BJB v Office of the Children's Guardian
[2014] NSWCATAD 111
•01 August 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111 Hearing dates: 17 July 2014 Decision date: 01 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: The application for a stay order is refused and dismissed.
Catchwords: Working with Children- Review Application section 27 Child Protection (Working with Children) Act 2012 - refusal of clearance under Child Protection (Working with Children) Act 2012- application for an interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 - Interim Bar previously made by Children's Guardian - whether sufficient risk assessment triggers - factors to consider on stay application. Legislation Cited: Administrative Decisions Tribunal Act 1997;
Child Protection (Prohibited Employment) Act 1998 (repealed);
Child Protection (Working with Children) Act 2012;
Children and Young Persons (Care and Protection) Act 1998;
Civil and Administrative Tribunal Act 2013;
Commission for Children and Young People Act 1998
Family Law Act 1975 (Cth)Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69.
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306.
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111.
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476.
Commissioner for Children and Young People v VR [2012] NSWSC 1385.
Elgammal V Director General, Department of Transport [1999] NSWADT 82
New South Wales Bar Association v Stevens [2003] NSWCA 95.
Polini v Gray (1879) 12 Ch D 438.
Roberts v Balancio (1987) 8 NSWLR 436.Category: Interlocutory applications Parties: BJB (Applicant)
NSW Office of the Children's Guardian (Respondent)Representation: Counsel
P Braine (Applicant)
V Hartstein (Respondent)
K Renshall (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 1410285 Publication restriction: Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
reasons for decision
This is a matter commenced by an application for review filed with the Tribunal on 4 June 2014 under section 27 of the ChildProtection(WorkingwithChildren)Act2012 ('the Act'), brought by the applicant who is referred to in these proceedings by the letters "BJB". An order was made at the commencement of the hearing of the proceedings under section 64 CivilandAdministrativeTribunalAct2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The matter was listed on 17 July 2014 for final hearing and for hearing of the stay application (filed also on 4 June 2014) of the determination of the commencing application referred to in the previous paragraph of these reasons.
The stay application was previously listed on 19 June 2014 before a differently constituted Tribunal. On that day the stay application was stood over to the hearing on 17 July 2014 because neither party had filed any evidence and because it was opposed by the respondent.
On 16 July 2014, that is the day before the scheduled hearing, the Solicitors for the applicant who had only been recently instructed by the applicant, sent a letter to the Tribunal Registry advising that the applicant would seek an adjournment of the final hearing and provided their Notice of Representation. In that letter the solicitor stated that their client, however, proposed "to press the Stay Application". The solicitor appropriately gave notice at the same time to the respondent's solicitor. Prior to this juncture the applicant was unrepresented.
The respondent did not oppose the adjournment but did oppose the application for a stay. The only witness for the respondent, who was required for cross examination, Tracey Crawcour, was unable to be present at the hearing on 17 July 2014. There were sound reasons for the consent to the adjournment.
The review matter therefore has been adjourned by consent to 1 and 2 September 2014 for hearing. The additional evidence, if any, to be relied upon is to be filed and served by 25 August 2014.
Access was granted, including photocopy access to the legal representatives, at this time to material produced under summons from the Department of Family and Community Services which subsequently became an Exhibit A1 in the stay application.
The remaining issue for the Tribunal before the adjourned hearing date is the application for the stay.
It was submitted by the applicant that he bore the onus to satisfy the Tribunal that the operation of the orders should be stayed. This submission is accepted.
The Evidence relied upon for the Stay Application
The application for a stay was heard on 17 July 2014 with the evidence comprising:
i)A folder of documents filed by the applicant on 2 July 2014;
ii)A Bundle of Documents filed by the respondent Children's Guardian on 11 July 2014;
iii)Documents produced under Summons by the Department of Family and Community Services on 14 July 2014 with documents referred to in the parties' submissions tagged;
iv)A chronology prepared by the respondent's counsel.
The Tribunal also received at the hearing written submissions, written by counsel for the applicant. There was also a list of documents provided to the Tribunal which listed all the documents included in BJB's folder of material. There were some additional documents to those listed, which are contained in the folder filed by BJB on 2 July 2014 and were read by the Tribunal.
The applicant was permitted to give some limited oral evidence and was also briefly cross-examined on the stay application. The Tribunal was assisted by oral submissions.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. Due to the nature of interim proceedings there are limited uncontested facts which are able to be relied upon, but contentious matters of fact will have to await determination after the final hearing occurs on 1 and 2 September 2014.
The Relevant Legal Principles
The Act came into force on 15 June 2013.
The Children's Guardian received an application dated 20 November 2013 for a Working with Children Check clearance from the applicant BJB which led to identification of records that triggered a risk assessment: see Part 3, Division 3 (sections 14, 15, 16, 17) of the Act.
