BPA v Children's Guardian - [2015] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BPA v Children’s Guardian [2015] NSWCATAD 36
Hearing dates: 5 February 2015
Decision date: 10 March 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Decision:
Decision of the respondent is affirmed.

Catchwords: ADMINISTRATIVE REVIEW – review of decision to refuse a working with children check clearance – the applicant’s convictions for violence and aggression triggered a risk assessment – on completion of the risk assessment the respondent was satisfied that the applicant posed a risk to the safety of children – whether the respondent’s decision is the correct and preferable decision
Legislation Cited: Administrative Decisions Review Act 1997
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Commission for Children and Young People Act 1998 (repealed)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
YG and GG v Minister for Community Services [2002] NSWCA 247
Category: Principal judgment
Parties: BPA (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
T L Scott (Agent for Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1410624
Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.

Reasons for decision

The applicant, BPA, seeks review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Chid Protection (Working with Children) Act 2012 (the 2012 Act).
The applicant is 48 years of age and he and his partner of 20 years are the authorised carers of two children. The children are the children of a cousin of the applicant’s partner and are aged 10 and 11 years. The children have been in the care of the applicant and his partner since they were very small.
The applicant and his partner are authorised as carers under section 137 of the Children and Young Person (Care and Protection) Act 1998 (the Care Act). They are authorised as the Aboriginal kinship carers of the two children in their care. Supervision of the placement of the children is the responsibility of the Department of Human Services, Community Services (the Department).
The 2012 Act came into force on 15 June 2013 and required every person engaged in ‘child-related work’ to have a working with children check clearance: see sections 3(b) of that Act. To work in ‘child-related work’ without a clearance is an offence (see sections 8 and 9 of the 2012 Act).
‘Child-related work’ is broadly defined in section 6 of the 2012 Act. It is more broadly defined to that contained in earlier legislative schemes (i.e. section 33 in Part 7 of the Commission for Children and Young People Act 1998 (repealed)) and includes the role of an authorised carer (see paragraph 6(3)(a) of the 2012 Act).
In light of the 2012 Act coming into force, on 18 November 2013, the applicant made an application to the respondent seeking a working with children check clearance under that Act.
On 3 April 2014, the respondent wrote to the applicant to advise him that records had been identified that required a risk assessment be undertaken. The respondent identified 11 offences of which the applicant had been convicted, in the years 1989 to 1995, and one offence of which he was charged but no conviction entered. Ten of the offences were offences of violence (i.e. assault and assault occasioning actual bodily harm). The letter invited the applicant to provide information and references in support of his assessment. The applicant was given 15 working days to provide the information.
On 8 May 2014, the respondent again wrote to the applicant. The letter was a Notice of Proposed Refusal of Application: see section 19 of the 2012 Act. The letter noted that an officer of the respondent had spoken to the applicant on three occasions requesting further information as a result of his ‘reluctance to engage in the risk assessment process.’ The letter went on to repeat the convictions that triggered the risk assessment and gave the applicant a final opportunity to provide his supporting documentation before a final decision was made. The applicant was given 20 working days to provide the information.
The applicant did not provide any information and on 2 October 2014, the respondent wrote to the applicant informing him that it had been determined to refuse his application for clearance as the respondent was satisfied, on the material before her, that the applicant poses a risk to the safety of children (see subsection 18(2) of the 2012 Act).
On 5 November 2014, the applicant lodged this application for review of the decision of the respondent. In his application for review the applicant said he received notice of the respondent’s decision on 13 October 2014. The applicant also made an application for a stay of the respondent’s decision to refuse his application for a clearance. A stay was not granted and the matter was set down for hearing on 5 February 2015. Orders were also made for the filing and serving of evidence prior to the hearing.
At the conclusion of the hearing on 5 February 2015, I reserved my decision.
I have now considered all the material before the Tribunal and for the reasons set out below I have determined that, as at the date of hearing, the decision of the respondent is the correct and preferable decision and should be affirmed. I have made this determination on the basis of the applicant’s criminal history of domestic aggression and violence towards his partner of 22 years and insufficient evidence about his insight into such offending, its impact on children in his care and what mechanisms he has in place to avoid conduct of this kind in the future. As I have noted below, subject to the applicant’s willingness and co-operation and with the assistance of the respondent and the Department, I believe the applicant may be able to address this insufficiency, as I have not found that the risk posed by the applicant is substantial.

