal

15. In determining this matter, the Tribunal has taken into consideration the following:

Written material filed on behalf of the applicant

1. Application for administrative review to which is attached the Grounds for Application, letter dated 27 September 2019 from the respondent advising that it did not grant a Working with Children Check clearance to the applicant and a copy of the decision of this Tribunal on 23 May 2014 refusing to grant an enabling order to the applicant (marked “Exhibit A1”);

2. Applicant’s Written Outline of Submissions filed on 5 November 2020 (marked “Exhibit A2”);

3. Affidavit of AYU made on 30 January 2020 (marked “Exhibit A3”);

4. Affidavit made on 30 January 2020 in support of the application (Supporting Affidavit) (marked “Exhibit A4”);

5. Risk Assessment Report dated 21 March 2020 prepared by Mr Rudd de Bakker, Clinical Psychologist (marked “Exhibit A5”);

6. letter dated 30 September 2019 from the first referee (First Referee) (marked “Exhibit A6”);

7. letter dated 3 December 2019 from a second referee (Second Referee) (marked “Exhibit A7”);

8. letter dated 12 February 2019 re the applicant’s completion of her Period of Discernment with the Church from a third referee (Third Referee) (marked “Exhibit A8”); and

9. Catholic Education Office Working with Children Background Check dated 6 April 2011, with a supporting reference dated 31 March 2011 from a fourth referee (Fourth Referee) (marked “Exhibit A9”).

Written material filed on behalf of the respondent

1. the Respondent’s Written Outline of Submissions filed on 15 October 2020 (marked “Exhibit R1”);

2. Index to Court Book filed on 15 October 2020 (marked “Exhibit R2”);

3. Volume 1 of 2 volumes of the agreed Bundle of Evidence, with tabs and numbered pages 1 to 516 (marked “Exhibit R3”);

4. Volume 2 of 2 volumes of the agreed Bundle of Evidence, with tabs and pages numbered 517 to 939 (marked “Exhibit R4”); and

5. Additional documents filed by the respondent on 3 December 2020 comprising an index, letter of instructions dated 9 December 2019 from Priest Legal to Mr de Bakker, further letter of instructions dated 30 January 2020 from Priest Legal to Mr de Bakker, clinical notes of Mr de Bakker dated December 2019 and clinical notes of Mr de Bakker dated 15 January 2020 (marked “Exhibit R5”).

Oral evidence

1. The oral evidence given by the applicant during the hearing on 17 November 2020.

2. The oral evidence given by Mr de Bakker, clinical psychologist, during the hearing on 23 December 2020.

Oral submissions

16. Closing oral submissions made on behalf of the respondent on 23 December 2020.

17. Closing oral submissions made on behalf of the applicant on 23 December 2020.

Applicable legislation

18. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:

3 Object of Act

The object of this Act is to protect children—

(a)by not permitting certain persons to engage in child-related work, and

(b)by requiring persons engaged in child-related work to have working with children check clearances.

19. The paramount consideration in the operation of the Act is set out in s 4:

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

20. “Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.

21. The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” In considering this critical aspect of the meaning of “risk”, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [26]:

“…what one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word “risk” with the words that follow, namely, “to the safety of children”.”

22. The Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 at [26].

23. As noted in the introduction, s 6(2)(j) of the Act provides that all work for a religious organisation that involves direct contact with a child is considered to be “child-related” work.

24. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds a working with children check clearance or there is a current application by the person to the Children’s Guardian for the relevant working with children check clearance.

25. Section 18(1) of the Act provides that the Children’s Guardian must not grant a working with children check clearance to a “disqualified person”:

18 Determination of applications for clearances

(1)

The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons)—

(a)a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

26. A “disqualified person” is a person who has been convicted of an offence specified in Schedule 2 of the Act.

27. A conviction for the offence of manslaughter of a child (other than as a result of a motor vehicle accident) is a specified offence listed in Schedule 2.1(1)(b) of the Act.

28. The applicant is a “disqualified person”, having been convicted of the manslaughter of her child in 2002.

29. Part 4 of the Act deals with reviews and appeals. In particular, s 28(1) provides that a disqualified person may apply to the Tribunal for an order that the person is not to be treated as disqualified with respect to the offence specified in the order (“an enabling order”). Under s 28(6) of the Act, if the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a clearance.

30. Section 28(7) of the Act provides that “in proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”. As already noted, the applicant has the burden in these proceedings to rebut the statutory presumption that she poses a risk to the safety of children.

31. In determining whether the applicant has displaced the presumption that she poses a real and appreciable risk to the safety of children, the Tribunal is required to consider “the totality of the evidence”: BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [28] citing The Commissioner for Children and Young People v IK [ 2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before the Tribunal: CYY v Children’s Guardian (No.2) [2017] NSWCATAD 262 at [69]-[71].

32. An enabling order cannot be made subject to conditions: s 28(8) of the Act.

33. The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under s 4 of the Act and the jurisdiction of the Tribunal under s 28 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34]; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [26].

Mandatory criteria for determining an application

34. In determining an application, the Tribunal must consider the matters set out in ss 30(1) and 30(1A):

30 Determination of applications and other matters

(1)

The Tribunal must consider the following in determining an application under this Part—

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1) any order of a court or tribunal that is in force in relation to the person,

(j) any information given by the applicant in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children’s Guardian considers necessary.

Two-part test to be satisfied before an enabling order can be made

35. If, having considered the matters set out in s 30(1)(a) to (k), the Tribunal considers that an applicant does not pose a risk to the safety of children, it cannot make an enabling order unless it is satisfied that the applicant meets the two-part test set out in s 30(1A) of the Act:

(1A)

The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

First limb of the two-part test known as the “reasonable person” test

36. The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [26].

Second limb of the two-part test known as the “public interest” test

37. The second limb of the two-part test is referred to as the “public interest” test. It must be considered in the context of s 4 of the Act, namely that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [74].

38. When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY (No 2) v Children’s Guardian [2017] NSWCATAD 262 at [75].

39. If the Tribunal is not satisfied that the applicant has met either of the first or second limbs in the two-part test, then it must refuse to make an enabling order.

Mandatory matters to be considered in determining the application

40. In determining the application, the Tribunal “must consider” those matters specified in s 30(1) and 30(1A) of the Act. The evidence will be considered under each of the mandatory criteria headings.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar: s 30(1)(a)

41. The applicant was convicted by a jury in the District Court of New South Wales on in 2002 for manslaughter in relation to the death of her daughter in early 2000.

42. The applicant was convicted for the negligent failure to seek medical treatment for her child whom the applicant knew had been ill for a period of five or six months and was deteriorating in the period immediately leading up to the child’s death. The applicant failed to act upon medical advice from a GP, Dr Webster, to take the ailing child to a hospital close by and, instead, left the area without taking the child to hospital for treatment. The applicant was aware that the child was severely malnourished.

41. A forensic pathologist said that the cause of death was malnutrition and the child’s condition was treatable. In his sentencing remarks, Judge Garling stated that the applicant was negligent and, by her deliberate acts and/or omissions, was in breach of her duty of care owed to the child. The act or omission of the applicant fell so far short of the standard a reasonable person would have exercised in the circumstances that it merited a sentence of full-time imprisonment. The act or omission caused or accelerated the death of the child (pages 43-44 of Exhibit R3).

42. As acknowledged in paragraph 50 of the Applicant’s Written Outline of Submissions (Exhibit A2), by any measure the disqualifying offence is a serious one.

43. The applicant sought, unsuccessfully, to defend the charge on the basis that she was a victim of a violent and abusive relationship and had acted under duress caused by her controlling husband at the time. The jury rejected the defence of duress, finding that the applicant had several opportunities to seek assistance for her child but failed to seek that assistance, and found her guilty of the offence. When sentencing the applicant, Judge Garling took into account that the applicant was in fear of her husband and his mental domination.

