BXQ v Children's Guardian

[2016] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BXQ v Children’s Guardian [2016] NSWCATAD 102

Hearing dates:

18 February 2016

Date of orders:

25 May 2016

Decision date:

25 May 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member
M O’Halloran, General Member

Decision:

1. The decision of the Children’s Guardian dated 11 May 2015 to refuse to grant the applicant a working with children check clearance is set aside.

2. In substitution, the applicant is granted 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 – corporal punishment of children – application not opposed - whether the applicant poses a risk to the safety of children.

Legislation Cited:

Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013

Category:

Principal judgment

Parties:

BXQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
L Andelman (Applicant)
V Hartstein (Respondent)

  Solicitors:
Legal Aid Commission of NSW (Applicant)
Crown Solicitors (Respondent)

File Number(s):

1510329

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, who will be referred to as BXQ, has the parental responsibility for two of his nephews. On 17 July 2013, he sought a working with children check clearance under the Child Protection (Working with Children) Act 2012 (‘the Act’).

2. Following his request, the NSW Office of the Children’s Guardian (the Children’s Guardian) conducted a risk assessment for him. The trigger for the investigation was a notification made against the applicant in 2007 for inappropriately disciplining children in his care.

3. 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 under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

4. Following the completion of the risk assessment, which considered further allegations against him, BXQ was issued with a ‘Notice of proposed refusal of application’ under s19 of the Act inviting him to make submissions to the Children’s Guardian. Having considered BXQ’s subsequent submissions, the Children’s Guardian made a decision on 11 May 2015 to refuse to grant him a working with child check clearance.

5. BXQ’s application for review was lodged within time and there is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application.

6. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 Administrative Decisions Review Act 1997)

7. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym BXQ has been used for the applicant's name.

8. Following a hearing held by the Tribunal on 18 February 2016, Counsel for the Children’s Guardian advised the Tribunal that it did not oppose the application being brought by the applicant. The Tribunal then stayed the decision by the Children’s Guardian to refuse the grant of a working with child check clearance to BXQ.

Consideration of the evidence

9. The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of s27 of the Act it appears appropriate to have regard to both s30 (1) and s15 (4) considerations. That would fulfil the requirements of both sections, taking into account the nature of the administrative review.

10. The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar

11. The applicant is a 53-year-old man who has the status of an Aboriginal elder in his community. He was widowed in 2001 and has three adult children from his marriage. He has five grandchildren, who he sees regularly. The applicant has since re-partnered and has been in a relationship with his current partner for eleven years.

12. Since 17 September 2004, he has had the parental responsibility for his three orphaned nephews. By 2005, he had five nephews and one niece in his care. The two younger nephews remain in his care whilst the older nephews and niece are now over eighteen years of age and are living independently. The applicant gave evidence that the two younger boys are attending school and doing well. He also told the Tribunal that as a younger teenager, one of the older (now adult) nephews had substantial behavioural difficulties.

13. In 2007, the allegation that the applicant ‘flogs and hits the children with an open hand, a strap and a shoe on the back and bottom when they are naughty’ was sustained. In his affidavit and in oral evidence before the Tribunal, the applicant has conceded that when all other forms of discipline failed, he did smack the children with an open hand on the bottom and did hit a child on the back of the head with an open hand.

14. The applicant concedes that between 2008 and 2012 there were ongoing concerns with his capacity to provide a safe house for the children. The applicant explains this as being in part due to overcrowding in the home, the children’s psychological health and educational development as a result of grief and loss suffered as a result of losing parents and past neglect and instability.

15. Since this time, the Department of Family and Community Services (‘FACS’) has identified no issues of concern in relation to the children in the applicant’s care. The children’s FACS caseworker supports the children remaining in the applicant’s care. Furthermore, FACS supports BXQ in this application before the Tribunal and is of the view that he does not pose a risk to children.

16. In oral evidence before the Tribunal, the applicant said that he had stopped using corporal punishment as a form of discipline four or five years ago. He told the Tribunal that he understands that corporal punishment is a form of child abuse, which might impact on children in the future. He told the Tribunal that he has learnt that hitting children is not an appropriate way to behave and has changed his method of disciplining the children accordingly. Now, he ‘rouses’ on them rather than using corporal punishment. He described himself as a good and honest person who has changed his methods of disciplining the children in his care.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

17. The allegation that the applicant had inappropriately disciplined the children in his care was sustained in 2007.

18. In May 2015, FACS carried out an assessment of risk in relation to the two remaining children in the applicant’s care. The assessment, which was based in part on interviews with the two children, found that there was no danger of serious physical harm and that discipline was not an issue.

The age of the person at the time the offences or matters occurred

19. In 2007, the applicant was 43 years old.

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

20. In 2007, the six children under the applicant’s care ranged in age from seven to fifteen years.

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

21. The age difference between the applicant and the children was between 36 and 28 years.

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

22. The applicant knew the ages of the children.

The person's present age.