Role of the Tribunal

There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 30 of the Civil and Administrative Tribunal Act 2013, section 9 of the Administrative Decision Review Act 1997 and section 27 of the 2102 Act.
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.
That is, 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].
In determining this application, the Tribunal has power to make the following orders:

63   Determination of administrative review by Tribunal
(1) …
(2) …
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a)  to affirm the administratively reviewable decision, or
(b)  to vary the administratively reviewable decision, or
(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The 2012 Act

Set out below are other provisions of the 2012 Act, which are relevant to this application.
Section 4 of the 2012 Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of the Act.
The word ‘children’ is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently the word ‘child’ has the same meaning.
Section 18 of the 2102 Act sets out how the respondent is to determine an application for a clearance.
Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a ‘disqualified person’ and the respondent must refuse that persons’ application for a clearance. The offences of which the applicant has been convicted do not fall within the list of offences in Schedule 2. Hence, he is not a ‘disqualified person’.
Subsections 18(2) and (3) of the 2012 Act sets out how an application of a person other than a ‘disqualified’ person is to be determined. These subsections provide:

18 Determination of applications for clearances
(1)…
(2) 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.
(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

Subsection 18(2) is relevant to this application.
The risk assessment provisions are contained in sections 14 and 15 of the 2012 Act. Section 14 provides that a person is subject to ‘an assessment requirement’ under the Act if any of the matters specified in Schedule 1 apply to the person. These matters are referred to as the ‘assessment requirement triggers.’
The risk ‘assessment requirement trigger’ relied on by the respondent to assess the applicant was that set out in subclause 1(6) of Schedule 1 of the 2012 Act. That subclause is in the following terms:

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.

That is, the respondent formed the view that the applicant’s convictions of offences involving violence were ‘sufficient to indicate a pattern of behaviour’ that warranted investigation as to whether the applicant caused a risk to the safety of children.
Subsection 15(4) sets out the matters the respondent may consider when undertaking a risk assessment.
Subsection 16(1) of the 2012 Act enables the respondent to seek further information from an applicant seeking a clearance and for whom the respondent must, or has decided to conduct a risk assessment. A failure to provide the requested information within six months enables the respondent to terminate the person’s application for a clearance: see subsection 16(2).
Where the respondent is required, or decides to undertake a risk assessment, section 17 enables the respondent to impose an interim bar on the person. An interim bar operates to prevent the person from working in child-related employment, pending the determination of his/her application for a working with children check clearance. The respondent did not place an interim bar on the applicant pending the determination of his application for a clearance.
As I have noted, having undertaken a risk assessment under section 15, the respondent determined to refuse the applicant’s application for a clearance as she was satisfied that the applicant poses a risk to the safety of children: see subsection 18(2) above.
As I have noted subsection 27(1) of the 2012 Act makes provision for administrative review, by the Tribunal, of a number of decisions of the respondent, including a decision to refuse a working with children check clearance (see subsection 27(1)). That 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.

Subsection 30(1) of the 2012 Act sets out the factors the Tribunal must consider in determining a review application. These are:

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,

(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.

(2) …

The above mentioned factors are similar to those the respondent may consider when undertaking a risk assessment under section 15 of the 2012 Act (see subsection 15(4)).

Evidence before the Tribunal

In support of his application the applicant relied on seven references and a one-page document explaining when he received the decision of the respondent and why he should be granted a clearance.
I re-listed the matter prior to hearing to ascertain whether the applicant has any further material he would wish to rely on. At the directions hearing the applicant explained he had difficulty in reading and writing, but he understood his support person had forwarded the references he sought to rely on. These were located on the tribunal file and the respondent was provided a copy.
The respondent relied on two large and two small bundles of documents. Included in the bundles of documents was a copy of the respondent’s section 15 risk assessment report and copies of documents provided to the respondent in response to enquiries made by her office about the applicant. This included documents from the Local Court, NSW Police and Corrective Services.
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.
In support of his application, the applicant also called Ms Sing and Mr Gonzales to give oral evidence. Ms Sing and Mr Gonzales are both case- workers with the Department.

Consideration

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 disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.
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 [42], 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."”