44. The applicant was sentenced to imprisonment for five years from the date of her conviction with a non- parole period of two years.

45. The applicant appealed against her conviction and sentence. Both appeals were dismissed.

46. The applicant was released on parole on 25 April 2004.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

Period of time since the disqualifying offence

49. The disqualifying offence resulted in the death of the applicant’s daughter in early 2000 and the applicant was convicted in 2002.

Applicant’s rehabilitation and conduct in church and community affairs

50. Since the disqualifying offence the applicant has shown a commitment to community service, self-improvement and rehabilitation. The applicant is seeking to be ordained as a religious minister of the Church, being currently engaged in unpaid work for the Church as a lay preacher and in providing counselling and chaplaincy services to women in prison. Her affidavit evidence is that she first joined the Church in 2000 and became a prison chaplain after being on an interdenominational prison ministry team in 2014 which led to having three years of extensive pastoral counselling, theology and chaplaincy training and study (paragraph 55 of Exhibit A3).

51. The applicant’s remorse over her failure to protect her own child’s life is set out in paragraph 55 of her affidavit (Exhibit A2), expressed in a desire to make the rest of her time alive (which she had failed to keep for her child) something worthwhile and of benefit to others:

“It has always been important to me that I find a way to give from what is best within me, toward the betterment of others’ lives – or at least being some small part of reducing the amount of suffering in the world. This became more important to me out of wanting to make the rest of my time alive, for which I’d failed to keep [my child], something worthwhile and of some benefit to others, particularly to struggling or marginalised people.”

Applicant’s parental responsibilities for her surviving children

52. The applicant has had sole parental responsibility for her two living children since being paroled in 2004. It is acknowledged in submissions for the applicant that raising her daughters had not been without its challenges (paragraph 54 of Exhibit A2).

53. Against the applicant’s assertion in paragraph 49 of her affidavit (Exhibit A3) that she has “never had any issues in [her] dealings with children” since the death of her daughter, there is evidence of difficulty in the relationship between the applicant and one of her surviving daughters, in 2008-2009.

54. A report by the Department of Community Services (DoCS) (pages 250-252 of Exhibit R3) refers to an incident between the applicant and her daughter in a shopping centre in April 2009, with the daughter asserting that her mother had tried to “choke her”. A secondary assessment report completed by DoCS after the incident (pages 253-259 of Exhibit R3) noted that the daughter had allegedly provoked her mother by shouting out in public “intensely personal and hurtful statements” about the death of the youngest child. The report described the daughter as “violent at times”, “unpredictable” and “a very difficult child”, that she had been diagnosed with severe depression and is medicated (page 251, Exhibit R3). The DoCS Caseworker noted that the daughter’s anger was taken out on her mother and that the mother was not coping. The applicant was reported as having made it clear that she did not want the child back as she didn’t “feel safe”. The child, likewise, was reported as not feeling “safe” with her mother at that point. Attempts were made to have the daughter admitted to hospital as a social admission and attempts were made for the daughter to be put into safe accommodation.

55. The secondary assessment report completed by DoCS also stated there were two allegations in 2008 that the applicant had hit her daughter with a plastic rod, causing bruising (page 256 of Exhibit R3). The report also said that the applicant had discussed parenting strategies with a Community Health Counsellor and had agreed not to use the rod anymore. Under the heading “Risk of Harm Analysis: What is the likelihood of the harm continuing?”, the report said that the applicant acknowledged that were on-going issues with her family, that she wanted to work through the issues and wanted her daughter to remain in her care. However, the report states that the applicant also “has her own mental health issues” which has an impact on her relationship with her daughter (page 257 of Exhibit R3).

56. Under cross-examination, the applicant did not deny the incidents. She explained that her daughter had experienced episodes of self-harm and had attempted suicide after she started anti-depressant medication. The applicant said that she found out subsequently that a side-effect of the medication for teenagers can be suicidal ideation. When asked whether her statement to Jenny Howell, Forensic Psychologist, that she had experienced some difficulties parenting her daughter as a young person was an understatement, the applicant answered that from the perspective of what she had heard from some other people about difficult teenagers, she felt that at the time it was an adequate summary. The Tribunal noted that the applicant did not attempt to refute or minimise the information in the reports, or deny what she had said to Ms Howell. Her frank explanation under cross-examination for her statement to Ms Howell did not raise any concerns in assessing whether she poses a risk to the safety of children.

57. In re-examination, the applicant described the incident at the shopping centre. She said that her daughter who had a history of running away (and on one occasion had stayed away all night) had starting acting defiantly, not liking anything that the applicant was saying to her, and throwing sugar sachets at the table they were sitting at. Apprehending that her daughter was attempting to run away, the applicant was holding onto her and a passer-by accused the applicant of abusing or strangling her, and called the Police who attended. Nothing further arose in connection with the Police attending.

58. Also in re-examination, the applicant described the allegations that she had hit her child with a plastic rod. She said that she had slapped her daughter on the bottom with a plastic hairbrush to stop her screaming and the child reported it to the treating mental health nurse at the local hospital. The applicant explained that she had sought out treatment for her daughter to help navigate the difficult time, with behavioural problems which she believed stemmed from the trauma of her childhood. The applicant said that she wanted to ensure her daughter was supported, to get through the period of difficulty healthily.

59. Against the acknowledged difficulties experienced with her daughter, the applicant’s affidavit evidence is that she is now close to her grown daughters and spends large chunks of time with them in their homes or on the phone, sharing their lives and supporting them physically or verbally (paragraph 46 of Exhibit A3). In giving her oral evidence, the applicant said that her relationship with her daughter who is now 24, is now “close, supportive, enjoyable”. The applicant’s evidence as to her positive relationships with her daughters is corroborated in paragraph 8 of the Supporting Affidavit (Exhibit A4), and in the statements of the First Referee (Exhibit A6) and the Second Referee (Exhibit A7).

Involvement with grandchildren and nephews

60. The applicant also deposed (paragraph 46 of Exhibit A3) that she has been closely involved with her two grandchildren since they were born and intimately involved in their home and school lives. Her evidence is corroborated in paragraph 13 of the Supporting Affidavit (Exhibit A4).

61. The applicant enjoys good and affectionate relationships with her nephews, interacting in family games or activities (paragraph 47 of Exhibit A3).

Work in teaching environment

62. In 2011, before the introduction of the Act, the applicant was employed as a casual Teacher’s Assistant at a high school and worked extensively with children in that capacity (paragraph 48 of Exhibit A3) for approximately two years. There is no evidence of any incidents or concerns raised in connection with her interactions with children during that employment.

Marriage relationship

63. The applicant appears to be in a stable relationship, having married her current husband in 2013. The applicant’s written evidence is that her relationship with her husband is one of “equality, mutual respect and support for each other’s self-expression and direction” (paragraph 43 of A3).

The age of the person at the time the offences or matters occurred: s 30(1)(c)

64. The applicant was 31 at the time of the disqualifying offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim: s 30(1)(d)

65. The victim was a child at the time of the disqualifying offence and unable to fend for herself. The applicant had the care of her daughter and knew that the child had been unwell for five or six months, deteriorating with malnutrition towards the end of her life. The child was entirely dependent on the applicant for all the necessities of life and her health care. The applicant owed the child a duty to care for her and to protect her (as per Judge Garling’s sentencing remarks, at page 47 of the respondent’s Bundle of Evidence, Exhibit R3).

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)

66. The applicant was 31 and the mother of the victim (a child).

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

67. The applicant, being the mother of the victim, knew that the victim was a child.

The person’s present age: s 30(1)(g)

68. The applicant is now 52 years of age.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

69. With the exception of the disqualifying offence, the applicant has no criminal history either before or after that offence. As noted above with respect to mandatory criteria (b), since her release from prison, the applicant has raised two daughters and plays an active role in the lives of her two grandchildren.