The applicant requires a Working with Children Check clearance because he is an authorised carer (and so is his wife) under the ChildrenandYoungPersons(CareandProtection)Act1998, therefore he is engaged in child-related work as defined in section 6 of the Act. A worker must not engage in child-related work unless he holds such a clearance: section 8 of the Act. The applicant cannot continue as and cannot reside with an authorised carer without a clearance: section 10 of the Act.
The objects of the Act are set out in section 3 which provides:
"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."
The paramount principle to be applied in decisions under the Act is contained in section 4 which provides:
"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."
"Children" is defined in section 5(1) of the Act to mean "persons under the age of 18 years."
The matters referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian are those matters referred to in clause 1 (6) and clause 2 (a). Either one of these matters is sufficient to trigger a risk assessment requirement under section 15 (1) of the Act, because of the requirement in section 14 of the Act, which is as follows:
"A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person." (Emphasis added)
It is therefore apparent that if one of those matters referred to in Schedule 1 of the Act is established then there is a requirement for an assessment.
Clause 1(6) of Schedule 1 of the Act provides:
"A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children."
Clause 2(a) of Schedule 1 of the Act provides:
"Findings of misconduct involving children
A person has been the subject of a finding by a reporting body that the person engaged in the following conduct:
(a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child,
(b) any serious physical assault of a child."
The application for a clearance was refused on 2 June 2012 by the Children's Guardian. Prior to the refusal of the application an interim bar was issued on 20 March 2014. The review of an interim bar by the Tribunal can only be undertaken if the interim bar has been in force for more than 6 months: section 27 (3) of the Act.
The present hearing therefore before the Tribunal is pursuant to an application for review under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the AdministrativeDecisionsReviewAct1997 does not apply to this decision: see section 27 (7) of the Act.
Pursuant to section 27 (4) of the Act "the applicant must fully disclose to the Tribunal any matters relevant to the application."
The provisions Division 2 of Part 3 of Chapter 3 of the AdministrativeDecisionsReviewAct1997 apply to such a review. That is, the provisions in that legislation referring to a stay of the decision under review or otherwise affecting the operation of the decision under review are applicable.
Section 60 of the Administrative Decisions Review Act 1997 provides:
"Operation and implementation of decisions pending applications for administrative review
(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order."
In other words the review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the AdministrativeDecisionsReviewAct1997 and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.
Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 AdministrativeDecisionsReviewAct1997;ElgammalvDirectorGeneral,DepartmentofTransport [1999] NSWADT 82.
The Tribunal is charged to decide what "the correct and preferable decision is having regard to the material then before it", which material may not have been before the Children's Guardian: section 63 AdministrativeDecisionsReviewAct1997. That decision in this matter will not be made until the time of, or immediately after, the final hearing of the application.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the ChildProtection(WorkingwithChildren)Act2012 ('the Act'): section 36 of the CAT Act.
The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the EvidenceAct1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38, and 67 of the CAT Act. Procedural fairness and other aspects of natural justice apply to these proceedings where the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: CommissionforChildrenandYoungPeoplevFZ [2011] NSWCA 111; RobertsvBalancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has practice and procedure prescribed by reason of Schedule 3 of the CAT Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the CAT Act.
The Issues
The broad issue is simply whether an order should be made effectively staying the operation of the final decision of the Children's Guardian on 2 June 2014 not to grant a Working with Children Check clearance.
The applicant gave undertakings in proceedings before the Administrative Decisions Tribunal on 25 May 2009, which he again proffers to this Tribunal in relation to the stay application, as conditions which he is prepared to accept as conditions for a stay of the operation of the refusal to grant him the clearance. The proceedings ending in 2009 were brought by the applicant against a decision by the Director-General, Department of Community Services (now the Secretary Department of Family and Community Services) to suspend the applicant's carer authorisation. Proceedings of that nature under section 245 of the ChildrenandYoungPersons(CareandProtection)Act1998 are heard in this Tribunal. A copy of those undertakings is contained in the Folder of documents provided by the applicant filed 2 July 2014 and do not need to be reproduced in these reasons but have been considered.
The applicant is prepared to give additional undertakings to those given in the Administrative Decisions Tribunal in 2009. It is observed that the parties to those proceedings as recorded on the document were the applicant and the Director-General, Department of Community Services. The Tribunal was informed by both parties that those undertakings ultimately resolved those proceedings.
The material produced by the Children's Guardian contains a consent order which was made on 10 September 2009 withdrawing and dismissing the application and a notation which stated that the applicant's authorisation as a carer for the children then in his care, one of whom is under the age of 18 today, will continue. That child continues to be solely in his wife's care, initially because of the interim bar but now because of the refusal by the respondent to grant the clearance. There was no record in the consent order as to the acceptance of undertakings, so it may be that those undertakings either separately continued, or were entered into again in a less formal way. It is apparent that the applicant has considered that those undertakings have continued to apply as conditions of his approval as an authorised carer.