These remarks have been accepted to equally apply to the word ‘risk’ as it appears in the 2012 Act.
As I have noted, the main issue is whether on the material before the tribunal and the applicable law, the decision of the respondent that the applicant poses a risk to the safety of children is the correct and preferable decision.
Set out below is the evidence and my findings in regard to the factors set out in subsection 30(1) of the 2012 Act

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

The applicant has a lengthy criminal record. Between 1988 and 2010, the applicant has been convicted a number of times for offences of assaulting police in the exercise of their duty and resisting arrest. These offences all occurred while the applicant was intoxicated. In 1990, the applicant was sentenced to gaol for 3 to 6 months for such offences.
The most recent incident of this kind occurred in 2009. He was charged with offences of assaulting an officer in the execution of his duty, resisting an officer in the execution of his duty and intimidating a police officer in the execution of his duty. I have dealt with the circumstances giving rise to these offences below.
The applicant was convicted of all three offences on 3 May 2010 and he was sentenced to enter into a good behaviour bond for twelve months pursuant to subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 and to accept the following conditions:

‘The offender must be of good behaviour and appear before the Court during the bond term if required to accept the supervision and guidance and comply with all reasonable direction of the Probation and Parole Service or long as deemed necessary to report to Probatiosn and Parole Office within 24 hours.’

The applicant has also been charged and convicted of a number of offences of assault, where the victim was his partner or another member of his family. Set out in the table below is a summary of these since 1989.

Date of offence

Description of offence

Date of Conviction and Sentence

22/02/1989

Assault S494 – the police fact sheet states that at about 10.10pm that night the applicant approached his partner, who was sitting in the car in front of the supermarket. The applicant dragged his partner, by the hair, from the car onto the road. He then kicked his partner once in the head and once in the stomach. The applicant’s partner was pregnant at the time. It was noted that the applicant was ‘well affected by intoxicating liquor.’

11/08/1989

It would appear the applicant was convicted in his absence and a warrant was issued for the purpose of sentencing the applicant. It would appear he was sentence on 25/08/1989 to 12 months had labour.

16/06/1989

Assault female S494 – the assault occurred in Walgett and the victim of the assault was the applicant’s partner. The police incident and arrest report states that the offence occurred that evening at the local hotel. The report states that the applicant and his partner became involved in an argument and the applicant threw a beer glass at his partner. He hitting her and then pulled her by the hair from the chair and kicked her whilst she was on the floor.

25/08/1989

The applicant was sentenced to three months hard labour in regard to the offence

7/11/1989

Assault female S494 – this offence occurred at Walgett and the victim was the applicant’s sister. The police fact sheet states that the incident occurred at 7:10pm that evening when the applicant became involved in a verbal argument with his sister who was trying to walk to the police station so that she could avoid further trouble with the applicant, who was well effected by alcohol. The police fact sheet goes on to say the applicant pushed his sister to the ground and punched her to the rear of her head.

25/08/1989

Three months hard labour.

18/01/1989

Assault female S494 – the police fact sheet states that the offence occurred at 7:25pm that evening while the applicant was at the Imperial Hotel. The victim had asked the applicant to leave the hotel to which the applicant swung around and struck the victim on the arm with his hand. The applicant then left the hotel and was apprehended a short time later by police where he denied the offence. He was taken to the police station where he was charged with the matter.

25/02/1989

The applicant was sentenced to three months hard labour.

5/07/1989

Assault S61 – the police fact sheet states that this incident occurred at 11:00pm on 5 July 1989. The victim of the offence was the applicant’s sister who was sitting with another female friend outside the Walgett garage. The applicant approached his sister and requested that she return home with him instead of staying around the streets. The applicant’s sister refused to go home resulting in the applicant striking her once to the side of the head with an open hand. The applicant’s sister reported the incident to the local police and the police arrested the applicant a short time later. The police fact sheets notes that at the time of arrest the applicant did not appear to be effected by alcohol.

25/08/1989

It would appear that a conviction was entered but no sentence was

imposed on the applicant for this offence.