70. It is clear to the Tribunal that the applicant has been committed to her own rehabilitation and has increasingly been involved in community work through the Church. According to the Third Referee (Exhibit A8), the applicant has during her period of training to become a minister (referred to as the “Period of Discernment”), completed a number of courses and willingly participated in much practical work in a variety of different ministry settings, and displays a growing confidence in preaching, pastoral care and serving and sharing with people of all backgrounds.

71. It was submitted on behalf of the applicant (paragraph 64 of Exhibit A2) and is accepted by this Tribunal that during the 16 years since her parole, she has shown herself to be a responsible and contributing member of her community.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

72. The circumstances of the disqualifying offence were quite particular and are unlikely to be replicated.

73. The applicant has been consistently assessed as being unlikely to re-offend. The Tribunal notes the following assessments:

Dr Olav Nielssen, Forensic Psychiatrist, 10 July 2000

1. Dr Olav Nielssen, Forensic Psychiatrist, on 10 July 2000 (pages 19 – 22 of Exhibit R3), approximately 5 months after the death of the child, was asked to prepare an opinion regarding whether the applicant was fit to look after her children without supervision.

2. Dr Nielssen referred to detailed instructions received from the applicant’s barrister, a life history prepared by the applicant, various reports from DoCS, a grief counsellor, a 64 page report prepared by Ms Toni Single, Clinical Psychologist, Orders made in Care Proceedings on 9 June 2000 and to Dr Neilssen’s interview with the applicant for a little over an hour in his rooms. The applicant told Dr Nielssen that she thought a neighbour may have reported the family to DoCS, after hearing her husband yelling. She said that had done her best to hide from outsiders the extent of the emotional and physical abuse from her husband. She was afraid to oppose her husband’s views. She said that she “suppressed her emotional responses and her own opinions in order to avoid causing conflict, which often resulted in physical abuse” (page 20 of R3). She said at that time she consulted with Ms Single, she was still in an abusive relationship with her former husband and was unable to express her own feelings or opinions. She said that she mourned for the child who had died, but that she preferred to see the child’s death on a spiritual level and not to express regret.

3. Dr Nielssen opined that the applicant’s life history “did not reveal a clinically significant degree of emotional instability, or impulsive and self-destructive behaviour observed in people with borderline personality disorder” (page 21 of R3) and stated:

“There is no suggestion that [the applicant] has been the perpetrator of any form of physical or other abuse on the surviving children, and I did not elicit any abnormal attitudes towards the children that would raise concerns about her ability to care for them without continuous supervision.”

4. Dr Nielssen’s evidence before Judge Garling was that he was of the opinion that the applicant did not have any kind of psychiatric disorder but that she suffered from ‘Battered Woman Syndrome’. He described this as a state where a woman who is subject to physical abuse forms a kind of helplessness and inability to initiate action to leave the situation (page 46 of R3).

Crown Prosecutor, Submissions on Sentence, 2002

1. W. Creasey, Crown Prosecutor, in written Crown Submissions on Sentence (pages 849 and 850 of Exhibit R4) in relation to the likelihood of the prisoner committing further offence, stated:

“On the evidence this seems to be hardly likely.”

Judge Garling, sentencing hearing, 2002

1. As already noted, Judge Garling remarked during sentencing (page 50 of Exhibit R3):

“It is unlikely the prisoner will offend in this way again.”

2. In sentencing the applicant, Judge Garling gave detailed reasons which included consideration of the report and evidence given by Dr Nielssen. His Honour accepted Dr Nielssen’s opinion that the applicant suffered from ‘Battered Woman Syndrome’ (page 46 of Exhibit R3). Judge Garling referred to Dr Nielssen’s opinion that the applicant, suffering from that syndrome, “accepted the decisions made by her husband despite having reservations about them. She was under his control. It is a high degree of control.”

3. With respect to the applicant’s remorse, Judge Garling said that when he was originally considering the sentence, he was of the view that the applicant had not accepted responsibility for the part she played in the death of her daughter. However, in handing down the sentence, Judge Garling accepted that the applicant had, some months prior, come to accept that she could have and should have done more. It is noteworthy that Judge Garling said the following:

“I had, for some time, doubts about her remorse, but she has convinced me that she is remorseful. She does it in her own way. Whilst it is not apparent, that she, in fact, does suffer from the death of [the child].”

Report of Diana Hutchison, Psychologist, 22 October 2003

1. The report of Diana Hutchison, Psychologist and Seyed Hosseini-Pour, Senior Psychologist, on behalf of the Department of Corrective Services (pages 27 – 28 of Exhibit R3), noted that the applicant was seen on 3 occasions for around 2.45 hours and that the report was prepared for the purpose of the applicant’s application for external programs. The report was prepared with the applicant having 6 months of her sentence to serve.

2. The report noted that the applicant said she had been “unable to take action due to a fear of her defacto” and a general feeling of being helpless where she “had lost her sense of self and ability to think independently”. The report referred to her history of past sexual abuse by her stepfather and suggested it was possible that “her boundaries of self and other were confused and this confusion carried through until she was able to be out of her defacto’s influence”.

3. The report noted that no psychiatric history or current diagnosis was evident. The applicant’s profile after MCMI-III assessment (measuring aspects of personality and psychological functioning with emotional and interpersonal difficulties) indicated:

“a person who is likely to present as pleasant, social, and compliant. Some over-dramatisation may be indicated at times.” (page 28 of R3)

4. The report noted that the applicant had returned to her family religion, in contrast to “believing what her ex defacto believed”. (page 28 of R3)

5. The report noted that the applicant was attending both group and individual sessions with a psychologist while in prison and contact with a parenting counsellor. The report said that the applicant had made an effort to reduce possible influences from others by gaining a greater understanding of herself, becoming more assertive and more aware of boundary issues in a psychological sense, and was agreeable to ongoing contact with psychology. The report concluded:

“[the applicant] has no history of violence and is unlikely to present as a risk to children. Her risk to others particularly children could be seen to be low.” (page 28 of R3)

Pre Release Report of Brett Bannerman, Probation and Parole Officer, 6 February 2004

1. Comments by Brett Bannerman, the applicant’s Probation and Parole Officer on 6 February 2004 in the Probation and Parole Service Pre-Release Report (page 76 of Exhibit R3) recorded that the applicant:

“… is not considered by DOCS to be a risk to her remaining children.”

District Manager, Probation and Parole comments 31 March 2011

1. Comments made by the Fourth Referee, District Manager Probation and Parole (page 30 of Exhibit R3 and Exhibit A9), on 31 March 2011 in response to the question “What is your view of the applicant’s experience of working with children, and on what do you base your views?” wrote that the applicant:

“…has raised two children who returned to her fulltime care following her release from custody. Neither DOCS nor this Service had any concerns relating to the welfare of her children. She impressed as a responsible and devoted mother. This Service still holds no concerns in regard to [the applicant] working with children.”

Ms Jenny Howell, Forensic Psychologist, 22 November 2013

1. The report of Jenny Howell, Forensic Psychologist, was prepared on 22 November 2013 in connection with the applicant’s 2013 application for an enabling order.

2. Ms Howell obtained the applicant’s family and developmental history which revealed sexual abuse by her stepfather as a child which she did not disclose to her mother until she 20. She was sexually abused by two other men also described as stepfathers. One was disclosed after the termination of the applicant’s relationship with her mother and the other occurred during and after the termination of the relationship with the mother.

3. Ms Howell obtained a psychosocial history from the applicant. This included her friendships during adolescence and early adult years at university, her relationship with her de facto to whom she became pregnant, and her life with him. The applicant described her de facto husband as “demanding” and wanting to “control all aspects of her life including her thoughts, feelings and behaviour.” She said that the process of ‘reshaping’ her as a person was insidious and occurred over time, with her de facto using physical abuse, verbal abuse and ridicule to undermine her confidence in herself and her judgment in her mothering capability. She said that one way in which her de facto exercised control over her was to always have one of her children with him and that she was afraid that he would take her children from her.