Conditions of authorised care may be imposed pursuant to section 137 of the ChildrenandYoungPersons(CareandProtection)Act1998 and clause 34 of the ChildrenandYoungPersons(CareandProtection)Regulation2012. If the applicant is not complying with those undertakings then it is up to the Department of Family and Community Services to take action about those matters.
Reliance was initially placed by the applicant upon section 30 (2) of the Act as being the source of power to enable a stay of the operation of the determination by the Children's Guardian. During the course of submissions it was accepted that when hearing an application under section 27 of the Act the operation of the decision being reviewed may be stayed by reason of section 60 of the AdministrativeDecisionsReviewAct1997. This is because section 30 (2) of the Act specifically refers to section 28 or 29 applications only and not to section 27 applications.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In CommissionerforChildrenandYoungPeoplevVR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation CommissionforChildrenandYoungPeopleAct1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see CommissionforChildrenandYoungPeoplevV [2002] NSWSC 949; 56 NSWLR 476, and RvCommissionforChildrenandYoungPeople [2002] NSWIRComm 101. Justice Simpson held in CommissionerforChildrenandYoungPeoplevVR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
It is considered doubtful that the Tribunal, in the circumstances of the application before it brought by BJB, could lawfully attach conditions effectively to the grant of a clearance, as proposed, which would be permitted by the legislation if the Tribunal decided otherwise it would be appropriate or desirable to grant a stay.
Reliance was also placed by the applicant upon section 30 (1) of the Act matters as relevant to the stay application. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it appears appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. That would fulfil the requirements of both sections, taking into account the nature of the administrative review.
The other considerations which are required to be taken into account are those set out in section 60 (3) of the AdministrativeDecisionsReviewAct1997, which are:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: PolinivGray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances.
It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: NewSouthWalesBarAssociationvStevens [2003] NSWCA 95 at [83].
Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: NewSouthWalesBarAssociationvStevens (supra) at [90]-[104].
In NewSouthWalesBarAssociationvStevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:
"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in BryantvCommonwealthBankofAustralia (1996) 70 ALJR 306 at 309 where his Honour said:
"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."
[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."
It is also of relevance in this particular application that a final determination will be made relatively soon, that is, on 1 and 2 September 2014. Therefore, any stay, if granted, will be for a relatively short period of time. The prospects of success of that application on a final basis will depend in part, if not significantly, on any evidence in addition to the material already provided to the Children's Guardian and to this Tribunal. On the other hand, a refusal of the application for a stay will maintain a situation which has been in place since the Interim Bar was notified by the Children's Guardian on 20 March 2014. That is, the situation which has been in existence for about 4 months.
Consideration of the evidence
It is obvious that there are factual matters are in contention between the applicant and the Children's Guardian. The Tribunal is therefore cautious in its consideration of the evidence and will not reach a concluded view until after hearing further evidence including cross examination and submissions in the final hearing.
Dr Christopher Lennings, a respected psychologist whose qualifications are not in issue, provided a report dated 14 November 2008 to the Department of Community Services upon which the applicant relies in his folder of documents. The same report is found in the material provided by the Children's Guardian. It was provided to the Children's Guardian by the Department of Family and Community Services (as it is now known). This report was an assessment of risk posed by the applicant to the 2 particular children in his care at the time of the proceedings in 2009 before the Administrative Decisions Tribunal. In submissions Mr Braine and Ms Hartstein both referred to this report. This report was provided to the Children's Guardian on or about 18 February 2014 in material provided pursuant to section 31 of the Act. Included in the section 31 material was an update report dated 2 December 2008 by Dr Lennings. The applicant proposes that Dr Lennings perform a further update report for the purposes of this current application.
Further information provided to the Children's Guardian pursuant to section 31 of the Act includes entries from the NSW Police COPS information which Mr Braine urged should be viewed with caution, or that the Tribunal should be cautious in relation to placing any weight upon those recorded events. To the extent that those documents record interactions between the police and the applicant, or interactions between the police and other persons that are relevant to the stay application the entries are informative. It is accepted that not all entries are accurate, and in a final hearing the applicant may wish to provide evidence to explain or contradict any of those entries. It is noted that the applicant pleaded guilty to offences of violence according to the records produced by the Local Court. In any event, the applicant agrees with a number of the serious offences of violence which have been reported upon in the police records and to which reference will be made in considering the matters under section 15 and section 30 of the Act. The COPS entries have some weight but have been treated with the caution referred to earlier.
The matters to be considered on the stay application are now each listed under the following subheadings.
The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar
The applicant has been convicted of offences, but is not a disqualified person.
The offences with which the applicant the applicant was charged and subsequently convicted are offences of violence and domestic/personal violence and are referred to in the material produced by the respondent and to which the applicant does not raise objection. They are also referred to in the report of Dr Lennings, upon which those the applicant and respondent rely. Since the rules of evidence do not apply in these proceedings the restrictions imposed by section 91 of the EvidenceAct1995 do not apply to the consideration of the convictions: section 38 of the CAT Act.
