BKG v Children's Guardian

[2015] NSWCATAD 75

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BKG v Children’s Guardian [2015] NSWCATAD 75
Hearing dates:	24 November 2014
Decision date:	15 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Andrews, Senior Member on 24 November 2014 J McAteer, Senior Member
Decision:	(1)The decision of the Children’s Guardian dated 7 July 2014 to refuse to grant the applicant a Working with Children check clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children - criminal history – serious offences – alcohol factor in offending – rehabilitation of offender
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111
Category:	Principal judgment
Parties:	BKG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogarty (Applicant) R Lee (Respondent) Solicitors: L Rogers Solicitor (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410366
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in this Tribunal hearing or in the proceedings which is likely to identify those persons.

Reasons for Decision

1. The Applicant in these proceedings is referred to as "BKG”. BKG is the applicant's pseudonym used in these proceedings.

2. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 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.

3. This matter was heard by the Tribunal on 24 November 2014 by Senior Member Andrews. The Senior Member has since become unavailable to complete the matter. The President of the Tribunal has replaced the Senior Member for these proceedings with myself, pursuant to section 52 of the Civil and Administrative Tribunal Act 2013 which provides:

52 Reconstitution of Tribunal during proceedings

(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member:

(a) becomes unavailable for any reason, or

(b) ceases to be a member, or

(c) ceases to have a qualification required for participation in the proceedings.

(2) The President may not replace a member unless the President has first:

(a) afforded the parties an opportunity to make submissions about the proposed replacement, and

(b) taken any such submissions into account.

(3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

4. The Divisional Registrar wrote to the parties concerning the proposed reconstitution in March 2015. On 1 April 2015, in the absence of any submissions to the contrary by the Parties, the President replaced the Member in this case and the Tribunal was reconstituted. I have had regard to the matters referred to in section 52 (3) of the Civil and Administrative Tribunal Act 2013 in my consideration of the matter. In this regard I have listened carefully to the entire 290 minutes of the oral evidence and submissions from 24 November 2014 in addition to having regard to all the evidence and material filed in the proceedings.

5. The jurisdiction of the Tribunal under section 28 of the Child Protection (Working with Children) Act 2012 (‘the Act’) is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

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.

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.

6. These proceedings arise because on 7 July 2014, the Children's Guardian made a decision to refuse to grant BKG a Working with Children Check clearance. On 15 July 2014 the applicant BKG applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

7. On 22 July 2013 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance because his partner is the authorised carer of three children through a formal arrangement with the Department of Family and Community Services. This arrangement has been in place since 2007. The applicant resided at the address where his partner and the three children lived, but was required to move out of those premises in 2013 due to the requirement to obtain a working with children clearance from the Children’s Guardian.

8. Section 10 of the Act provides that an adult person, who resides at the home of an authorised carer, must hold a working with children check clearance or have made a current application to the Children’s Guardian for a clearance.

9. The respondent was required under to Act to process the applicant’s application for a working with children check clearance, and as a result, in this instance conduct a risk assessment. The matter was referred for a risk assessment under the Act on 2 September 2013.

10. It is not in dispute that the applicant has been convicted of offences which triggered the respondent conducting a risk assessment to determine whether the applicant poses a risk to the safety of children. (See clause 1(1) (b) of Schedule 1 and Part 3, Division 3 of the Act).

11. On 2 September 2013 the respondent forwarded a request for further information to the applicant. The applicant was invited to make written submissions, and provide references.

12. On 5 November 2013 the respondent followed up the request for further information with a letter. Whilst there had been e-mail and telephone attempts to contact the applicant following the 2 September 2013 contact, no other contact or information had been received.

13. On 3 February 2014 the respondent advised the applicant by letter in accordance with section 19 of the Act that it proposed to refuse the application for a clearance. The purpose of this notice was to again give the applicant the opportunity to submit documents to assist in the respondent's risk assessment. The respondent did not receive a reply to the notice and consequently proceeded to finalise the review in the absence of any documents from the applicant.