4. Ms Howell noted that the applicant had not suffered from post-natal depression and had never been scheduled as an inpatient for mental health problems. While serving her sentence, the applicant was seen by a mental health nurse and treating psychiatrist to manage the grief associated with the death of her daughter and depression associated with the separation from her other two daughters.

5. Ms Howell noted Dr Nielssen’s opinion that the applicant did not have a psychiatric disorder but suffered from ‘battered woman syndrome’ and commented that research in the field of domestic violence found that post-traumatic-stress disorder can result from being subjected to repeated physical, psychological and/or sexual violence (page 163 of Exhibit R3).

6. The applicant denied a history of alcohol problems and said that she smoked marijuana experimentally but had never used illicit substances as an adult.

7. The applicant was assessed using the Historical Clinical Risk Factors (HCR-20) and was considered to be:

“a low risk for future violence”. (page 164 of Exhibit R3)

8. In Ms Howell’s opinion, there were was no evidence to suggest a major psychological disorder, there were no psychotic features evident in her presentation and she did not express current or past suicidal thoughts. Using the Hare Psychopathy Checklist, Ms Howell said she found few personality characteristics associated with psychopathy and noted there were a number of issues that were protective against the applicant’s risk and likely to ameliorate future risk, namely:

“She does not present as inherently antisocial, either by way of attitude or lifestyle

She has not come to the attention of any authority for aggressive, violent or sexual offences other than in relation to her conviction

[she] does not present with a significant history of substance abuse both as an adolescent and adult

[she] has no significant history of mental health concerns. Her engagement with mental health support in custody appears contextual and appropriate in her circumstances

[her] lifestyle is stable. She has recently married, is employed and has positive ties to the community through participation with her church

[she] does not endorse attitudes and values support of the physical and sexual [abuse and neglect of children.”

9. In Ms Howell’s opinion, the applicant “[did] not pose a risk to the safety of children” (page 165 of R3).

10. Further, Ms Howell opined that the applicant’s “risk to the safety of children is low” (page 165 of R3).

11. Under the heading “Formulation”, Ms Howell said (page 166 of R3) that the applicant acknowledged that her behaviour had not been protective of her daughters and she expressed remorse and shame. She did not engage in extreme minimisation or denial. Ms Howell said that structured clinical assessment, in conjunction with the HCR-20 suggested that the applicant was “a low risk for future violence”. (page 166 of R3)

Mr Rudd de Bakker, Clinical Psychologist, Risk Assessment Report, 21 March 2020

1. In his report dated 21 March 2020, Mr Rudd de Bakker noted that normally there would be a battery of tests including static and dynamic risk factors to assess the risk level of the person being assessed, but said that there is “very little to no research available around the risk of re-offending regarding manslaughter due to neglect” (page 4 of Exhibit A5).

2. Nonetheless Mr de Bakker opined that some parallels with the offence of manslaughter of a child could be mentioned (although there was no direct physical violence involved in the death of the applicant’s child). He thought that murder could be a reference point, which has in general a low recidivism. He also noted that even in higher recidivism offences such as sex offences, the risk is the same as the general population if there have been no offences for more than 20 years. Using a parallel with sex offenders, Mr de Bakker considered that, after 20 years, the applicant constituted the same risk as the general population (page 8 of exhibit A5).

3. Mr de Bakker accepted that Dr Nielssen found no evidence of a psychiatric disorder, and that the applicant suffered from ‘battered wife syndrome’ which is now typified as a type of post-traumatic stress disorder.

4. Mr de Bakker noted (page 6 of Exhibit A5) that the applicant had been tested with the Historical Clinical Risk Factors (HCR-20) in 2013 by Ms Howell and was considered to be a low risk for future violence.

5. Mr de Bakker identified that the key question to be considered was “the capacity of [the applicant] if she would be able to cope with any form of pressure of a third party if a child was in danger and therefore be able to report to the relevant organisations to ensure the safety of the involved child” (page 6 of Exhibit A5).

6. He agreed with Ms Howell on the factors that are protective against the applicant’s risk. He adopted those factors and added another, namely, that the applicant feels guilt and remorse about the death of her daughter (page 5 of exhibit A5). Mr de Bakker opined:

“After clinical assessment and looking at the supplied sources of information I am of the opinion that [the applicant] is a very low risk for any future violence. In regard to the risk of not asserting herself when a child is in danger and thus informing the necessary organisation, I am of the opinion she represents the same risk as the general population. This means a very low risk as no risk does not exist.”

7. Given that Mr de Bakker agreed with the protective factors identified by Ms Howell and was of the opinion that the applicant has addressed her grief and remorse over the death of her daughter, his view is that since the applicant is now in a stable marriage and a secure community supportive network within the Church, she:

“will be able and definitely be prepared to assert herself where a child may be at risk.” (page 8 of A5)

8. On the question of the applicant’s ability and preparedness to assert herself in circumstances where a may be at risk from another person, Mr de Bakker’s opinion was clear:

“In regard to the risk of not asserting herself when a child is in danger and thus informing the necessary organisations, I am of the opinion she represents the same risk as the general population. This means a very low risk as no risk does not exist.”

9. It was put to Mr de Bakker in cross-examination that there was nothing in his notes of consultation with the applicant (Exhibit R5) about her psychiatric history. He answered that he had read all of the material provided to him and reports from the psychiatrist, and had concluded that there was no psychiatric disorder.

10. Mr de Bakker acknowledged that the mental health of a person is a crucial factor in assessing the likelihood of there being a risk to children. Under cross-examination, he agreed that his report found no significant history of mental health concerns with respect to the applicant. He was referred to the report of Ms Mary Ferrett, Psychologist, dated 18 March 2002 (page 26 of Exhibit R3). Ms Ferrett saw the applicant in connection with a sexual assault service in community health. Her report noted that the applicant had presented with disabling depression and attended 17 sessions to achieve insights into the effects of prolonged child sexual abuse on the applicant’s emotional development. Ms Ferrett held the view that the applicant was vulnerable to abusive relationships as a result of her impaired personal boundaries arising from her experience of child sexual abuse. She noted that the applicant had addressed the issue in therapy which required a concentrated and committed effort by the applicant.

11. Mr de Bakker disagreed with Ms Ferrett’s diagnosis of disabling depression as a psychiatric problem for the applicant. He thought the applicant may have had circumstantial based depression, as opposed to an internal disabling depression (lines 49-50 on page 5 and lines 1-2 on page 6 of the Transcript of proceedings on 23 December 2020). In response to the question of how he could not agree with Ms Ferrett’s diagnosis when he was not present to see the applicant at the time, Mr de Bakker answered that he had talked to the applicant about it and considered it was a normal reaction for a person in those circumstances to have depression.

12. Mr de Bakker did not agree that a severe emotional disturbance referred to in the report of Mr Bannerman (page 76 of Exhibit R3) is a psychiatric disorder (line 35 of page 5 of the Transcript 2).

13. Mr de Bakker also did not agree that disassociation disorder is a psychiatric problem. Mr Bannerman’s report had noted that the applicant suffered from disassociation disorder in the context of the degree of remorse she displayed (page 74 of Exhibit R3). Mr de Bakker acknowledged that a reluctance to be emotional is suggestive of mental health issues but rejected the idea that a person who doesn’t feel like themself for a certain amount of time suffers from a psychiatric disorder.

14. On the second day of hearing, Mr de Bakker was questioned on the evidence he gave on 17 November 2020 that he did not ask the applicant to complete a personality assessment inventory (PAI) (line 29, page 88 of Transcript 1). Mr de Bakker said that the applicant had undertaken a PAI once before and in his experience the results do not change and are fairly consistent over a period of years. He agreed that it is a useful tool for a psychologist to determine whether a person has mental health problems but said that it is based on computer algorithms which can cause problems.