23. The applicant is now 53 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

24. The applicant’s criminal record does not disclose any offence against a child or an adult.

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

25. Dr Katie Seidler, Forensic Psychologist, prepared a Psychological Risk Assessment Report for the applicant. In her background to the report, Dr Seidler describes the applicant as an Aboriginal elder who has been an active participant in, and contributor to, the local community, often in a helping capacity, and who by 2005 had assumed the care of five of his nephews and one niece, two of whom remain in his care as the others have aged, assumed independence and moved away.

26. Dr Seidler assessed the applicant’s mental health and personality with the Personality Assessment Inventory (PAI). Whilst Dr Seidler noted that the assessment showed that the applicant had a tendency to present himself in an overly positive light, it was not such as to invalidate the test. In his assessment, the applicant acknowledged having used corporal punishment with the children at times but claimed he was motivated by a desire to encourage the children to focus on their education.

27. To consider the applicant’s risk for violence, Dr Seidler applied the HCR-20 assessment which considers risk across past, present and future variables. According to this assessment, the applicant is considered to pose a low risk of future violence.

28. Dr Seidler noted the following factors, which are considered protective against the applicant’s risk of future violence:|

• he has a limited criminal history, with no charges in several decades;

• he has no criminal history of violence;

• he does not impress as anti-social;

• he does not endorse violent attitudes, has no history of antisocial peer involvement, does not present with a mental illness or history of substance abuse or any psychopathic traits; and

• his lifestyle in the community has been stable and prosocial.

29. As factors seen to elevate the applicant’s risk, Dr Seidler cited some emotional disconnection, poor parenting role models and early exposure to a range of developmental risks and vulnerabilities.

30. In conclusion, Dr Seidler made the following findings:

Taking into account the aforementioned risk and protective factors, [BXQ] is considered to pose a low risk of future violence or abusive behaviour. The primary risks are historical in nature and there is no evidence of acute factors in [BXQ’s] life that may elevate this risk. The most likely scenario is one that it similar to the allegations that have been made against him. That is, that [he] engages in ‘heavy handed’ and inappropriate caregiving towards children in his care. However, this is considered to be an unlikely event with the resultant harm being minor. Further, there is little evidence that [BXQ] would be a generalised risk to children and young people either in a general sense or pertaining to violence or abuse more specifically.

31. Dr Seidler noted that she assessed the applicant as posing a low risk to children and young people in his care, and that his risk is likely even lower for other children he may have contact with in the community. She did not recommend any restrictions on his capacity to work on the basis of his assessed level of risk.

32. In oral evidence before the Tribunal, Dr Seidler stated that, whilst in an ideal world there would be no corporal punishment, in her view, the applicant’s previous use of corporal punishment involved ‘doing what he had been taught’ rather than being the consequence of any violent tendencies. She agreed that he had shown some poor parenting practices but that he should not be refused a working with children check clearance. In confirming her opinion that the applicant’s risk to children is low, she noted the support of FACS for the applicant who had continued to allow his two nephews, who are not yet adults, to remain in his care.

Any information given by the applicant in, or in relation to, the application

33. In his affidavit, the applicant notes that two of his nephews remain in his care and he no longer uses corporal punishment to discipline them. Instead, if ever he needs to discipline them, he stops their pocket money or mobile phone credit. He told the Tribunal that both boys are doing well at school.

Any other matters that the Children's Guardian considers necessary

34. At the conclusion of the evidence in this matter, Counsel for the Children’s Guardian advised the Tribunal that the Children’s Guardian no longer opposed the application.

Conclusion

35. The question for the Tribunal is this: in light of all his 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, he must be granted a working with children check clearance.

36. It is not disputed that the applicant’s physical punishment of the children in his care was inappropriate. The Tribunal accepts the applicant’s evidence that he now recognises that corporal punishment is a form of child abuse that may impact on children. The Tribunal accepts the applicant’s evidence that over the past four years, he has ceased using corporal punishment as discipline. The applicant impressed the Tribunal as an honest and thoughtful man who cares for the children in his care and has worked hard to ensure their future well-being by encouraging their education. The Tribunal accepts the evidence before it that the two nephews who remain in the applicant’s care (the others now being adults) are performing well in school.

37. The Tribunal was impressed by the thoroughness of the report by Dr Seidler and notes her findings that the applicant poses a low risk to children. The Tribunal also notes that FACS supports BXQ’s application for a working with children check clearance and is of the view that he does not pose a risk to children. On the strength of the written evidence provided to the Tribunal and the oral evidence given at hearing, the Children’s Guardian no longer opposes this application.

38. 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 BXQ poses a real and appreciable risk to the safety of children.

39. 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

40. The decision of the Children’s Guardian dated 11 May 2015 to refuse to grant the applicant a working with children check clearance is set aside. In substitution, the applicant is granted 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: 25 May 2016