The applicant was convicted of 2 counts of common assault under section 61 of the CrimesAct1900 on 26 August 2003 and sentenced to a section 9 bond Crimes(SentencingProcedure)Act1999 for 2 years under the supervision of the probation and parole service. This offence carries a maximum sentence of 2 years imprisonment.
The victims in this offence are the sister-in-law of the applicant and her sister. It was alleged that the applicant kicked in the screen door and a wooden door and entered the first victim's home. He allegedly pushed her to the ground. When she told him where the sister-in-law was he grabbed her by the hair and told her that she was coming with him. He dragged her to the front door and walked with her to where the sister-in-law was located with her five children. The applicant was alleged to have entered the sister-in-law's residence grabbed her phone from her and threw it at the video recorder causing the phone cord to disconnect from the handset and damaged the video recorder. The applicant was arrested and taken into custody and charged with two counts of common assault and three counts of malicious damage. The applicant admitted, to the police, kicking in the door but denied when he was arrested assaulting either victim. The applicant was subsequently convicted on 2 counts of common assault.
The applicant was convicted of 2 counts of assault occasioning actual bodily harm under section 59 (1) of the CrimesAct1900 on 22 June 2004 for which he was given a suspended sentence of 16 months imprisonment, suspended on entering a bond under section 12 Crimes(SentencingProcedure)Act1999 and supervision by the probation and parole service. The maximum sentence under this provision is 5 years imprisonment.
The victim is the applicant's wife. The applicant became angry after the victim returned from her solicitors and gave the applicant some papers. The victim then received a telephone call from the Department of Community Services (as it then was). The applicant picked up a wooden tray and threw it at his wife's chest striking her and causing bruising. She went to her bedroom and the applicant followed her, subsequently punching her with a closed fist to the right of her face. The wife suffered a headache, lump to her head, bruising and swelling to her right forearm. Later that same day the applicant's wife returned home believing him to have left the home. The applicant entered through the back door. His wife went next door to a neighbour's house to call the police. The applicant followed her and knocked on the neighbour's door. The wife walked into the driveway to talk to the applicant. As this occurred the wife's mother reversed her car in the driveway calling for the wife to leave at which time the applicant became angry. The wife walked back towards the neighbour's house when the applicant grabbed her by the head and slammed her head into a brick wall. The wife fell to the ground and the applicant kicked her in the stomach. Neighbours came to the aid of the wife and the applicant left. An ambulance was called. The wife suffered a broken blood vessel in one eye, a haematoma on her forehead and a cut. There was also a small bruise on her stomach and a number of scratches and grazes on her arms.
The applicant was convicted of another assault occasioning actual bodily harm offence on 4 November 2009 for which he received a suspended sentence of imprisonment for 12 months on entering a section 12 bond Crimes(SentencingProcedure)Act1999 for 12 months. This offence related to an assault upon the 18-year-old former foster daughter in the presence of a number of students who were her dance pupils. The assault occurred on 15 September 2008. The applicant submitted in relation to this matter: "The alleged assault on his former foster daughter occurred at a time when she was no longer resident in the home and living with her then boyfriend and was over the age of 18 years. See COPS event E34698770. The applicant accepted the serious nature of the assault and pleaded guilty and was placed on a bond."
This was a serious assault upon a former foster child. The applicant was alleged to have hit and pushed the young woman into a garden bed and when she was on her back, he straddled her and punched her to the head with both his right and left fists a number of times (not exceeding 5 punches). Hospital documentation revealed that there was swelling and bruising to the young woman's right ear and head and the presence of superficial scratch marks to her neck.
The applicant was convicted of stalk, intimidate, intend to cause fear of physical/mental harm under section 13 (1) Crimes(DomesticandPersonalViolence)Act2007 for which he received a sentence of a section 9 Crimes(SentencingProcedure)Act1999 bond for 2 years. This offence occurred when the applicant became involved in an argument with his wife in the presence of the children on 8 October 2008 after returning from St John of God Hospital. Also on 8 October 2008 the applicant followed his wife and 2 of his foster children in a car and became involved in a domestic violence incident with his wife. During this incident there was frightening and dangerous driving behaviour on the part of the applicant resulting ultimately in the applicant grabbing the driver's window and he reefed it from the car door causing glass fragments through the inside of the car and onto the road in the presence of the children. The applicant was arrested and taken to the police station.
It is apparent that these offences fall within the description contained in clause 1(6) of Schedule 1 of the Act. The applicant did not contend to the contrary.