15. Mr de Bakker was referred to the results of the PAI undertaken by the applicant in October 2013, in particular the clinical profile of the applicant which was described as being:

“marked by significant elevations across a number of different scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. The configuration of the clinical scales suggests a person who is tense, angry, unhappy, and emotionally labile.” (page 910 of Exhibit R4).

16. Further, the applicant’s profile was further described:

“She is likely to be quite emotionally labile, manifesting fairly rapid and extreme mood swings and in particular probably experiences episodes of poorly controlled anger. She appears uncertain about major life issues and has little sense of direction or purpose in her life as it currently stands. It is also likely that she has a history of involvement in intense and volatile relationships and tends to be preoccupied with consistent fears of being abandoned or rejected by those around her.”

17. The PAI report referred to the applicant reporting a number of difficulties consistent with a significant depressive experience, and that she may experience to a mild degree, maladaptive behaviour patterns aimed at controlling anxiety (pages 910 – 911 of Exhibit R4). Under the heading “DSM-IV Diagnostic Possibilities” the report advanced the hypothesis that the applicant had Major Depressive Disorder, but ruled out Cyclothymic Disorder, Panic Disorder Without Agoraphobia, Bipolar II Disorder, Somatization Disorder and Borderline Personality Disorder. Under the heading “Critical Item Endorsement” the report noted as significant items the potential for self-harm, the potential for aggression, substance abuse, traumatic stressors and the applicant’s ability to fall asleep.

18. Mr de Bakker’s oral evidence was that the applicant does not, in his expert opinion, suffer from:

• Major depressive disorder;

• Cyclothymic disorder;

• Panic disorder;

• Bipolar disorder;

• Somatisation disorder;

• Borderline personality disorder.

19. Mr de Bakker was challenged on his opinion after only having had four hours of discussion with the applicant. He answered that because of his 35 years of experience, he forms an opinion without taking very long. He said that he was aware the applicant had sought a referral to a psychologist in 2013 because she suspected she had bipolar disorder and discounted the prospect. He said he was aware that she told the psychologist in 2013 that she was suffering from depression and that she self-harmed and cut herself. He rejected the suggestion that she had a serious psychiatric problem. His opinion was that it evidenced a serious mental health problem and asserted that the salient point is that the applicant seeks help for her concerns which is a positive step to take.

20. It was put to Mr de Bakker that his report contained a number of omissions and errors with respect to details of some of the applicant’s history such as:

1. the time she spent with her mother at Christmas 1999;

2. whether she was married or in a de facto relationship with her husband before the disqualifying offence;

3. whether she had used illicit substances as an adult and while in her relationship with her de facto husband;

4. the time when her surviving daughters were placed in the care of DoCS;

5. the issues with the applicant’s younger child having been diagnosed with depression and treated with medication and the child’s issues with her mother (the applicant).

21. Mr de Bakker acknowledged that some of the details may simply have been what he understood from reading the volumes of material provided to him and otherwise he accepted the details as provided to him by the applicant or his report reflected his understanding of the details provided by the applicant. In re-examination, Mr de Bakker confirmed that, on the basis of his consultation with the applicant, he did not have any concerns about her past drug use.

22. It was also put to Mr de Bakker that he had used Ms Howell’s report as the template for his own report and had substantially drawn from Ms Howell’s report. Mr de Bakker answered that he wrote his own report and said that as both he and Ms Howell are forensic psychologists, their reports will contain a lot of the same “formulation”. Counsel for the respondent drew his attention to various sections of Ms Howell’s report including the first and third sentences in the section headed “Background”. In the second paragraph of that section, both reports refer to the applicant’s membership of the Church. Counsel for the respondent noted that both reports contain sections headed “Family and developmental history” and “Psychosocial history” and contain similar information about the applicant’s life history. Mr de Bakker answered that he uses a similar layout to Ms Howell, that he always uses the headings used in his report, and that notes from his consultation do not disclose the totality of his interview with clients because he makes notes directly into his report after talking his consultations.

23. Counsel for the respondent drew Mr de Bakker’s attention to an error in his report about the length of the applicant’s relationship with her current husband (3 years), suggesting this also demonstrated that he had copied from Ms Howell’s report. The Tribunal notes that Counsel for the respondent identified errors in Mr de Bakker’s report evidencing carelessness in his approach to the biographical and historical details. However, as clarified in re-examination on this point, Mr de Bakker said that a person’s history basically stays the same.

24. Counsel for the respondent put it to Mr de Bakker that, by including in his report a protective factor against the applicant’s risk that she feels guilt and remorse about the death of her daughter, he was implying that Ms Howell also considered that to be a protective factor. Mr de Bakker answered that he was not creating a misleading impression about Ms Howell’s opinion and that he was being specific about that protective factor. The Tribunal does not consider that this detracts from Mr de Bakker’s opinion, as he openly acknowledged that he had agreed with Ms Howell’s conclusions as to risk factors, together with his opinion that the applicant’s guilt and remorse would also be predictive against future risk.

25. Mr de Bakker’s oral evidence was that the applicant’s sexual abuse as a teenager had continued to be a serious issue for her mental health throughout her life but he was not prepared to opine that this was still an issue as it would normally take longer to reach a concluded position on that. He said that the applicant had sought a lot of help to address this issue.

26. Mr de Bakker did not agree that the applicant’s consultations with Deborah Stuart about her marriage and personal development demonstrated that she had serious issues with her marriage or that she did not have a stable lifestyle. In re-examination, Mr de Bakker said that he thought a lot of the applicant’s problems in relationships are “normal” and that that does not mean that her life is not stable. His opinion on this issue was accepted by the Tribunal.

27. In re-examination, Mr de Bakker said that the conclusions in his report are his own, based on his interview with the applicant and his review of the material provided to him. He also said that, with reference to the PAI report, at the time of his interview with the applicant, he formed the opinion based on that interview and his review of the materials provided, that the applicant was not suffering from a major depressive disorder.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

74. The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

Any information given by the applicant in, or in relation to, the application s 30(1)(j)

75. The applicant has provided the following information in support of the application:

1. The applicant’s affidavit sworn on 30 January 2020 (Exhibit A3), testifying to various matters including her desire to be considered for ordination in the Church, the abusive circumstances of her relationship with the father of her deceased child, the therapeutic advice and counselling she has sought to establish herself as an independent and assertive person, her relationship with her surviving daughters and grandchildren, and the three years of extensive pastoral counselling, theology, chaplaincy training and study she undertook after commencing prison ministry in 2014;

2. The Supporting Affidavit, sworn on 30 January 2020 (Exhibit A4);

3. Letter of support dated 30 September 2019 from the First Referee (Exhibit A6);

4. Letter of support dated 3 December 2019 from the Second Referee (Exhibit A7);

5. Reference dated 12 February 2019 concerning the applicant’s ordination as a minister of the Church from the Third Referee (Exhibit A8);

1. Reference dated 31 March 2011 from the Fourth Referee supporting a working with children background check for the applicant’s employment with the Catholic Education Office (Exhibit A9);

2. Risk assessment report of Mr Rudd de Bakker dated 21 March 2020 (Exhibit A5), as discussed in relation to s 30(1)(i) – the likelihood of ay repetition of offences.

Supporting character evidence

76. None of the applicant’s referees or the deponent of the Supporting Affidavit were required to be available for cross-examination on their statements and Counsel for the respondent did not object to them.

77. According to the supporting character evidence supplied, the applicant’s conduct and her ongoing rehabilitation since her release from prison have been exemplary.

