BMC v Children's Guardian

[2015] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BMC v Children’s Guardian [2015] NSWCATAD 79
Hearing dates:	18 December 2014
Decision date:	21 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance.
Catchwords:	Administrative Law - review under s27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - the correct and preferable decision – murder conviction - whether the applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BMC (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Tronson (Applicant) Solicitors: BMC (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410499
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, BMC, seeks review of the decision of the respondent, the Children’s Guardian, to refuse her application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012.

2. BMC works with former prisoners and is seeking a working with children check clearance to enable her to also work with their families.

3. In 2005, BMC was convicted of the murder of a 35-year-old man. Two co-offenders, including BMC’s former husband, were also convicted of the murder. BMC was sentenced to sixteen years imprisonment with a twelve-year non-parole period. She commenced a work release program in April 2012 and was released to parole on 2 September 2013. Her parole period will expire on 30 August 2017.

4. On 25 July 2013, BMC applied for a working with children check clearance pursuant to s13(1) of the Child Protection (Working with Children) Act (‘the Act’). As the offence of murder of an adult is not a disqualifying offence under Schedule 2 (1) of the Act, BMC is not a ‘disqualified person.’ In light of the BMC’s conviction, however, the respondent conducted a risk assessment under sections 14 and 15 of the Act.

5. On completion of the risk assessment, the respondent placed an interim bar on the applicant thereby prohibiting her from engaging in child-related work.

6. It was against this interim bar that BMC lodged her application for review to this Tribunal. On 15 September 2014, a subsequent decision was made by the respondent to refuse to issue a working with children check clearance to BMC. The application before the Tribunal will accordingly be treated as an application to review the later decision to refuse BMC the working with children check clearance.

7. In refusing the working with children check clearance, the respondent cited BMC’s recent release from custody; the limited period she had had to demonstrate her rehabilitation progress in the community; the fact that she will be on parole until 30 August 2017 and the limited period she had been known to her referees.

8. An order was made at the commencement of the hearing of the proceedings 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.

9. For the reasons set out below, the Tribunal has decided to set aside the decision of the Children’s Guardian to refuse BMC a working with children check clearance.

The Role of the Tribunal

10. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 27 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.

11. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.

12. This means that the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

13. In determining this application, the Tribunal has power to affirm, vary or set aside the decision: see subsection 63(3) of the Administrative Decisions Review Act 1997).

The Child Protection (Working with Children) Act

14. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (section 3 of the Act)

15. The Children’s Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

16. Having undertaken a risk assessment for BMC, the Children’s Guardian then refused BMC’s application for a Working with Children Clearance Check.

17. The Tribunal has the power to review such a decision under section 27 of the Act. In doing so, the Tribunal must consider the following factors set out in section 30(1):

(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.

Written evidence before the Tribunal

18. A wealth of written information has been placed before the Tribunal, relevant details of which are summarised below.

Statement of BMC

19. In a statement dated 19 November 2014, BMC sets out her reasons for applying for a working with children check clearance:

• to interact with children who attend her organisation before school for the breakfast club and after school for the homework centre; and to assist with the running of these programs;

• pending funding approval, to administer specialised housing projects that may be offered for women and their children;

• to attend cultural and community events;

• to volunteer with community groups.

20. In her statement, BMC sets out the circumstances of her former drug abuse which led to two of her children being placed into care prior to her incarceration for the offence of murder. This evidence is corroborated by documentation from the Department of Family and Community Services, as contained in documents provided by the respondent.

21. BMC gives details of her decision to discontinue her drug use:

I understand the Office of the Children’s Guardian conducted a risk assessment in relation to my application for a Clearance because I have been convicted for murder.

I committed this offence when I was under the influence of drugs. I do not take drugs anymore and have not done so since 2002. I made a decision to change my life whilst I was in custody. Part of sustaining change is my ongoing commitment not [to] take drugs. Since I made the conscious decision in 2002 to abstain from taking drugs, I have had no desire whatsoever to take any drug, despite the fact drugs are freely available in gaol.

22. Reports from Corrective Services NSW corroborate BMC’s evidence of having stopped taking drugs in 2002.

23. One of her co-offenders was her former husband, who was also a drug taker, and from whom she was divorced in 2007. She has no contact with him. Whilst in custody, BMC participated in a restorative justice program with the family of the man she killed.