14. On 7 July 2014 the respondent refused the Working with Children Check clearance as the respondent determined that the applicant poses a risk to the safety of children. It is that decision which is the subject of this review before the Tribunal.

15. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

16. The object of the Act is to protect children by not permitting disqualified persons, without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

17. 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. (See section 4 of the Act).

18. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant 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. A breach of section 8(1) is an offence.

19. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act).

20. A child related role is set out in section 6(3) of the Act. For the purposes of the Act, an authorised carer is a child related role in accordance with section 6 (3) (c).

21. In addition Division 3 of Part 2 of the Act provides for additional persons who must obtain a clearance.

10 Adult persons residing with authorised carers or persons providing home care services

(1) An adult person (other than a person who is required under another provision of this Act to, or is exempt from the requirement to, hold a working with children check clearance) who resides at the home of an authorised carer or at a home where a home based education and care service or family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children’s Guardian for a clearance.

Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.

22. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant poses a risk to the safety of children.

23. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

24. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

25. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a working with children check clearance (see section 27 (1)). The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

26. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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 total criminal record and the conduct of the person since the offences occurred,

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

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

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

Burden of Proof

27. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]

28. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

29. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

30. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

Risk to the safety of children

31. In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 26 above). Section 15 (4) sets out the criteria which the Children’s Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and 30 (1) are drafted in similar but not identical terms. An important distinction is the word “may” in 15 (4) and “must” in 30 (1).

32. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all 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 a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

33. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

34. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue

35. The primary issue before the Tribunal in this application as outlined at paragraph 15 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997.

36. As outlined at paragraph 30 (above), there is no presumption under section 27 of the Act that the applicant poses a risk to children as the applicant is not a disqualified person (seeking an enabling order) under the Act. I note the applicant’s written submissions filed by his solicitor seek (amongst other things) an enabling order at paragraph 7. This I take to be an error in that this application is for a clearance under section 18 (2) of the Act.

37. The matters referred to in Schedule 1 of the Act which triggered a risk assessment (see paragraph 22 above) were: common assault, and assault child under 12. Both offences were brought under section 61 of the Crimes Act 1900. The section provides:

61 Common assault prosecuted by indictment

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

38. It is uncontroversial that each offence constituted a ‘trigger offence’ for the purposes of Schedule 1 of the Act. The applicant was an adult at the time of each offence, and the offences were committed against a child. The first ‘trigger’ offence being an assault of the applicant’s 17 year old male cousin, whereby an altercation took place outside the local Courthouse following an alleged assault on the applicant by his cousin the evening before. This occurred in September 1988. The second ‘trigger’ offence involved the holding and swinging (by the leg) of the applicant’s infant daughter, following an altercation with the child’s mother who had run out of the dwelling leaving the child with the applicant. This offence occurred in December 1988.

39. As a result both offences fall within the terms of Schedule 1 Clause (4) of the Act.

40. The applicant submitted that as he had not engaged in or been convicted of a disqualifying offence under Schedule 2, (see section 18 (1) ) and that as he was subject to a risk assessment (see section 18 (3) ), then the decision not to grant a clearance by the respondent is based solely on the provisions of section 18 (2) of the Act. That is, that the respondent is satisfied that the applicant poses a risk to the safety of children.

41. By letter dated 7 July 2014 the respondent determined that:

In reviewing your application and in the absence of any document or information which you could have provided as part of the assessment process, the OCG has decided to refuse to grant you a Working with Children Check clearance, as the OCG has determined that you pose a risk to the safety of children. This decision is based on:

The seriousness of the offences

The seriousness of your total criminal record

The period of time since the offences occurred

The age of each victim

The vulnerability of the victim

The difference in age between you and the victim and your relationship with the victim

You knew, or could reasonably have known, that the victim was a child

42. I note that the criteria that the decision was based upon, in part replicate the relevant considerations under section 15 (4) of the Act.

The Evidence and Consideration of the Evidence

43. The applicant relied upon the following material:

1. His affidavit sworn / adopted 24 November 2014 at the hearing.

2. The affidavit of his partner affirmed 5 November 2014

3. Written submissions filed 4 November 2014

4. The Forensic Psychological Risk Assessment Report of Ms Caroline Hare Forensic Psychologist dated 29 October 2014

44. In addition the applicant relied on the oral evidence given at the hearing by himself, his partner and Ms Hare, as well as counsel’s oral submissions.