08/04/1984

Assault –the victim of the offence was the applicant’s partner. The police fact sheet states that on this particular day the applicant’s partner was drinking at a residence in Walgett. She was in the lounge room with a number of other persons when the applicant entered the house demanding that she return his wrist watch and for her to stop calling him derogatory names. While the applicant’s partner was removing the watch from her wrist, the applicant allegedly struck her a single blow to her right cheek bone causing her pain. The applicant then left the residence and a short time later the applicant’s partner notified the police. The police fact sheet states that a statement was obtained from the applicant’s partner and police then spoke to the applicant. He readily admitted assaulting his partner and he was arrested and cautioned and conveyed to the Walgett Police Station where he was interviewed and charged.

09/08/1994

In regard to the assault the Court sentenced the applicant to enter into a recognisance to be of good behaviour for two years and to be supervised by the NSW Probation Service.

26/03/1992

The applicant appears to have been charged with an offence of malicious wounding (two counts) and alternative charges of assault occasioning actual bodily harm (two counts). It would appear the applicant pleaded guilty to the alternate charges which was accepted by the prosecution.

In a statement of the applicant’s partner made shortly after this incident, she said that she was at the Imperial Hotel with her male friend on this day. She said they left and she was not sure what time it was but it was dark. She said they walked to her friend’s caravan which was at the back of the Oasis Hotel. She said when they got there they went to bed and after a couple of minutes she heard the applicant banging on the front door of the caravan. She said he was yelling out things like ‘I’m going to kill you, you slut’. She said her male friend jumped out of bed and she sat up. She said that when her male friend went outside the next thing she remembered was the applicant come rushing into the caravan and hitting her on the head and nose with an ashtray. She said she also remembered the applicant hitting her with his closed fist on his face and he just kept hitting her. She said that she got stitches between her eyes on the bridge of her nose and that her head hurt a lot. As a result of the injuries she had to go to Dubbo Base Hospital and spent five nights there. A Court exhibit lists six charges having been laid against the applicant in regard to what occurred on that evening. Three of these charges related to the applicant’s partner and similar charges were laid against the applicant’s male friend.

21/02/1995

The Court sentenced the applicant to enter a recognisance to be of good behaviour for two years in regard to each charge of which he was convicted. The Court also ordered that he be supervised by the NSW Probation Service and undertake alcohol counselling.