24. In August 2013, her first application for parole was granted. According to BMC, it is rare for people convicted of murder to be granted parole on their first application.

25. She described being in a stable relationship with a man who, despite having used drugs recreationally twenty years ago, does not take drugs. BMC states that she has a good and close relationship with her four children and with her parents.

Psychological report by Ms Cassandra Skinner-Taylor

26. In her general risk assessment for BMC, the psychologist Ms Cassandra Skinner-Taylor used the following psychological tests: Million Clinical Multi-axial Inventory III, Symptom Checklist 90, Level of Service Inventory – Revised and the Historical Clinical Risk-20.

27. On the basis of these assessments, Ms Skinner-Taylor found BMC to be a low risk for future violence or of harm to all people, children and adults alike. In relation to her risk to the safety of children, Ms Skinner-Taylor found that:

The violent offences for which she was charged and convicted were not against children. Children were not present for the assault or the murder offence. She was not precluded from visits with children whilst in custody.

BMC is currently at no greater risk of harming children than any other community members with no history of violence against children. She does not have a history of violence which includes case specific risk factors in relation to children.

BMC would be considered at increased risk of violence if she were to recommence the use of drugs, lose her supportive family relationships, become unemployed and begin mixing with pro-criminal peers.

BMC is currently assessed at low risk of violence to anyone – adults and children. Therefore she presently poses a low risk of harm to children.

Pre-release & progress reports

28. In a report dated 13 May 2013 recommending BMC’s release to parole, the author describes BMC’s academic and personal achievements whilst in prison before noting her ‘successful transitioning…to community life through he Works Release and Weekend Leave Programs, and the fact that she has the support of her family, including her family, including her aged parents, as she seeks to re-enter community life on a permanent basis…It is commendable that the inmate has not only taken the steps in her criminogenic needs, but has also completed academic qualifications to such a level. Armed with these qualifications and an offer of employment, it bodes well for the return of the inmate to the community as a normal law-abiding citizen.’

29. Updated reports confirm BMC’s good progress within her home and working environment.

References

30. A series of references placed before the Tribunal, including a detailed reference from her work supervisor, manager and colleague, attest to BMC’s exemplary behaviour following her release from prison, first on day release and subsequently to parole.

31. A reference from the former general manager of the correctional centre where BMC served out part of her sentence describes BMC as ‘a remarkable individual, who positively contributes to her family, the community and many others, for whom she is a role model.’ To his knowledge, BMC has not demonstrated inappropriate behaviour or abuse towards children. In an updated reference dated 15 November 2014, he confirms that since BMC has been released to parole, ‘she has made a successful transition, establishing strong ties in the community and continues to be highly motivated and self-determined.’

32. In her statement, BMC’s eldest daughter, who now has a child and step-child of her own, writes that since her mother’s release from prison, she sees her three times a week. BMC regularly looks after her grandchildren and sees her other children, who still live with their grandparents, most afternoons.

33. BMC’s daughter writes:

Since Mum has been out of gaol, I have never had any reason to think Mum would harm any children..I know Mum was a drug addict for a lot of years. Since Mum left gaol, I have never seen her take drugs and I have never had any reason to think she has taken drugs. When she was staying at my house she would not even take a Panadol.

34. In a detailed reference, BMC’s supervisor writes that she has known BMC since 2008. She describes her as a dedicated employee and a good role model to her colleagues and clients. She writes that

BMC has told me that she does not use drugs and I have never seen anything that would make me disbelieve her….BMC has never come to work under the influence of drugs of alcohol. BMC does not take sick leave….Her lifestyle is based around her family and ensuring that her children are loved and cared for and have a great life. …I would trust BMC with my own children and grandchildren…To my knowledge, BMC has never demonstrated inappropriate behaviour towards children. I would be very surprised to hear that she had…Based on my knowledge and experience and my observations of BMC, I do not believe that she poses a risk to children.