44. The respondent relied upon the following material:

1. The detailed reasons for decision filed 23 July 2014 pursuant to the Tribunal Direction of 18 July 2014.

2. The bundle of section 58 documents filed 7 August 2014.

3. The additional bundle of documents filed by the Respondent on 14 November 2014.

4. The further bundle of documents filed on 24 November 2014 during the hearing which supplemented the initial section 58 documents filed on 7 August 2014.

5. The documents produced under summons issued by the Divisional Registrar at the request of the respondent from the NSW Police Force.

46. At the hearing the applicant gave oral evidence and was cross-examined by counsel for the respondent. The applicant’s partner also gave oral evidence and was cross examined by counsel for the respondent.

47. As outlined above in support of his application the applicant filed a report of Forensic Psychologist Ms C Hare. The applicant called Ms Hare who gave oral evidence and she was also subject to questioning by the respondent’s counsel.

Evidence relating to section 30 (1) considerations

(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 imposition of an interim bar.

Trigger offences

48. 1988 Common Assault – In September 1988 the applicant assaulted a 17 year old victim. The applicant approached the victim and struck the left side of his face with his right fist and then immediately struck him behind his right ear with his left fist. The applicant was convicted and placed on a 12 month Recognisance of $1,000 to be of good behaviour.

49. 1989 Assault child under 12. – In December 1988 the applicant grabbed his partner by the throat and attempted to strangle her. The applicant’s partner managed to escape from his grasp and hide in some nearby bushes. When police attended the scene the applicant was found holding his baby daughter by one leg and swinging (her) to and fro and up and down. The applicant was convicted and sentenced to 18 months gaol.

Pattern Trigger Offences:

50. 1988 Assault Female – In October 1987 the applicant and his then de-facto partner were arguing about another female. The victim went to a local café and the applicant entered and assaulted her. The victim reported the matter to police and the applicant was charged with assault. The victim later had police withdraw the charge.

51. 1992 Assault / 2 counts – The incident occurred in August 1992. The owner of a liquor store left work leaving two of his employees at the store. While on the way home he received a telephone call from one of his employees. The owner headed back to the store and upon arriving saw two men at the front of the store fighting with one of his employees. The owner ran towards the front of his store and the two co-offenders ran towards the owner. The owner grabbed the shirt of one of the co-offenders and both co-offenders then wrestled the owner to the ground, and then ran off. The owner then heard noises coming from inside his store, he heard bottles crashing, loud voices and screaming. He ran to his shop and saw his two employees wrestling with the applicant. The owner assisted the employees and soon after a police officer arrived and held the applicant to the ground. The applicant was charged with assaulting the employees and convicted. He was sentenced to a fixed term of 6 months.

52. 1993 Manslaughter (not child related) – The applicant was initially charged with Murder, however pleaded guilty to manslaughter when that indictment was first offered, and he was convicted in 1993 and sentenced to a term of five years with a non-parole period of two and a half years. The court found that special circumstances did apply to the events.

53. 2006 Common Assault T2 – The victim and applicant had been in a de-facto relationship for 11 years. Police indicate that there is no record of past violence between the two of them. In January 2006 the victim came home and the applicant was intoxicated. The victim and applicant began to argue and the victim ended up telling the applicant she was going and he could have everything. The victim began to walk away and the applicant asked her “Where do you think you are going?” The victim left and called police on a mobile phone. The applicant came up and demanded the mobile phone. The applicant took the mobile phone and threw it on the ground damaging it. The victim told the applicant that she would walk back but the applicant grabbed the victim by the hair and said “inside now”. The victim told the applicant not to pull her hair and was trying to calm the applicant down. Police arrived and found the victim sitting in the middle of the road and the applicant standing next to her. The victim asked to return to the home to collect some of her items. Police asked the applicant to stand up but he refused. The applicant was moved to the police van by 3 police officers, and two officers were hurt while doing this. The applicant was charged and convicted and received a 12 month Bond under supervision.