Date of offence	Description of offence	Date of Conviction and Sentence
22/02/1989	Assault S494 – the police fact sheet states that at about 10.10pm that night the applicant approached his partner, who was sitting in the car in front of the supermarket. The applicant dragged his partner, by the hair, from the car onto the road. He then kicked his partner once in the head and once in the stomach. The applicant’s partner was pregnant at the time. It was noted that the applicant was ‘well affected by intoxicating liquor.’	11/08/1989 It would appear the applicant was convicted in his absence and a warrant was issued for the purpose of sentencing the applicant. It would appear he was sentence on 25/08/1989 to 12 months had labour.
16/06/1989	Assault female S494 – the assault occurred in Walgett and the victim of the assault was the applicant’s partner. The police incident and arrest report states that the offence occurred that evening at the local hotel. The report states that the applicant and his partner became involved in an argument and the applicant threw a beer glass at his partner. He hitting her and then pulled her by the hair from the chair and kicked her whilst she was on the floor.	25/08/1989 The applicant was sentenced to three months hard labour in regard to the offence
7/11/1989	Assault female S494 – this offence occurred at Walgett and the victim was the applicant’s sister. The police fact sheet states that the incident occurred at 7:10pm that evening when the applicant became involved in a verbal argument with his sister who was trying to walk to the police station so that she could avoid further trouble with the applicant, who was well effected by alcohol. The police fact sheet goes on to say the applicant pushed his sister to the ground and punched her to the rear of her head.	25/08/1989 Three months hard labour.
18/01/1989	Assault female S494 – the police fact sheet states that the offence occurred at 7:25pm that evening while the applicant was at the Imperial Hotel. The victim had asked the applicant to leave the hotel to which the applicant swung around and struck the victim on the arm with his hand. The applicant then left the hotel and was apprehended a short time later by police where he denied the offence. He was taken to the police station where he was charged with the matter.	25/02/1989 The applicant was sentenced to three months hard labour.
5/07/1989	Assault S61 – the police fact sheet states that this incident occurred at 11:00pm on 5 July 1989. The victim of the offence was the applicant’s sister who was sitting with another female friend outside the Walgett garage. The applicant approached his sister and requested that she return home with him instead of staying around the streets. The applicant’s sister refused to go home resulting in the applicant striking her once to the side of the head with an open hand. The applicant’s sister reported the incident to the local police and the police arrested the applicant a short time later. The police fact sheets notes that at the time of arrest the applicant did not appear to be effected by alcohol.	25/08/1989 It would appear that a conviction was entered but no sentence was imposed on the applicant for this offence.
08/04/1984	Assault –the victim of the offence was the applicant’s partner. The police fact sheet states that on this particular day the applicant’s partner was drinking at a residence in Walgett. She was in the lounge room with a number of other persons when the applicant entered the house demanding that she return his wrist watch and for her to stop calling him derogatory names. While the applicant’s partner was removing the watch from her wrist, the applicant allegedly struck her a single blow to her right cheek bone causing her pain. The applicant then left the residence and a short time later the applicant’s partner notified the police. The police fact sheet states that a statement was obtained from the applicant’s partner and police then spoke to the applicant. He readily admitted assaulting his partner and he was arrested and cautioned and conveyed to the Walgett Police Station where he was interviewed and charged.	09/08/1994 In regard to the assault the Court sentenced the applicant to enter into a recognisance to be of good behaviour for two years and to be supervised by the NSW Probation Service.
26/03/1992	The applicant appears to have been charged with an offence of malicious wounding (two counts) and alternative charges of assault occasioning actual bodily harm (two counts). It would appear the applicant pleaded guilty to the alternate charges which was accepted by the prosecution. In a statement of the applicant’s partner made shortly after this incident, she said that she was at the Imperial Hotel with her male friend on this day. She said they left and she was not sure what time it was but it was dark. She said they walked to her friend’s caravan which was at the back of the Oasis Hotel. She said when they got there they went to bed and after a couple of minutes she heard the applicant banging on the front door of the caravan. She said he was yelling out things like ‘I’m going to kill you, you slut’. She said her male friend jumped out of bed and she sat up. She said that when her male friend went outside the next thing she remembered was the applicant come rushing into the caravan and hitting her on the head and nose with an ashtray. She said she also remembered the applicant hitting her with his closed fist on his face and he just kept hitting her. She said that she got stitches between her eyes on the bridge of her nose and that her head hurt a lot. As a result of the injuries she had to go to Dubbo Base Hospital and spent five nights there. A Court exhibit lists six charges having been laid against the applicant in regard to what occurred on that evening. Three of these charges related to the applicant’s partner and similar charges were laid against the applicant’s male friend.	21/02/1995 The Court sentenced the applicant to enter a recognisance to be of good behaviour for two years in regard to each charge of which he was convicted. The Court also ordered that he be supervised by the NSW Probation Service and undertake alcohol counselling.