78. The deponent of the Supporting Affidavit had also provided an affidavit in support of the applicant’s previous application on 29 July 2013 to the Tribunal. In similar terms to her previous affidavit, the deponent said (paragraph 5 of Exhibit A4) that she had a great deal of experience in working with children and families from all walks of life, having spent 40 years in various roles including as a children and families’ worker, primary school teacher, nanny and in-home carer. She said she had known the applicant for 19 years and had spent time with the applicant in the two years prior to her imprisonment in a variety of contexts including church services, small group meetings and social events. She said that the applicant had shared with her the details of the events leading to the death of her youngest child and the court proceedings.

79. The deponent observed the applicant interacting with her own daughters and said she was “always affectionate and attentive to her daughters’ needs and friendly and respectful towards all children” (paragraph 8 of Exhibit A4). She has also seen the applicant interact with her two grandsons and observed her to exhibit “great patience, joy, loving discipline, concern for the children’s safety and a wonderful sense of humour” (paragraph 13, Exhibit A4). She described the applicant as “compassionate and able to present her point of view with confidence and clarity”. The deponent said that she would feel “totally relaxed” about leaving her own grandchildren in the applicant’s care (paragraph 15, Exhibit A4). Again, in similar terms to those put in her previous affidavit, the deponent said that she believed the applicant would make an excellent small group leader at the Church gatherings and said that the fact that the applicant does not have a working with children clearance continues to be a “barrier to her ability to serve in the Church and community” (paragraph 12, Exhibit A4).

80. The First Referee’s letter in support (Exhibit A6) referred to her knowledge of the applicant since mid-2001, their friendship and connection within the same Church. The First Referee said that she observed the applicant “showing great care and love and concern for her own children” and said that she related well with other children. She said that the applicant showed a genuine interest in the First Referee’s own children, was “playful”, “responsible” and “careful” with them. She said that she would often leave her children with the applicant to look after, knowing they would be happy and safe. The First Referee said that she observed the applicant to have grown more confident, strong and positive, and able to use her intelligence and articulate voice to “stand up to someone trying to talk her down”.

81. The Second Referee’s letter in support of the application for clearance (Exhibit A7) was given in the context of having been the applicant’s mentor and assessor for 5 years in her studies to be commissioned as a Lay Preacher in the Church. The Second Referee said that she was aware of the criminal charge against the applicant and her prison sentence. She said that she had observed the applicant’s interactions with both her daughters and her grandchildren. The Second Referee said that she knew that the applicant had had the “courage to confront an older man over his inappropriate behaviour towards her”. She also said that she has no doubt that the applicant would “act appropriately and courageously to protect children or other vulnerable people in her care”.

82. The reference from the Third Referee was given in the context of the applicant having completed her “Period of Discernment” in pursuit of her desire towards ministry in the Church. He said that the applicant has demonstrated a growing confidence in preaching, pastoral care and serving and sharing with people of all backgrounds (Exhibit A8).

83. The reference from the Fourth Referee (Exhibit A9) was made several years ago (in 2011) in connection with a working with children background check undertaken for the applicant to be employed in Catholic systemic schools. This reference is afforded only minimal weight, however it contains the opinion of the Fourth Referee who had been the applicant’s former supervising parole officer. She said that the applicant had raised two children who returned to her full-time care following the applicant’s release from custody and that neither she nor DoCS had any concerns relating to the welfare of the applicant’s children. She said that the applicant “impressed as a responsible and devoted mother” and that she held no concerns in regard to the applicant working with children. She said that the applicant had completed parenting programmes whilst on bail for her offence and had commenced a Graduate Diploma in Education whilst on parole. The Fourth Referee’s final comments were that the applicant had considerable psychological intervention whilst on bail and in custody, that she exhibited strong Christian values and had completed parole in an “exemplary manner”.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

84. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 30A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children’s Guardian considers necessary: s 30(1)(k)

85. The Tribunal considered matters submitted on behalf of each of the applicant and the respondent.

Submissions on behalf of the applicant re s 30(k)

1. It was submitted on behalf of the applicant that:

1. there were serious circumstances which influenced the decisions made by the applicant at the time which should be considered in assessing this second application. They concern the domestic violence circumstances in which the applicant found herself at the time, being subjected to physical assaults and mental pressure over a period of years, as accepted by Judge Garling;

2. she has been consistently assessed by various experts and officers over the course of 20 years since the disqualifying offence as posing a very low risk to the safety of children;

3. the only factor in the applicant’s history that is suggestive of any risk to the safety to children is the disqualifying offence itself;

4. the offence, while plainly acknowledged as being serious and significant, occurred in particular circumstances recognised by Dr Nielssen in 2000 to be consistent with Battered Wife Syndrome and are unlikely to be replicated;

5. the applicant’s situation today is markedly different from her circumstances in 1999/2000 in that she has rehabilitated herself to become an assertive, confident person, has been in a stable and supportive marriage since 2013, has immersed herself in church and community life and there is no reason to doubt that she would seek medical assistance for children under her care where necessary.

2. The Tribunal probed the applicant on her attitude towards seeking conventional medical assistance if it were required. The applicant acknowledged that at the time of her child’s demise she shared her then-husband’s views about avoiding conventional medicine and that she is currently more comfortable regarding seeking such medical assistance for herself, her children and her grandchildren. The applicant confirmed that she has been involved in the upbringing of her grandchildren and has taken them to seek medical assistance as well as taking her daughters to doctors and hospital for examinations. In response to the Tribunal’s query about whether she still held onto the views that she held when she was with her ex-partner, she said that she does not to the degree that she had previously. She said that she still found herself with one natural treatment but that she has been to doctors and specialists for professional opinions. In response to a specific question from the Tribunal about what she would do if any of her grandchildren were not thriving, the applicant replied that she would take the child to a doctor (line 20, page 42 of Transcript for 17 November 2020).

3. In re-examination, the applicant asserted that if she had the opportunity to seek medical assistance for her child in similar circumstances today, she “absolutely” would seek that assistance (line 37, page 76 of Transcript for 17 November 2020).

Submissions on behalf of the respondent re s 30(k)

1. It was submitted on behalf of the respondent that the respondent had concerns about the unreliability of the applicant as an historian (page 15 of Exhibit R1).

2. The applicant’s actions and movements in the aftermath of the child’s death were that she left her then husband about two months after the death and lived in a women’s refuge with her two surviving daughters. Dr Olav Nielssen’s report noted (page 20 of Exhibit R3) that the applicant had been unable to resume a normal family life in the refuge, a tense and crowded place, with most other residents living through their own crises. The applicant shared one room with her daughters and had little privacy. The applicant disclosed that since leaving her husband she had become increasingly aware of the extent of the abuse that she and her daughters had suffered, that she had suppressed her emotional responses and her own opinions in order to avoid causing conflict which often resulted in physical abuse. The applicant disclosed that she recognised that her relationship with her younger surviving daughter in particular had been affected by the abuse suffered by the applicant.

3. In his sentencing, Judge Garling noted the difference in the applicant’s statements to police in her first interview and those made in her second interview with police after she had left her then-husband and after she had been charged with manslaughter. At her trial, the applicant conceded that her first statements to police were not true but that at the time she feared her husband who governed most of her actions and speech. Her evidence at trial was that there was extreme physical violence at times and severe psychological and emotional abuse and restriction of personal liberties and freedoms (page 42 of Exhibit R3). She asserted that it was fear of reprisal that prevented her from bringing her circumstances of domestic violence to the authorities. Her evidence at trial was that in the first interview she told police what she thought her then-husband would want her to say or because it was what he told her to say. The Tribunal accepts that the applicant suffered under the coercive control of her ex-partner as evidenced by the reports of Dr. Nielssen, Ms Howell and Mr de Bakker. Dr. Nielssen’s evidence was that she suffered ‘battered wife syndrome’ and this was accepted by Judge Garling who took into account her fear of being under her partner’s mental domination. Ms Howell accepted Dr Nielssen’s diagnosis of ‘battered wife syndrome’. Mr de Bakker also accepted Dr Nielssen’s diagnosis and opined that she was steered by fear, incapable of logical rationale:

“I am of the opinion she was not capable of assessing in time what her first husband was doing as he slowly seems to have built up more control. With the constant threats made against the other children her first husband had full control in her mind. [She] was in my opinion in survival mode. She was steered by fear and a such was hardly capable of any logical thoughts or rationale.”