The respondent regarded these matters as sufficient to cause an assessment requirement: see Part 3, Division 3 (sections 14, 15, 16, 17) and schedule 1 of the Act. That is established on the uncontested evidence. In those circumstances, having regard to section 15 (1) of the Act, the Children's Guardian must conduct a risk assessment. It did and that assessment is in the material provided to the Tribunal.
The respondent also had regard to an incident reported to have occurred on 22 November 2003. An AVO had been made in relation to the 14-year-old foster child in the applicant and his wife's care. The applicant had an argument with his wife in front of the children. He kicked and broke a chair and broke all the presents that had been purchased for that child for Christmas. The applicant wife tried to leave the home with the children but he prevented her from using the family car, forcing her to flee on foot. The applicant's wife signed an agreement the following day that she would not allow the applicant back in the home. On 2 January 2004 the applicant phoned the caseworker and advised he had been in the home all along. The children were removed from the applicant and his wife's care that day.
It is also stated in material produced by the respondent that the applicant became involved in a verbal domestic violence incident with his wife while the children were present on 18 November 2008. There was an apprehended violence order in place and the incident was reported by the applicant's wife. The applicant was admitted into Nepean Mental Health Hospital after this incident.
The applicant disputes the allegation that he sexually abused the 14-year-old foster daughter in his care in 2003. This allegation was investigated and as a result of being "confirmed" the foster daughter was removed from the applicant's care. The alleged victim's 3 siblings were also removed from his care. The proceedings in the Administrative Decisions Tribunal finalised on 11 March 2004 (with written reasons on 3 June 2004) concerned these allegations and the removal of the children. The alleged victim's 3 siblings were restored to the care of the applicant and his wife. It was submitted by the applicant that the findings made by the Administrative Decisions Tribunal were that "in all likelihood the abuse never happened." The applicant was not charged with any criminal offences arising from these allegations.
According to the material provided to the respondent the Department of Community Services (as it then was), concluded that the allegations of sexual abuse were "confirmed" according to their Secondary Risk of Harm Review, and that the Victims Compensation Tribunal concluded that the sexual assault occurred with compensation reported to be $25,000 awarded on 5 April 2006.
A review by the Department of Community Services (as it then was) of the category 1 notification to the Commission for Children and Young People, instigated at the request of the applicant and his wife, found on 4 August 2006 that the sexual abuse allegations were not sustained due to insufficient evidence.
It can therefore be seen that at varying points in time a finding has been made by a reporting body that the applicant engaged in sexual misconduct with a child including the alleged grooming of a child. At other and mostly later times those findings have been determined to have been not sustained or as likely to have never happened. It is not possible or necessary for the purposes of these interim proceedings for a finding to be made by the Tribunal about this issue, since it is clear that the agreed matters are sufficient to trigger an assessment requirement. The allegations and the subsequent investigations are therefore equivocal and with fairness to each party do not really progress the matter. Accordingly, no weight is placed upon this matter for the purposes of the interim stay application.
The convictions of the applicant are for serious offences involving violence. The victims of that violence are all women and one of whom was a former foster child, over the age of 18 at the time of the offence.
The applicant accepts that the offence in relation to the former foster child is a serious offence. Such an offence, if it were an isolated offence, would be a serious and concerning matter. There are other offences which are also very serious and concerning.
The period of time since those offences or matters occurred and the conduct of the person since they occurred
The period of time since the offences and matters occurred vary. The earliest matter occurred in 2003. The latest offence occurred in 2008 and the applicant was convicted in 2009. That is, the latest conviction occurred nearly 5 years ago.
The age of the person at the time the offences or matters occurred
At the time of the offences and matters referred to the applicant was aged 36 through to 42 years of age.
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
The ages of the victims varied. The only alleged child victim is in relation to the allegations concerning the 14-year-old former foster child, who is alleged to have been sexually abused by the applicant. That alleged victim suffers from frontal lobe brain damage and had reportedly been sexually abused by her father prior to coming into care. No weight is placed upon this alleged conduct for the purposes of these interim proceedings.
The victims of the applicant's offences have all been females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship.
The victim of one of the offences was the applicant's former foster daughter who was vulnerable. It was conceded by the applicant that this is highly inappropriate behaviour.
During the course of the offences of violence there were witnesses who were vulnerable children.
The children witnessing the violence perpetrated by the applicant were vulnerable, particularly the children who were dance students of the former foster child who was aged 18 at the time of the offence for which he was convicted in 2009.
The foster children present at the time of the domestic violence offences committed by the applicant against his wife are vulnerable children. According to Dr Lennings' report the brief history of the children's family of origin is that they were physically and sexually abused, that their natural father had both psychosis and organic brain damage and their mother was diagnosed with schizophrenia. The foster child who is now under the age of 18 has been diagnosed with autistic spectrum disorder. Given their past history these children are considered vulnerable to and likely to be adversely affected by additional incidents of violence to those which they reportedly experienced in their family of origin.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The applicant was aged 41 at the time of the incident in 2008 and the victim was aged 18. That appears to be the largest age difference between the applicant and the victims. The largest difference is therefore 23 years.