The period of time since that offence occurred and the conduct of the applicant since that timeIn addition to the abovementioned convictions, the applicant also has convictions for assault of persons other than his partner and sisters. Again, these offences appear to have arisen while the applicant was intoxicated.
Also of concern to the respondent are the events of 21 June 2009 and 25 July 2010.
In June 2009, the applicant was at a 21st birthday party when police were called. As a consequence of an altercation with police, the applicant was charged with offences of assaulting police officers in the execution of their duty, resisting an officer in the execution of his duty, assault occasioning actual bodily harm, common assault and maliciously destroying or damaging property. Not all charges were proceeded with. However, in 2010 the applicant was convicted of the remaining offences.
In his oral evidence, the applicant acknowledged he was drunk that evening. He denied assaulting the police.
In regard to the latter incident, police were called to the home of the applicant and his partner on the night in question. They were called at 9:35pm and found the applicant’s partner to have an amount of blood in and under her nose. Her nose appeared to be swollen. The police fact sheet states that the applicant’s partner indicated to them that the applicant had punched her on the nose. Ambulance officers attended, but she declined to be treated or conveyed to the hospital. The police took a statement from the applicant’s partner, in which she indicated the applicant had assaulted her but she did not wish any action to be taken. However, she did indicate that she wanted him to be out of the house. In response to this the police made an application for an interim telephone apprehended violence order against the applicant. The police fact sheet states the applicant refused to leave the home and an altercation occurred with the police. The applicant was forcefully removed and bit a police officer and tore the shirt of another police officer. It was noted that the applicant and his partner were both ‘slight to moderately effected by alcohol.’
No charges were laid against the applicant in regard to the assault of his partner. However, an apprehended violence order was sought and made. The order applied to the applicant and the applicant’s partner was the protected person. This was not the first order of this nature that had been made against the applicant, where the protected person was his partner.
In his oral evidence the applicant denied hitting his partner in 2010. He also said he does not drink anymore and is remorseful for the offences he has been convicted of.
In her oral evidence the applicant’s partner agreed that she was drunk at the time of incident. She said she did not recollect who had hit her. She said she and the applicant have not drunk since 2010. On further questioning she agreed that they drank occasionally, but added that they do not have any alcohol at home. She acknowledged the applicant had hit her on a number of occasions previously, but continued to say she did not recollect who hit her on the night in question in 2010. She said she has remained with the applicant because she loves him and he supports her and the children. She reiterated the applicant had not hit her for many years. She went on to say that she and the applicant stopped drinking because they ‘woke up’ to themselves. She said they talked about it together and decided to slow down their drinking for the sake of the children.
In my view, it is difficult to accept the denials of the applicant and his partner in regard to the 2010 incident. This is especially so when an apprehended violence order was taken out against the applicant as a result of the incident.
Ms Hartstein, counsel for the respondent, submitted that each offence, if considered in isolation, was not at the serious end of the scale. However, when considered as a whole they showed an ongoing pattern of violence, especially when the applicant was intoxicated. It was this ongoing pattern of violence, which was of significant seriousness.
I accept the applicant’s criminal record clearly shows a pattern of violent and aggressive behaviour. In my view, that pattern was most intense in the years 1989 to 1999. They occurred primarily when the applicant had been drinking excessively at licensed premises. However, in the last 14 years there have been only a few such incidents, with the last incident having occurred in 2010. Again they occurred when the applicant had been drinking alcohol, as was his partner. Nevertheless, I accept the evidence of the applicant and his partner that they have moderated their drinking in recent years. This is reflected in fewer convictions having been recorded. Whether the applicant has moderated his drinking sufficiently to address the risk of re-occurrence is difficult to say.
Finally, there is no evidence of children, including those in the applicant’s care, having been directly subjected to the applicant’s aggressive and violent behaviour. However, to the extent the applicant’s aggressive and violent behaviour have been domestic nature, this behaviour must have impacted on the children to some extent.
In the last four years there has been no report of the applicant coming to the attention of police. As I have already mentioned, the applicant’s evidence is that he no longer drinks to excess and has not done so for 4 to 5 years. He lives with his partner of 22 years and their two foster children. Prior to these children being placed in their care, the applicant and his partner were the authorised carers of two boys, who are now grown up. Both have jobs and one has a family of his own, who as one referee said was a great example of the care the applicant and his partner had given him as a child and young man. The applicant, who was not a person of many words, appeared to be very proud of what these children have achieved and appeared to want the same for the children in his care today.
The applicant has a job, which takes him away from home. He said, the money he earns from his job he gives to his partner. He works in an isolated region of the State. He said the isolation and his poor reading and writing skills have made it difficult for him to respond to the respondent’s request for information.

The age of the applicant at the time the offence occurred

The applicant was 23 years of age when he first assaulted his partner. In 2010, when the last alleged assault took place, the applicant was 43 years of age.

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

The victim of the applicant’s offending conduct was his partner or another adult male or female. As I have noted above, children have never been directly victims of his offending conduct. The evidence of the applicant and his partner is that at no time were their children or any other children present at the time of the offending conduct. The police fact sheets do not indicate otherwise.

The difference in age between the victim and the applicant

As I have noted, the victims of the applicant’s offending conduct have been adult males and females. The applicant’s partner being a victim on a number of occasions. I note she is about four years younger than the applicant.

The applicant’s present age

The applicant is currently 49 years of age.

The seriousness of the applicant’s total criminal record

As I have already noted the applicant has a lengthy criminal record, involving a pattern of aggressive and violent behaviour. That pattern being extremely serious in the years 1989 to 1999. However, in the last 14 years that aggressive and violent behaviour has been more isolated, with the last incident having occurred almost 5 years ago. That incident was nevertheless serious as it involved his partner.