Oral evidence of BMC

35. BMC gave oral evidence to the Tribunal. In cross-examination, BMC agreed that she had begun using drugs after her fiancé died in a car accident, shortly before the birth of their daughter. She continued to take drugs with the man who later became her husband and co-offender to the murder of which they were both convicted. She agreed that her two youngest children had been removed from her care. She agreed that her drug taking had pushed her to act impulsively. She confirmed that she has not taken drugs since 2002. She agreed that she had initially maintained that she was innocent of the murder for which she was convicted and that she had only accepted responsibility for the crime after 2005 when the court proceedings were finalised. She agreed that her current partner had taken drugs recreationally when they knew each other twenty years earlier but that this is no longer the case.

Oral evidence of BMC’s parole supervisor

36. BMC’s parole supervisor is a former prison officer. He has known BMC since her works release placement. During this time, he described BMC as being at pains to do the right thing and to keep to all supervision requirements. BMC now reports to him on a fortnightly basis. He described BMC as being extremely committed and explained the difficulties facing inmates who embark upon tertiary study whilst in gaol and who, for example, do not have access to computers. He describes BMC ‘as a poster girl’ and told the Tribunal that he had never seen an inmate ‘walk the walk’ the way she had. In terms of her parole, he describes the first three months post-release as being the danger time for parolees. He told the Tribunal that whereas other parolees will return to drugs, he has seen no signs of BMC having done so.

37. He agreed that BMC has a risk rating of T2 medium but explained that she had earlier been re-classified as a T3 low risk rating. As her supervisor, he had overruled this decision because he was concerned that such a quick reduction for a serious offender might leave the service open to criticism. He told the Tribunal that on the basis of her behaviour, she deserves a T3 low risk rating. He confirmed that she would be subject to supervision under the end of her parole period in 2017.

38. When asked whether he felt BMC was a risk to the safety of children, he told the Tribunal:

I thought about that because of her background…She has done everything possible to fulfil the requirements of the system. I’d have no hesitation to leave her with my children.

Consideration

39. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person but to eliminate possible risks to the safety of children by persons working in child-related work.

40. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [420, His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

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."

41. These remarks have been accepted to equally apply to the word ‘risk’ as it appears in the 2012 Act.

42. It is BMC’s submission that, on the evidence before it, the Tribunal should find that she is drug-free and committed to remaining so, that the risk of her committing further offences is no greater than for any other person and that she does not pose any greater risk to the safety of children than any other adult.

43. The respondent opposes the application on the basis of the seriousness of BMC’s offence and the likelihood of further violent conduct in light of the short time BMC has been back in the community. According to the respondent, this short period of reintegration into the community after a long period in custody has ‘only provided a limited opportunity to evaluate how the applicant will cope with release and the stressors which led to her previous lifestyle and violent behaviour.’

44. Set out below is the evidence and the Tribunal’s findings in regard to the factors set out in subsection 30(1) of the 2012 Act.

Seriousness of the matters that caused the refusal of the applicant’s application for a clearance

45. BMC’s conviction for murder was the trigger offence for the conduct of a risk assessment by the respondent. BMC killed the victim in company with two other people. Each of the three offenders was eventually sentenced to 16 years with a non-parole period of 12 years. According to the remarks on sentence, the victim suffered a ‘sustained and vicious assault’. He suffered multiple bruises and at least eight stab wounds and was killed when hit in the throat with a cricket bat. BMC was sentenced on the basis that she was party to a joint criminal enterprise, had inflicted some of the injuries and intended to inflict grievous bodily harm. At the time of the attack, she was under the influence of drugs. BMC accepted responsibility for her actions only on the completion of the court proceedings. She has since participated in a restorative justice program with the victim’s family.

46. In refusing the working with children check clearance, the Children’s Guardian expressed concern at BMC’s recent release from custody and the limited period of time she has had to demonstrate her rehabilitation progress in the community. BMC was released to parole on 2 September 2013 and will remain on parole until 30 August 2017. Prior to her release on parole, she was approved for a works release program which she commenced in April 2012. In December 2012, she was offered a paid position at her workplace where she continues to work and where she is well-regarded.

The period of time since the misconduct occurred and the conduct of the applicant since that time

47. The offence was committed in August 2001. BMC was in custody from 31 August 2001 to 2 September 2013.

48. BMC gave evidence that she stopped taking drugs in 2002. No evidence has been put forward to refute this. Indeed, it is corroborated by the Department of Corrective Services documents contained on file.

49. These documents confirm that whilst in custody, BMC behaved well with only five minor breaches during this time. The respondent agrees that BMC’s work record, both in custody and now in the community, has been exemplary. Whilst in custody, she completed tertiary study and other courses.