(b) The period of time since those offences occurred and the conduct of the person since they occurred.

54. The offences outlined at paragraphs 48 to 53 above occurred from 1988 to 2006, a period of 18 years. The applicant has no convictions for offences since 2006 and has not come to police attention as an alleged perpetrator since that time. Between the 1993 conviction and the 2006 offence there were no other offences by the applicant. I realise that for 5 years of that period the applicant was either in custody / serving a sentence, or under the supervision of the Probation and Parole Office.

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

55. The applicant committed offences from approximately 1982 to 2006 a period of 24 years. The applicant was aged from 17 to 41 years of age over this period. Noting the observations in paragraph 54 (above) the applicant has committed one offence since the age of 27. I note that the applicant is now in his 50th year. For some of his earliest offences the applicant was a child offender, with all of his significant offending occurring in a ten year period from 1982 to 1992 between the ages of 17 and 27.

(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.

56. The victim in the first trigger offence was 17 years of age. The applicant’s evidence was that he was of the understanding that the victim was in his early 20’s (22 years of age), and had been drinking alcohol at the applicant’s residence the day prior to the offence. The applicant’s evidence was that the victim had assaulted the applicant the day prior when he was asleep in his bedroom.

57. In respect of the second trigger offence, the victim was an infant. She was clearly vulnerable and totally dependent on the care of others. The circumstances of this offence were clarified in the applicant’s oral evidence. His then partner had a history of drug dependence and her behaviour that evening led him to suspect that she had been attempting to obtain drugs. There was evidence that he restrained / assaulted his partner by holding her around the neck, which the applicant says was to prevent her from leaving. He was affected by alcohol and when the partner left, he called out to her to take their daughter with her. His evidence was that he was holding the infant around the ankle and swinging her to and fro and that the infant was laughing and not crying. His evidence was that he handed the infant to his sister in law (the child’s aunt).

58. In respect of the manslaughter offence there was some evidence that the victim was vulnerable, but that was only in respect of the context of the absence of any reasonableness of the extent of the force used by the applicant in self- defence or otherwise.

59. The section does not appear relevant to any other offences in the applicant’s criminal history.

(f) The difference in age between the victim and the person and the relationship (if any) between the victim and the person.

60. On the evidence before me, the difference in age only relates to the offence concerning the common assault on his infant daughter. (The second trigger offence). The relationship was of parent and child. The offences against his two partners (one in the 1980’s and his current partner), clearly indicate that the parties were in an intimate relationship. I note that alcohol (and with the earlier partner) drugs were evident factors in the disputes which led to offending.

61. The first trigger offence was between cousins with an apparent five year age difference.

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

62. Only two offences involve children (the trigger offences). In respect of the first trigger offence the applicant’s evidence was that he believed that his cousin was an adult. There is no evidence before the Tribunal to contradict this belief, and I note that the victim had turned 17 years of age and was drinking alcohol.

63. Clearly in respect of the second trigger offence, the applicant knew that his infant daughter was a child.

(g) The person’s present age.

64. The applicant will reach 50 years of age later this year. The present age is not a consideration of any import on the evidence and material before the Tribunal.

(h) The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred.

65. I note the respondent’s submissions that the applicant has an extensive criminal record. I also note that the applicant has been convicted of a number of indictable and strictly indictable offences. Whilst the record is extensive and in some aspects serious, those matters are not entirely determinative in the application. Whilst I must consider them, it is clear from the matters outlined above as to what the significant offences are, and both the circumstances and other factors pertinent to them. In nearly all of the offences alcohol was a factor, and often this was coupled with the alcohol or drug use of the victims or associated persons.

66. There is evidence of one instance of intoxication (not abstinence) in the last 20 years, and that instance lead in part to the 2006 incident and subsequent conviction. The applicant has not committed an offence against a person (bar the 2006 incident) since he stopped drinking. In that regard his evidence (which was corroborated) was that he will occasionally have one drink (a glass of wine or champagne) on a special occasion such as a birthday and this would occur on a small number of occasions a year.