The victims of the applicant's offences have all been females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship.
The victim of one of the offences was the applicant's former foster daughter. It was conceded by the applicant that this is highly inappropriate behaviour.
The incidents which occurred between the applicant and his wife were apparently witnessed by the two male foster children in their care.
The applicant has been convicted of offences against his sister-in-law and her sister. Children were apparently present at the time of the offences.
It would appear that the difference in age is not a major factor in the applicant's offending behaviours. The more salient distinguishing feature is that the applicant has had difficulty regulating his behaviours in the presence of females with whom he has had a personal relationship. The applicant has behaved inappropriately in the presence of young children. The effect upon those young children of his frightening behaviour is clearly something which the applicant should have had regard to, when he committed those offences.
Whether the person knew, or could reasonably have known, that the victim was a child
The victims of the offences were not children as defined in the Act: section 5(1) of the Act.
It is stated by Dr Lennings in his report dated 14 November 2008 at [75] that he pointed out to the applicant that in Dr Lennings' view the former foster daughter who the applicant assaulted, although she was over the age of 18, was in his view the applicant's child "irrespective of her age and that he needed to exercise responsibility in his behaviour and attitude towards her." Clearly, this refers to the relationship which existed rather than the age of the victim.
The person's present age
The applicant is currently 47 years of age.
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The offences for which the applicant has been sentenced are serious offences of violence which have been partially explained by his adverse reaction to stress, change of medications and his mental health.
The applicant has provided a number of references from friends and acquaintances which attest to his good character from their knowledge of him. They have minimal weight because they are expressed in very general terms. They are informative however of the applicant's capacity to behave in an appropriate manner when he chooses to so behave.
It is submitted on behalf of the applicant that there is no criminal history since the last offence in 2009. This is self-evident. It would appear from the objective material that there has not been a recurrence of events which led to the historical offences.
The applicant relies upon his completion of courses in 2009. One course called "Enough is Enough" which addressed stress and anger management, he completed on 26 August 2009. Additionally, the applicant has attended a course completed on 17 August 2009 in relation to "Engaging Adolescents." The letter dated 6 September 2009 which accompanied the certificate from "Enough is Enough" addressed to the Guardian ad litem for the children in the proceedings in the Administrative Decisions Tribunal, referred to 2 occasions of violence. That places some doubt upon the level of disclosure given by the applicant when completing that anger management course.
The applicant has provided further medical evidence than that which was available before the risk assessor for the Children's Guardian. In that material it is stated that the applicant has not displayed aggressive impulses or behaviour since 2009.
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
There is little current opinion evidence about whether the applicant is likely to repeat his offences or conduct. The report from Dr Lennings is not current, but will be updated for the purposes of final hearing.
There are a number of risk factors which have been identified. Both parties made submissions concerning Dr Lennings' report dated 14 November 2008 to which he added a short additional update dated 2 December 2008.
It was submitted by the applicant that Dr Lennings' assessment is that the children currently in the care of the applicant and his wife are vulnerable children who are likely to suffer more from the absence of the applicant than they are to suffer from any verbal outbursts: see Dr Lennings' report dated 14 November 2008 at [113]. Additionally it was submitted that Dr Lennings' view was that the applicant does not represent an ongoing high-level risk to the children and the risk he does pose can be managed by focused psychotherapy and various parenting programs as recommended by Dr Lennings: see ibid., at [115].
It was submitted on behalf of the respondent that Dr Lennings report states that there is a "moderate further risk of harm to the children, primarily a function of [the applicant's] lack of insight into how his explosive behaviour and rigid obsessional behaviour can impact upon the children's development should they choose to defy him at some time.": See ibid., at [112].
The respondent also submitted that there are concerns expressed by Dr Lennings about the applicant's "explosive nature" and that his aggression is now "a pattern of such behaviour": see ibid., at [106].
Overall, there is information which is identifies that the applicant does pose a risk to children. It was submitted that the risk must be "a real and appreciable risk": see BYRvChildren'sGuardian [2013] NSWADT 310, at [38], [39] ; AYUvNSWOfficeoftheChildren'sGuardian [2014] NSWCATAD 69, at [37], [38]; CommissionforChildrenandYoungPeoplevV [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no relevant definition of that term in the Act to which the Tribunal was referred.
The Act is part of a suite of legislation designed to protect children. The Children's Guardian who is responsible for oversight of the Act is appointed under section 178 of the ChildrenandYoungPersons(CareandProtection)Act1998. There is an offence created in section 227 of the ChildrenandYoungPersons(CareandProtection)Act1998 which is as follows:
"Child and young person abuse
A person who intentionally takes action that has resulted in or appears likely to result in:
(a) the physical injury or sexual abuse of a child or young person, or
(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or
(c) the physical development or health of a child or young person being significantly harmed,
is guilty of an offence.