The likelihood of any repetition by the applicant of the offence of which he was convicted and the impact on children of any such repetition

The applicant contends that he is unlikely to re-offend as he does not drink alcohol any more and it has been more than 10 years since his last offence. He also said he received treatment, in 1990, for anger management.
The respondent contends that there is an immediate and serious risk of the applicant re-offending. In this regard the respondent points to the applicant’s admission that he still drinks occasionally and that he offended as recently as 2010.
In my view, the evidence does not point to there being an immediate serious risk of re-offending by the applicant. This does not appear to have been the view of the Department, who have monitored the placement of the children in the care of the applicant and his partner. There is also no evidence of any further re-offending in the last five years and I accept the applicant has significantly moderated his drinking. Whether this is attributable to him having a job, or it has been a conscious decision on his part is difficult to tell. It may of course be attributable to both, as well as the applicant having matured over time.
However, I am left with the impression that the applicant may still lack a level insight into his offending conduct and the impact it may have on children, especially those in his care. In the absence of a risk assessment, by an independent suitably qualified professional, skilled in communicating with Aboriginal people, it is difficult to make a conclusive finding as to whether the applicant today poses a real and appreciable risk to the safety of children.
In his evidence, Mr Gonzales said the Department had proposed to implement a program of counselling for the family, which, in part, was for the applicant. I understood the nature of that counselling to include addressing issues such as insight into the applicant’s offending and the impact it might have on children. Regrettably, that program was not implemented when the respondent made her determination to refuse the applicant’s application for a working with children check clearance.

Any information given by the applicant

It was the evidence of Ms Singh that the Department had only heard very positive things about the applicant and his care for the children in his care and on this basis his application for a clearance was supported. In giving her evidence, she said she was aware of the 2010 incident, but had little knowledge about the relationship of the applicant and his partner. She said that when care workers go to see families they usually have a conversation about alcohol and drugs so as to make sure children in these families are safe.
Mr Gonzales said that, in May 2014, he became the allocated caseworker for the children in the care of the applicant and his partner. He said he had met with the family and the children and that he supported the applicant remaining with the family. He did, however, note that the relationship with the applicant had been fractious occasionally. Nevertheless, he supported his application for a clearance.
Mr Gonzales also said that no notifications had been made in regard to the children since 2010. He said that he understood alcohol had been an issue in the past. He also mentioned a recent issue where a member of the household was a person with a past child sexual assault conviction. When this was raised with the applicant and his partner the member left the premises and he no longer resides with the family.
Mr Gonzales said the focus of the Department was to develop the skills of the children so as to avoid situations of risk of harm. It was in this context that the Department had initiated a program of counselling for the children, the applicant and his partner. However, when the respondent determined to refuse his application for a clearance this initiative was put on hold.
Mr Gonzales said the programs take up to 10 weeks and occasionally they are ongoing. He said that the applicant’s partner had indicated she was willing to engage in such programs. He said he had only met the applicant on 1 to 2 occasions to discuss the program and those discussions did not go well to start with.
The references relied on by the applicant were written in support of this application before the Tribunal. They all support the applicant being granted his working with children check clearance so that he can return to live with his family. In her reference to the Department, Ms Shirley Scott, Aboriginal Client Services Officer of the Department of Corrective Services, said she was willing to work with the applicant and his partner to ensue that the best possible outcome can be achieved. I understand this to mean that she is willing to provided ongoing support to the applicant and his partner so that the applicant can be granted and retain his working with children check clearance.
Ms Scott said she had known the applicant for almost 35 years and was aware of his criminal conduct. Notwithstanding his criminal record, Ms Scott said the applicant and his partner have been ‘fantastic foster carers for over 15 years.’ The remaining references, from leaders of a number of prominent Aboriginal organisations, made similar comments about the applicant and his partner.

Any other matters the respondent considers necessary

It was the respondent’s contention that there remained a serious risk of physical harm to the children when the applicant has been drinking or is angry. In this regard, the respondent reiterated the applicant’s evident lack of insight into the effect drinking alcohol and domestic violence has on his behaviour. That is, he has failed to recognise that his drinking is harmful to himself and also to others. His evidence is that he has not been drinking for the last 10 years, however this is clearly not the case.
The respondent also pointed to the applicant’s lack of co-operation in providing information to support his application. This, the respondent said was consistent with the applicant failing to participate in the counselling programs that had been arranged by the Department. The fact that the Department had felt it was necessary to suggest such training, the respondent contended was sufficient to give rise to concern.
While I understand the concerns of the respondent, in my view, the lack of cooperation may not have been motivated by an intention to do so. From my observations of the applicant, he does have a difficulty in communicating and understanding what is required of him. This was especially so given the many years the Department had found him to be a suitable Aboriginal kinship carer, when it was at all times fully aware of his criminal history. He also appears to have understood the support of the Department and his referees would resolve the issue of the respondent’s refusal to grant him a clearance.