67. The applicant’s conduct has been in effect unblemished since the offences, being diligent in obtaining employment, child rearing and care for his family, maintaining good health and keeping fit, as well as volunteer work.

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

68. The applicant relied on the evidence of Ms Hare Forensic Psychologist. Ms Hare provided a detailed and comprehensive report and assessed the applicant as having a low risk of engaging in future violence against children, his partner or other known or unknown adults.

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

69. The applicant did not provide material to the respondent in respect of the working with children clearance process. However the applicant did provide the material referred to in paragraph 43 (above) in respect of his application to the Tribunal. Annexed to his affidavit were a large number of Annexures (‘A’ – ‘P’ inclusive).

70. The first annexure (‘A’) was a confidential Clinical Psychologist Report dated July 2007 which was commissioned by a regional Office of the then Department of Community Services (‘the Child Assessment Report’) . At that time there were 4 children in care with the applicant’s partner who is the paternal aunt of the children. All four children were spoken to and assessed as were the applicant and his partner. The Child Assessment Report was commissioned in order to ascertain the current emotional and behavioural assessment of the children; the children’s relationship with the carer and partner (the applicant), and provide recommendations for intra-familial and extra-familial contact and other support needs as required.

71. On my examination of the evidence the Child Assessment Report is positive in respect of the applicant. Inconsistencies were clarified in the partners evidence before the Tribunal at hearing. The applicant and his partner provided individual and candid observations and answers to their circumstances and the specific questions asked of them by the clinician. The applicant’s partner did not shy away from discussing the applicant’s former alcohol use, and criminal history. The report concluded by stating:

There is nothing borne out by this assessment which indicates the children to be at-risk in their present family environment. As far as they are concerned they do not see the inclusion of (the applicant) in their lives as threatening or likely to impose problems. On the contrary, his presence and involvement with the family is seen as desirable. He is seen as someone who can protect, support their carer and interact (especially play) with them. All three XXXXX children have independently and without prompting or predisposing bias spoke favourably of him, and all three said in effect, that they would like to see him assume a greater role in the family.

72. Ms Hare’s report (in addition to the matters outlined at paragraph 68 above) made the following assessment of risk and recommendations for risk management.

57. Based upon my assessment of (the applicant) and application of the HCR -20 V3, I believe that his risk of engaging in future violence against children, his partner, or other known or unknown adults is low or routine . This means that I am not of the opinion that (the applicant) requires any special intervention or supervision strategies designed to manage violence risk. This assessment is based upon his history over the past eight years, during which he has not engaged in evidence of violence. I further believe that the risk of serious or imminent physical harm that he represents is low .

58. I believe that if (the applicant) were to engage in violence in the future, the most likely victims would be his partner, or another adult who had in some ways breached his boundaries, for example seriously harming one of his close family members, such as his nephews or grandchildren. It is my opinion that it is unlikely that any potential victim would be a child, largely due to the unique circumstances within which (the applicant) previously engaged in violent behaviour towards a child (his daughter) and a young person (17 year old known male).

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

73. The respondent submitted that after considering all of the evidence the Tribunal cannot be satisfied that the applicant does not pose a real and appreciable risk to children or young people, and because the safety welfare and well-being of children is the paramount consideration, the Tribunal ought to find that the correct and preferable decision is that the application be dismissed and the decision of the respondent affirmed.

Further consideration

74. The applicant provided some hours of oral evidence at the hearing. He was subjected to extensive cross examination and notwithstanding a dispute about a change in wording from an initial draft of his affidavit concerning the circumstances of the second trigger offence, his counsel submitted that he gave his evidence in a candid and self-effacing manner. It was further submitted that he did not resile from the questions put to him. Having heard his extensive evidence, and having examined in detail all of the section 58 material put on by the respondent, I accept that submission. The applicant’s evidence was consistent with the other records, in so far as he was able to recollect in detail the circumstances of the incidents. The incident in the liquor store was the incident where his recollection was vague, but in that regard the evidence on the matters that he could recollect it was consistent.