4. During the hearing on 17 November 2020, the applicant was cross-examined on a number of apparent inconsistencies in her versions of facts and events given at different periods of time. Broadly, this included traversing in some detail the events leading to the death of her daughter including the applicant’s discussions with a GP, Dr Webster, and a naturopath in Queensland about treatment for her daughter; the applicant’s various interviews with the Police in the immediate aftermath of the death of her child and in connection with the criminal proceedings; her interview with Toni Single, Clinical Psychologist in connection with Care proceedings with respect to her surviving daughters; details about the dates and whereabouts of her tertiary education; details of the applicant’s attendance on various psychologists over the years including Debra Stuart, Psychologist, to discuss her personal and emotional development; and details of her relationships with her surviving daughters which included an incident involving an alleged assault by the applicant on one of her surviving daughters.

5. Overall, the applicant gave calm and considered responses, answering that immediately following the death of her child, she was experiencing grief and was at that time recovering from having been in an abusive and controlling relationship with her then de facto husband. The applicant gave evidence that she didn’t leave the abusive relationship because of fear and mental helplessness, that she lacked capacity to think outside the fearful situation. She described the events leading to the death of the child as a “catastrophic failure” on her part (lines 27-28, page 19 of the Transcript for 17 November 2020) and regretted “with every fibre of [her] being” not getting her child to hospital (lines 42-44, page 20 of the Transcript for 17 November 2020).

6. In accounting for inconsistencies in previous accounts, the applicant said that her mind was not working well because of “the stress, and the distress, and – and trying not to be emotional, and holding back a lot of grief and distress, and trying to respond to questions and remember things” (lines 3-7, page 22 of the Transcript for 17 November 2020). The applicant said that after the child’s death she was living in hell and that it was all she could do to function every day at the time. When challenged that she had lied in her first interview with police, and had lied about various other accounts, the applicant said that she was doing her best to tell the whole truth to the Tribunal but that before she left her husband, she was used to saying what he had told her to say. Her evidence was that:

“When I left him, I – when I was able to escape I started wanting to tell things truthfully, but I was still in distress and post-trauma. I hadn’t been able to grieve. It was some time before I was even able to grieve the death of my daughter. So you know, I think my – my mind was a bit of a mess from those traumas, and distress, and pressures, and her loss, and trying to find life as a single parent, and deal with all the trauma, and the legal situation. So, I’m sure there would be inconsistencies in what I said at those times.” (lines 33-41, page 32 of the Transcript for 17 November 2020).

7. With respect to her consultations with Debra Stuart, Psychologist, the applicant explained those consultations as predominantly dealing with her personal and emotional development associated with her relationship in a new marriage and the impact of perimenopausal hormones on her emotional well-being. Her consultations also dealt with the legacies of her childhood, the years of abuse with a partner who exercised coercive control over her, and her grief over the loss of her child.

8. Overall, in these proceedings, the applicant presented as an open and honest witness when accounting for apparent inconsistencies over the period of time from the death of her child in early 2000 to current day. The Tribunal considers that the applicant’s evidence was given truthfully. The Tribunal acknowledges the pressure she would have been under at the time of the offence from her then partner and the legal system, her grief over the loss of one daughter, her incarceration and her separation from the other two daughters.

86. In closing submissions, Counsel for the respondent argued that it would not be possible to be satisfied that the applicant would report to relevant authorities in relation to an injury caused to a child witnessed by her if it cast doubt on her ability in some way. Mr de Bakker’s opinion is clear and unequivocal on this critical issue, namely, that the applicant will definitely be able to assert herself where a child may be at risk.

87. Counsel submitted that it would not be possible to be confident she would report sexual abuse since she did not report her own sexual abuse at the time. Counsel submitted that the Tribunal would be concerned that she would not report sexual or other abuse by a member of the Church that she is anxious to become a minister in, because all of those things would require her to put herself aside and to act solely for the benefit of a child and there is no evidence before the tribunal that that is what she would do. While an expert opinion is not in evidence on this particular issue as a risk factor, the Tribunal has taken into account the report of Ms Mary Ferrett, Psychologist, dated 18 March 2002 (page 26 of R3). The Tribunal acknowledges that this report is almost 20 years old, however, Ms Ferrett drew a correlation between the effects of child sexual abuse on the applicant’s vulnerability to abusive relationships.

88. The applicant attended sessions to gain insights in the effects of the sexual abuse she suffered as a child on her emotional development. Ms Ferrett referred to the correlation between child sexual abuse and impaired personal boundaries and thought that this made the applicant vulnerable to abusive relationships and a sense of powerlessness in the relationship. Ms Ferrett said that the applicant had made a concentrated and committed effort and had gained great insights and lessened her vulnerability to abusive relationships.

89. The applicant’s written evidence that “independence and confidence are important aspects of [her] life and that she is able “to ‘hold [her] own’ in friendships or dealings with strong/dominating people” (paragraph 42 of A3) is corroborated in the statement given by the Second Referee (Exhibit A7). The statement says that the applicant was observed to “have had the courage to confront an older man over his inappropriate behaviour towards her.” The Second Referee also said “I have no doubt that she would act appropriately and courageously to protect children or other vulnerable people in her care.”

90. The Tribunal is persuaded by Mr de Bakker’s opinion on the applicant’s ability to assert herself where a child may be at risk, having addressed her grief and remorse over the death of her youngest daughter, being in a stable marriage and having immersed herself in a supportive community network and being part of the Church.

Conclusion

91. Pursuant to s 28(7) of the Act, the applicant is presumed to be a risk to the safety of children, unless she proves to the contrary. The applicant bears the onus of rebutting the statutory presumption that she is a risk to the safety of children.

92. A key question required to be considered is the capacity of the applicant, when faced with a situation where a child is at risk of harm, to resist any pressure to protect herself or any other person and report the risk to the relevant persons or organisations to ensure the safety of the child involved. In light of the applicant’s history of passive acceptance (a decisive factor in AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69), Mr de Bakker’s evidence on this issue is critical in the Tribunal’s assessment of whether the applicant poses a real and appreciable risk to the safety of children.

91. The Tribunal considers that Mr de Bakker’s report appears to repeat a very small amount of detail relevant to the applicant’s background and history that is set out in the report of Ms Howell. His report demonstrates that he relied upon parts of Ms Howell’s report for some of that information.

92. The benefit of obtaining an independent history includes being able to assess a person’s biography for consistency and to check for any gaps or additional information of relevance to an assessment. In the absence of demonstrating that he has independently obtained, and satisfied himself as to, the relevant facts and events in the applicant’s history, Mr de Bakker’s opinion suffers from the deficiency of an over-reliance upon parts of the histories taken by another expert.

93. In NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921, the Court had to consider whether an expert report was admissible as the genuine opinion of the expert where the report was in largely identical terms to another expert report. The court looked at not only the similarities but the differences between the reports.

94. Mr de Bakker’s report could not be described as reproducing substantial or extensive parts of Ms Howell’s report. His report contains sub-headings “Background”, “Family and developmental history”, “Psychosocial history”, and “Physical and mental health”, all of which also appear in Ms Howell’s report. However, apart from the minor similarities identified by Counsel for the respondent, the information set out under each of the headings in Mr de Bakker’s report is substantially different from the information set out under those headings in Ms Howell’s report.