Maximum penalty: 200 penalty units."
There is a body of jurisprudence concerning the interpretation of the paramountcy provision in section 9 (1) of the ChildrenandYoungPersons(CareandProtection)Act1998. This provision is in similar terms to the paramountcy provision in section 4 of the Act.
In all decisions made under the ChildrenandYoungPersons(CareandProtection)Act1998 concerning a particular child, the safety, welfare and well-being of the child must be "the paramount consideration" and so it has been accepted as well settled that an order removing a child from the care of his or her family should be made if there is an "unacceptable risk" of harm to the child: see MXSvDepartmentofFamilyandHumanServices(NSW) [2012] NSWDC 63, at [31]; MvM [1988] HCA 68; 166 CLR 69, at [25].
The concept of "unacceptable risk" of harm to a child is applied regularly in Children's matters under the FamilyLawAct1975(Cth). This follows from the decision of the High Court in MvM [1988] HCA 68; 166 CLR 69.
The definition of "abuse" in section 4(1) of the FamilyLawAct1975(Cth) is as follows:
""abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child."
The final hearing of this matter may further address which aspects of "abuse" may be relevant in the consideration of section 4 of the Act.
For present purposes, it is sufficient to observe that the evidence establishes there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. That risk of harm may also constitute child abuse as it is defined in various pieces of legislation where the protection of children from harm is paramount.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYUvNSWOfficeoftheChildren'sGuardian [2014] NSWCATAD 69, at [34]; CommissionforChildrenandYoungPeoplevFZ [2011] NSWCA 111, per Young JA at [61] and RvCommissionforChildrenandYoungPeople [2002] NSWIRComm 101 at [130].
On an interim basis, without the benefit of current expert risk assessment, the risk assessment conducted by the Office of the Children's Guardian is the most comprehensive and current assessment available to the Tribunal. In that risk assessment it was identified that the remedial courses undertaken by the applicant offer limited scope in addressing his previous offending behaviour. There was limited current information provided by the applicant concerning the degree to which he has managed his mental health concerns, insight and personal development regarding his mental health and anger issues. His engagement with the Children's Guardian assessment process identified that he appears to have minimal child focus. The Tribunal refers to the additional evidence provided by the applicant to the Tribunal which adds to the information already assessed under the relevant subheadings which follow.
Since the jurisdiction of the Tribunal is protective the assessment should err on the side of caution if there is a deficiency in information which may mitigate the risks to children in an interim decision. It is to be emphasised that the paramount principle in section 4 of the Act is applicable. That principle, although not the only factor in operation, specifically provides that the protection of children, particularly from child abuse, is paramount.
Any information given by the applicant in, or in relation to, the application
The applicant was reluctant to engage with the Office of Children's Guardian apparently stating to them on or about 21 March 2014 that he will not provide any more information for the risk assessment then being conducted, in order to progress a decision bar outcome so he may then appeal that outcome to the Tribunal and then to the Supreme Court.
In a letter dated 2 June 2012 from the Office of the Children's Guardian it is recorded that the applicant was given an opportunity to submit further supporting material to assist in his risk assessment, when he was advised that there was a proposed refusal of his application on or about 22 April 2014. The material which was sought was information which could mitigate the risks identified. No further material was supplied.
The applicant has an obligation to fully disclose to the Tribunal any matters relevant to the application: section 27(4) of the Act.
The applicant has filed the bundle of documents received by the Tribunal on 2 July 2014. Directions have been made for the provision of further evidence for the hearing scheduled. That will assist the Tribunal at the final hearing.
Any other matters that the Children's Guardian considers necessary
The matters considered by the Children's Guardian also included the professional references provided by Dr Tait and Dr Pusic. It was considered that both references appeared minimal in addressing the risks posed by the history of the applicant and the authors did not return calls allowing the reference to be verified.
Dr Pusic, the applicant's psychiatrist, has provided a report dated 26 June 2014 contained in the applicant's folder of documents. In that report the psychiatrist states that he has seen the applicant on 6 occasions over the last 18 months and last saw him on 19 June 2014. According to the psychiatrist the applicant maintains pharmacotherapy on antidepressant and mood stabiliser medication and has received cognitive behavioural psychotherapy. Dr Pusic states that the applicant "has recently been placed under considerable stress by the Office of the Children's Guardianship's (sic) decision that he not reside with his fostered children. This is despite the fact that the two children concerned have been under the care of [the applicant's] wife and himself for 15 years... He has not displayed aggressive impulses or behaviour since his difficulties in early March 2009. His prognosis is excellent."
The respondent has required Dr Pusic for cross examination at the final hearing. This later report was not available to the Children's Guardian at the time of the refusal.