75. When examining the applicant’s lengthy criminal matters in some instances the supporting material obtained by the respondent provided information which was consistent with aspects of the applicant’s version of events rather than the nature of the charges or police facts tendered at court resulting in convictions. An example of this is one of the witness statements obtained by police in respect of the first trigger incident which seems to support the applicant’s version of events.

76. In respect of significant aspects of the police facts concerning the 2006 (most recent) incident, the oral and written sworn evidence of the applicant’s partner refuted that material and was consistent with the applicant’s evidence. I note that the partner was the nominated victim of the 2006 incident. Contrary to the police evidence the mobile telephone was said to be the applicant’s. Both the applicant and his partner maintained this position in their evidence and were resilient under cross examination in respect of what actually happened in the street. (E.g.: whether the partner was grabbed by her hair, whether she said to police that she would go and get her things from the home etc.). The applicant’s counsel submitted that in the absence of any testing of the applicant’s evidence (by way of rebuttal) little weight could be placed on the circumstances of the 2006 incident as contained within the police records.

77. However, the evidence was consistent that the applicant was intoxicated on that occasion in 2006, and that his partner ‘ran because she was scared’. She gave evidence about previous past abusive relationships where alcohol was a significant detrimental factor, as the basis for this reaction.

78. It is clear that alcohol had remained a constant factor in the applicant’s offending. The evidence before the Tribunal was that the applicant had not drunk to excess since 1995 (other than the one occasion in 2006). The evidence was that since that time he had barely drunk at all. This evidence was borne out by various supervision reports, sworn evidence and assessment reports filed in evidence. This material was contained in material submitted by both the applicant and the respondent.

79. Whilst the criminal antecedents were significant, it is clear that the applicant was for significant periods in his youth and early adult life embroiled in a transient and alcohol based social setting with extended family and kinship participants. The sentencing Judge in respect of the Manslaughter conviction made the following observation:

At the time of the offence the prisoner was visiting relatives in the XXXX area and he himself said that heavy drinking constituted an important part of the activities of the group with which he was spending his time.

80. The evidence establishes that alcohol is a risk factor in respect of the applicant’s past (and potential) offending. However the evidence also establishes that the applicant has been sober (except for one occasion) since 1995, which is a period of twenty years. The psychological evidence supports this position. He is currently subject to drug and alcohol testing in respect of his employment.

81. There was significant evidence that the applicant has substantially changed his life in the last 20 years. He has obtained educational qualifications, established his own successful business, maintained a supportive long term relationship, and performed a significant amount of paid and unpaid work. He is currently engaged in employment and appears to have the skills and experience, as well as a good aptitude for ongoing work when the current contract finishes. His Forensic Psychologist was questioned by the respondent in respect of her opinion of any change in the current risk rating should these external circumstances (employment and health) change.

80. I also note that there was evidence before the Tribunal concerning his care for children, and the significant productive role that he held in bringing up and caring for his own children, caring for his grandchildren, and his partners niece and nephews. Other than the second trigger offence the evidence is that the applicant has been a productive and appropriate carer of children either under his care or in his family unit.

81. I note that other than the matters outlined above there is no evidence to the contrary to suggest that the evidence at paragraph 82 (above) should be discounted in any manner. I note that his actions as a parent are referred to consistently and historically throughout the material filed by the respondent, where they arise, such as in pre-sentence, sentencing, and parole reports etc. I find that significant weight should be placed on these matters having regard to the provisions of the Act.

Conclusion and orders

84. As outlined above, the issue for determination is whether on the material before the Tribunal is whether I can be satisfied that the applicant poses a risk to the safety of children.

85. For the purpose of these proceedings, in my view on the material before me, the evidence does not establish that the applicant poses a risk to the safety of children. In my view the evidence does not establish that there is a real and appreciable risk of harm to children. In my view the evidence indicates that the applicant should be granted a Working with Children check clearance.

86. It follows that the orders of the Tribunal are:

1. The decision of the Children’s Guardian dated 7 July 2014 to refuse to grant the applicant a Working with Children check clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance

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

15 April 2015 - Coversheet

Decision last updated: 15 April 2015