50. She was approved for the works release program in 2012 and commenced working for a charity organisation. The position became paid in December 2012 and she has continued to work there since her release from prison.

The age of the applicant at the time the misconduct occurred

51. BMC was 31 years old at the time of the offence.

The age of the victim at the time the misconduct was committed and any matters relating to vulnerability of the victim

52. The victim was 35 years old at the time of the offence, with no apparent vulnerability.

The difference in age between the victim and the applicant

53. There was four years difference in age between the victim and BMC.

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

54. The victim was not a child.

The applicant’s present age

55. BMC is now 44 years old.

The seriousness of the applicant’s total criminal record

56. Apart from her conviction for murder, BMC has one conviction for possession of drugs in 1994 and a conviction for the assault of a postmaster in 1994.

The likelihood of any repetition by the applicant of the misconduct and the impact on children of any such repetition

57. The Tribunal accepts the submission put forward by the respondent that the principal risk factor that would lead to further misconduct by BMC is drug use. BMC has agreed that she used drugs prior to the murder offence and that drugs have been an element in her offending in general. Her two youngest children were born with a methadone dependency and, prior to her incarceration, had been removed from her.

58. BMC has given evidence that she gave up using drugs in 2002. The respondent agrees that, on the evidence, BMC’s samples for urinalysis were clean from this point and that there is no evidence that she has taken any drugs since her release.

59. The respondent put forward BMC’s relationships as a further risk factor for future misconduct. On the evidence before the Tribunal, it is clear that BMC enjoys a close and supportive relationship with her family. Her parents attended the Tribunal proceedings and her eldest daughter provided a detailed statement setting out her mother’s attributes and declaring that she trusts her mother to care for her own children. There is no evidence to contradict BMC’s evidence that her relationship with her current partner is stable and supportive and that he does not take drugs.

60. In her 2014 report, the psychologist Ms Skinner-Taylor assessed BMC as being ‘at low risk of violence to anyone – adults and children. Therefore she presently poses a low risk of harm to children.’

Any information given by the applicant

61. BMC has provided a lengthy affidavit and submitted references and statements to the Tribunal in support of her application. Included in the references are one from her daughter, from the former general manager of her correctional centre who has known her for eight years and from a work colleague who has known her for seven years. BMC has provided a psychological assessment addressing the question of her risk to the safety of children. She has given oral evidence to the Tribunal and her parole officer has given oral evidence in support of her application.

Any other matters the respondent considers necessary

62. The respondent has noted that BMC does not require a working with children check clearance in order to continue her current work. For this reason, a failure to obtain the clearance would not impact on her current employment.

Conclusion and orders

63. There is no dispute that BMC has achieved remarkable progress during her incarceration, whilst on works release and now that she has been released to parole. She has been part of the community on a limited basis as part of the works release program from April 2012 and on a full-time basis since being released to parole in September 2013. In all, this is now a period of three years.

64. The question for the Tribunal is this: in light of all her circumstances, including these time in the community, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, BMC must be granted a working with children check clearance.

65. Having considered all the evidence before it and having taken into account those issues set out in s30(4), the Tribunal is not satisfied that BMC poses a real and appreciable risk to the safety of children.

66. The Tribunal accepts that BMC has been back in the community for a relatively short period: three years since she started her works release program and twenty months she has been released to parole. During this time, however, she has shown herself to be an exemplary worker and member of the community, as shown by the evidence of her employers and parole supervisor. There is no dispute that she has been drug free since 2002, now 13 years, and there is no evidence that she shows any likelihood of returning to a lifestyle that involves drug taking. Her parole supervisor attests to her progress and denies that she is a risk to the safety of children.

67. It has been close to two years since BMC applied for a working with children check clearance. At the time of application, she had not yet been released to parole and the Tribunal can understand the respondent’s concerns in granting a clearance under such circumstances. In the interim, BMC has continued to flourish personally, as a parent and in her employment. There is no indication of any lapse in her drug-free status or any likelihood of this. She has provided references from people who have known her for some years and have watched her progress. She has been assessed as not posing a risk to children.

68. In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a working with children check clearance.

Order

69. The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, 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

Decision last updated: 21 April 2015