The interests of any persons who may be affected by the determination of the application
The interests of the persons who may be adversely affected have been identified by the applicant as not only himself, but also the two sons who have been in the care of the applicant and his wife for a considerable period of time.
The respondent submits that there is no urgency in respect of the stay sought by the applicant because of the comments made by the applicant in an interview with employees of the Department of Family and Community Services on 2 July 2014 contained in Exhibit A1. The effect of his comments are that if the operation of the order continues, he will wait out the operation of the decision until the child is 18 years of age. The arrangements the applicant has in place at present are that he is not staying at the former matrimonial home in which his wife and the child reside. The applicant visits the home regularly.
The applicant agreed in cross examination that this was still his position.
It is accepted that the continuation of the operation of the final decision of the Children's Guardian on 2 June 2014 not to grant a Working with Children Check clearance will have an adverse effect upon the interests of the applicant. There will also be negative consequences for the interests of the applicant wife and the two sons who reside with her.
However, if a stay is not granted the review of the refusal to grant the clearance will be determined at a hearing to be conducted on 1 and 2 September 2014. This is for a relatively short period of time.
If a stay of the operation of the final decision of the Children's Guardian on 2 June 2014 not to grant a Working with Children Check clearance is granted the applicant will be able to work with any children in any child related work. It was submitted by the respondent that this will have an effect upon the safety of all children, not just the children who reside with the applicant's wife. The applicant has indicated that his application for review is not so that he can work with any children, but to enable him to live in the same home as his wife and their two foster sons.
The applicant has submitted that conditions similar to the undertakings that he gave to the Administrative Decisions Tribunal would be appropriate and acceptable to him if the Tribunal were minded to grant a stay. It may be unnecessary to consider the substance of those conditions unless a stay is otherwise considered appropriate and desirable.
Any submission made by or on behalf of the administrator who made the decision to which the application relates
The Children's Guardian made extensive oral submissions opposed to the grant of a stay.
The public interest
This consideration was the subject of submissions concerning the weight to be accorded to the public interest in considering whether to grant a stay of the operation of the final decision of the Children's Guardian on 2 June 2014 not to grant a Working with Children Check clearance.
The respondent submitted that the public interest is the most heavily weighted of the factors.
The applicant submitted that the public interest is not to be given any greater weight than the interests of the child currently in the care of the applicant's wife.
Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: NewSouthWalesBarAssociationvStevens (supra) at [90]-[104].
It has also been said that the overriding principle in any stay application is that of upholding the interests of Justice in the particular circumstances: ibid.
The applicant will have his opportunity to present further evidence and make additional submissions concerning the grant of a clearance on the hearing of this matter. The Children's Guardian will have the opportunity to see that evidence and to test those matters which are deemed necessary to test. Not granting a stay therefore will not be contrary to the interests of Justice in the circumstances of this case.
Failure to grant a stay of the operation of the decision of the Children's Guardian not to grant a Working with Children Check clearance will not render the review of the Children's Guardian decision futile. No submission was made to the effect that it would. Clearly, it will inconvenience the applicant for a period of time but that is not the only factor for consideration.
Determination
The discretion to grant a stay is to be exercised in accordance with the considerations referred to in these reasons. There is no requirement for a stay to allow the applicant to present his case and it would appear that he deliberately chose not to present material to the Children's Guardian in order to progress a review application.
The applicant accepts that the offence in relation to the former foster child is a serious offence. Such an offence, if it were an isolated offence, would be a serious and concerning matter. There are other offences which are also very serious and concerning.
The victims of the applicant's offences have all been females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship.
The victim of one of the offences was the applicant's former foster daughter. It was conceded by the applicant that this is highly inappropriate behaviour.
The foster children present at the time of the domestic violence offences committed by the applicant against his wife are vulnerable children.
In all of the circumstances, it is assessed that it is not desirable to grant a stay having regard to all the factors set out previously in these reasons. The decision by the Children's Guardian was based upon an assessment of risk which at this point of the proceedings is not accepted as inappropriate. That decision was made on the basis of the evidence before the Children's Guardian at the time.
The applicant determined that he would not provide any additional information to the Children's Guardian to assist further with the assessment of risk despite it being in his interests and arguably also his obligation to do so.
Since then, the Tribunal has had the benefit of further evidence and extensive submissions. The risk to the safety of children means that the public interest is to be accorded significant weight. The protection of the public, and in particular that section of the public comprised of children entitled to be protected from being exposed to child abuse is the paramount concern. It is not desirable or appropriate to grant the stay sought by the applicant. The decision not to grant a stay is consistent with the observations of Justice Kirby in BryantvCommonwealthBankofAustralia (1996) 70 ALJR 306 at 309 referred to earlier in these reasons.
Accordingly the application for a stay shall be refused and dismissed.
Orders
The order of the Tribunal is:
1) The application for a stay or interim order filed 4 June 2014 is refused and dismissed.
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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
Decision last updated: 01 August 2014
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