95. Certainly, it was not contended by Counsel for the respondent that Mr de Bakker’s opinion was the adoption of the work of Ms Howell. It was contended that Mr de Bakker had used Ms Howells’ report as a template for his own report and that he had copied some of Ms Howell’s details about background and history. Mr de Bakker denied these assertions and said that he writes his own reports which invariably use the same sub-headings.

96. This Tribunal considers that Mr de Bakker’s report represents his genuine opinion on the assessment of risk. In arriving at that conclusion, the Tribunal is mindful of the considerations going to the admissibility of expert evidence as referred to by Harrison J in NM Rural Enterprises at [17], citing the matters identified by Austin J in ASIC v Rich [2005] NSWSC 149 at [256], which are, relevantly to these proceedings, the following:

“…[3] that the expert’s opinion must be wholly or substantially based on his or her specialised knowledge;

… [5] that the expert must set out his or reasoning for each opinion expressed;

… [8] that the expert’s opinion and reasoning must be his or her own, and not simply the adoption of the work of someone else;”

99. Mr de Bakker has openly acknowledged that he agreed with all of the predictive and protective risk factors identified by Ms Howell, and that he added an additional factor with respect to the applicant’s grief and remorse, a factor that he considered was pertinent to his assessment of future risk. He gave oral evidence that he did not seek to provide a misleading account of the information in Ms Howell’s report. His evidence on this was accepted by the Tribunal.

100. Mr de Bakker accepted and relied upon Dr. Nielssen’s psychiatric opinion that there was no evidence of a psychiatric disorder. This reliance is understandable since Mr de Bakker is not a qualified psychiatrist and is therefore not in a position to make a psychiatric diagnosis. That does not dismiss Mr de Bakker’s years of experience in the Netherlands in Psychiatry and Emergency Mental Health and in Forensic Treatment Facilities (maximum security prisons) and work in facilities that take offenders with serious psychiatric problems. The Tribunal has regard to the expert’s 30 years of experience in forming his opinion as a forensic psychologist.

101. In NM Rural Enterprises at [22], Harrison J drew on the reasoning in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 that: “the Court should not be required to form a view, or to decide an issue, upon the basis of an opinion that does not withstand objective scrutiny.” Mr de Bakker was cross-examined on several aspects discussed in these Reasons and asserted that he had formed his own independent conclusions. In forming his opinion about the likely recidivism and risk profile of the applicant, Mr de Bakker considered parallel circumstances. He also opined on the critical issue that he was asked to consider, an issue that Ms Howell had not been directed to consider in 2013, namely, whether the applicant would be able to cope with any form of pressure by a third party if a child was in danger and it required her to report to the relevant organisations to ensure the safety of the involved child. He concluded without qualification that the applicant will “definitely” be prepared to assert herself where a child may be at risk and will inform the necessary organisations, and that she represents the same “very low” risk as the general population.

102. In UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49, Pepper J admitted into evidence an expert report despite deficiencies in the report and held that the weight to be accorded to the report was a matter for the Court. His Honour referred to the Court of Appeal decision in Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96, Hodgson and McColl JJA noted, at [66], that:

“It is inherent in the process of preparing many expert reports that the factual basis for the opinion expressed is derived from third-party information. Courts emphasise the necessity that the factual bases of opinions be clearly laid out so that the opinion can be tested. An expert is rarely the source of all the factual information in his or her report. It may be garnered from a party (the typical illustration being a medical report), from empirical investigations (engineering reports for example) or, in the case of valuations, from data relating to the properties about whose value an opinion is to be expressed.”

103. There has been no criticism of the biographical or personal history as set out in Ms Howell’s report or, for that matter, Dr Nielssen’s report. The identified deficiency in Mr de Bakker’s report is, in the Tribunal’s assessment, not so egregious that the report should be rejected and the Tribunal notes that Counsel for the respondent did not object to its admissibility. Accordingly, while Mr de Bakker’s approach to collecting some background and biographical details appears to be less stringent, the Tribunal considers it does not interfere with his conclusions about risk supported by his reasoning.

104. The question for the Tribunal is what weight should be placed upon Mr de Bakker’s opinion evidence.

105. The Tribunal considers that sufficient weight can, and should, be placed on Mr de Bakker’s opinion when deciding the question of future risk. We consider that Mr de Bakker’s opinion is his own. It is based on his specialised expertise and is supported by his stated reasoning. The Tribunal accepts Mr de Bakker’s opinion that the applicant is a very low risk to the safety of children and is the same risk as the general population, namely a very low risk, of not asserting herself when a child is at risk. Accordingly, the Tribunal is satisfied that the applicant has proved on the balance of probabilities that she does not pose a risk to the safety of children.

Section 30(1A) matters on which the Tribunal satisfy itself

106. Additionally, under s 30(1A) of the Act, the Tribunal may not make an enabling order unless it is satisfied that:

1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

2. it is in the public interest to make the order.

107. Turning to the first limb of s 30(1A), the Tribunal has considered the evidence before it. This includes the information given by the applicant in relation to the application as identified above in relation to s 30(1)(k), the applicant’s oral testimony, the written and oral evidence of Mr de Bakker, the information and submissions provided on behalf of the respondent, information and submissions made on behalf of the applicant, and the written and oral evidence of Mr de Bakker.

108. On the basis of the expert evidence that the applicant poses a very low risk and the same risk as the general population to the safety of children; the fact that the disqualifying offence occurred 21 years ago and was a crime of neglect as opposed to active aggression; the rehabilitation of the applicant arising from the positive changes she has made in her life since her incarceration and release in 2004; the period of time that has elapsed since her previous application for clearance during which time she has stabilised her emotional life since marrying in 2013, immersed herself in community life as a confident and independent woman and consolidated her commitment to ministering within the Church for the benefit of the community; the Tribunal is satisfied that the applicant has discharged the onus of satisfying it that she does not pose a risk to the safety of children. The Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the applicant (referred to as “the affected person” in s 30(1A) of the Act) that was not directly supervised by another person while the applicant was engaged in any child-related work.

109. With respect to the public interest test, the Tribunal is satisfied that the making of an order which has the effect of enabling the applicant to work with children is in the public interest on the following grounds:

1. mindful of the beneficial nature of pastoral and community services associated with a religious calling, the applicant’s proposed community service work with the Church is for the public benefit;

2. a working with children clearance will increase the range of community work that the applicant can undertake for the public benefit;

3. the applicant has demonstrated an unwavering commitment towards her involvement in the Church and its ministry within the local community since the time of her disqualifying offence as corroborated by the statements made in the Supporting Affidavit (Exhibit A4) and statements made by the First Referee (Exhibit A6);

4. the applicant is supported by both her Second Referee (Exhibit A7) and Third Referee (Exhibit A8) in her desire to be involved in church-based ministry;

5. the applicant’s right to work in her chosen field is of at least equal importance to the public interest, relying upon the decision of the Tribunal in DCY v Children’s Guardian [2019] NSWCATAD 27;

6. the applicant has insight into her history of passive acceptance and has worked on herself (initially with therapeutic guidance) for seven years to establish herself as an independent and assertive person. She is no longer under the coercive control of another person and is in a stable marriage of more than seven years. She has morally and legally accepted responsibility for her catastrophic failure towards her child, and expressed anguished regret and deep remorse over her tragic death. It is demonstrably clear that the applicant has rehabilitated herself over the past 20 years, and has expressed a desire to make the rest of her time alive worthwhile and of benefit to others (as previously noted in these Reasons).

Orders

110. Accordingly, we make the following orders:

1. The decision of the Children’s Guardian dated 27 September 2019 to refuse to grant the applicant a working with children check clearance is set aside.

2. Pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in 2002 for manslaughter.

3. Pursuant to section 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

04 March 2021 - Coversheet Cases Cited

09 March 2021 - Amendment to text to preserve anonymity

Decision last updated: 09 March 2021