Conclusions and orders

As I have mentioned above, the issue for determination is whether, on the material before the Tribunal, I can be satisfied that the applicant poses a risk to the safety of children. There is no presumption that he poses such a risk by reason of his offending conduct, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
Of concern in this application is the applicant’s lengthy criminal history, which in part, involves acts of aggression and violence of a domestic nature. In the last 14 years, his domestic violence towards his partner has been isolated to a single reported incident in 2010. Although the applicant denies he hit his partner on this occasion, the evidence before the Tribunal suggests the contrary.
While there is no evidence that these acts were at any time directed towards a child or children more generally. For the reasons stated above, the applicant’s offending conduct of domestic violence nevertheless affects the children in his care and on this basis his offending conduct poses a risk to their safety. The question is whether, having regard to all the information before the Tribunal, the applicant is likely to re-offend.
There are a number of factors that are protective of the applicant re-offending. These include the fact that he has a steady job, the love and support of his partner of 22 years and the support he receives from his local Aboriginal community, where he is highly regarded. Other factors are the Department’s support in him continuing to care for the children in his care and his considerable reduction in drinking alcohol.
The applicant’s offending has primarily occurred while he was heavily intoxicated. He said he does not drink any more, but this is not entirely correct. He still drinks occasionally. While I accept the applicant has moderated his drinking significantly in recent years, there is little evidence about his insight into his past offending and the impact it has or is likely to have on the children in his care. Nor is there any evidence of his understanding of the triggers that cause him to drink to excess and act aggressively and violently towards his partner and what steps he has taken to avoid such triggers.
The Department appears to also have concerns about the applicant’s level of insight. It is regrettable that the counselling for the applicant and his partner about domestic violence and the impact it has on the children was post-phoned. Any counselling will of course require the full co-operation of the applicant.
Given the steps the applicant says he has taken to date and subject to his willingness to participate, substantial counselling may not be necessary, especially if the applicant is counselled and assessed by an independent suitably qualified professional, skilled in communicating with Aboriginal people. If the applicant provides a report from the person(s) having counselled and assessed him, there may no longer be any concerns about his lack of insight etc. enabling the respondent to accept a further application from the applicant, under paragraph 21(1)(b) and 21(2)(d) of the 2012 Act.
In the meantime, in the absence of such evidence, on the material before the Tribunal I am satisfied that the applicant poses a risk to the safety of children. It is not a significant risk, but one that requires further assessment and I recommend, subject to the applicant’s willingness and co-operation to undertake offence specific counselling and a risk assessment, the respondent and the Department assist him in this regard. The respondent should consider advising the applicant, based on my findings, as to the nature of the assessment it would require in accepting a further application for a clearance and the Department should consider assisting the applicant in securing the necessary assessment.
For the reasons set out above, I find, at the time of hearing, that the decision of the respondent is the correct and preferable decision. On this basis the appropriate order is to affirm the respondent’s decision the subject of review. However, as I have noted, the risk posed by the applicant is not substantial and subject to his agreement to undergo offence specific counselling in regard to his domestic violence and aggression and agreeing to a risk assessment, the respondent should, prior to the five year limit set out in section 21 of the 2012 Act, accept a further application by the applicant for a clearance and consider that application in the context of the findings I have made and the contents of any counselling and assessment reports that are provided.

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: 10 March 2015

Medium Neutral Citation:	BPA v Children’s Guardian [2015] NSWCATAD 36
Hearing dates:	5 February 2015
Decision date:	10 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	Decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – review of decision to refuse a working with children check clearance – the applicant’s convictions for violence and aggression triggered a risk assessment – on completion of the risk assessment the respondent was satisfied that the applicant posed a risk to the safety of children – whether the respondent’s decision is the correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 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 (repealed) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BPA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: T L Scott (Agent for Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410624
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.