CCX v Children's Guardian

[2017] NSWCATAD 64

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CCX v Children’s Guardian [2017] NSWCATAD 64
Hearing dates:	16 March 2016 and 11 August 2016
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member M Bolt, General Member
Decision:	1. The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is set aside. 2. In substitution for that decision, the Tribunal decides to grant the applicant a working with children check clearance.
Catchwords:	CHILD PROTECTION - Working with children – Review of refusal of application for working with children check clearance – Applicant convicted of four counts of common assault – Domestic violence offences - Whether applicant poses a real risk to children
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHV v Office of the Children's Guardian, Children's Guardian [2014] NSWCATAD 163 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category:	Principal judgment
Parties:	CCX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Higgins (Applicant) V Hartstein (Respondent)   Solicitors: Willoughby Law (Applicant) Crown Solicitor (Respondent)
File Number(s):	1510490
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, without the leave of the Tribunal, it is prohibited to disclose, publish or broadcast the name, and any information which might tend to identify the name, of any person named in these proceedings, including, but not limited to, the applicant, any partner of former partner of the applicant, any child (whether the person is a child now or was a child when the relevant document was created or incident occurred), any victim, any non-expert witness and any person who has made a risk of harm report to the Department of Family and Community Services and its predecessors.

REASONS FOR DECISION

1. These proceedings concern the question of whether the correct and preferable decision is to refuse the applicant’s application for a working with children check clearance (“clearance”).

2. The applicant is the primary carer for his two granddaughters, who live with him and his partner, and he has parental responsibility for them under a court order. He wants a clearance so that he can be their authorised carer and receive government funding to assist with their care.

3. The Children’s Guardian refused his application for a clearance on the basis that he had been convicted of four counts of common assault for offences committed between February 2009 and June 2014. Since that time, the applicant has stopped drinking alcohol and has undertaken courses and counselling to address his previous behaviour.

4. For the reasons which follow, we are satisfied that the applicant does not pose a real or appreciable risk to children and have decided that he should be granted a clearance.

Background

5. The applicant has been caring for his two granddaughters since the oldest one was under two years of age and since the youngest one was born. They have had periods of time in foster care in 2009 and 2014. They are now eight and nine.

6. The applicant applied for a clearance under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) on 29 July 2013.

7. The applicant has been convicted of four counts of common assault. The conviction dates for these offences are 26 February 2009, 28 October 2009, 9 October 2013 and 18 June 2014.

8. A person is subject to an “assessment requirement” under the Act if any of the matters specified in Schedule 1 apply to the person (Act, s 14). Clause 1(6) of Sch 1 to the Act provides: “A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence … sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children”.

9. The Children’s Guardian considered that, as a result of the applicant’s convictions for common assault, cl 1(6) of Sch 1 to the Act applied to him. Accordingly, the Children’s Guardian conducted a risk assessment pursuant to s 15(1) of the Act.

10. The applicant’s granddaughters were removed from his care in February 2014 following one of the assault charges. On 17 September 2014, after five days of hearing, the Children’s Court made orders returning the applicant’s granddaughters to his care and granting him parental responsibility for his granddaughters.

11. On 4 August 2015, the Children’s Guardian refused to grant the applicant a clearance because the Children’s Guardian was satisfied that he posed a risk to the safety of children (see Act, s 18(2)).

12. The applicant applied to this Tribunal for a review of the Children’s Guardian’s decision on 18 August 2015.

13. On 14 January 2016, this Tribunal remitted the matter to the Children’s Guardian pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) for reconsideration, following the withdrawal of an appeal by the Department of Family and Community Services against the placement of the applicant’s granddaughters with him.

14. On 25 February 2016, an officer from the Office of the Children’s Guardian produced a Risk Assessment Reconsideration Report. After reconsidering the applicant’s circumstances, the Children’s Guardian again decided to refuse his application for a clearance and thus to affirm her original decision (Administrative Decisions Review Act, s 65(2)(a)).

Tribunal’s jurisdiction and function

15. The Tribunal has jurisdiction to review the decision of the Children’s Guardian pursuant to s 27(1) of the Act, ss 55 and 63 of the Administrative Decisions Review Act and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).

16. The Tribunal’s function is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63(1)). Its jurisdiction is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; BHV v Office of the Children's Guardian, Children's Guardian [2014] NSWCATAD 163 at [4]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34].

Applicable law

17. The object of the Act, as set out in s 3, is to protect children:

1. by not permitting certain persons to engage in child-related work, and

2. by requiring persons engaged in child-related work to have working with children check clearances.

18. Section 4 of the Act provides:

“4   Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

19. The Tribunal must have regard to ss 3 and 4 of the Act when exercising its functions: CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 at [34].

20. As indicated above, when determining whether to grant a clearance to the applicant, the Children’s Guardian was bound by s 18(2) of the Act. That subsection provides as follows:

“(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.”

21. The term “risk” in this context “excludes ‘fanciful or theoretical risk’ and instead requires a decision maker to determine ‘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’: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [13]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 at [39]; Commission for Children and Young People v V [2002] NSWSC 949 at [42].

22. When determining an application to the Tribunal under s 27(1) of the Act for review of a decision to refuse a clearance, the Tribunal is to have regard to the matters set out in s 30(1) of the Act. Section 30(1) provided, prior to the commencement of the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW):

“30   Determination of applications and other matters

(1)  The Tribunal must consider the following in determining an application under this Part:

(a)  the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b)  the period of time since those offences or matters occurred and the conduct of the person since they occurred,

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

(d)  the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g)  the person’s present age,

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

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

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

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

23. The amendment to s 30(1) of the Act made by the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act does not apply in these proceedings, because the review of the Children’s Guardian’s decision had commenced before that amendment: see Act, Sch 3, item 25.

24. We note that subsection 30(1A) was inserted into the Act by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015. It does not apply to the applicant, because his applications to the respondent and to the Tribunal were made before that provision came into force (see Act, Sch 3, item 16).

Consideration

25. We have considered each of the s 30(1) factors in turn. Each one is dealt with below.

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 (s 30(1)(a))

26. The offences committed by the applicant, which led to the refusal of a clearance, were domestic violence offences. The victim of the first offence, committed in January 2009, was the applicant’s adult partner. The victim of the second offence, in August 2009, was his partner’s adult daughter. In October 2013, the applicant admitted to pushing his partner and she also admitted to pushing him. In February 2014, there was a further incident of domestic violence in which the applicant admitted to pushing his partner and pulling her hair but denied the balance of the allegations against him.

27. There is a dispute between the parties as to the extent of what the applicant did. This is discussed further below. On the whole, we accept the applicant’s account of what happened.

28. Whilst any offence of common assault is serious, the seriousness of the assaults committed by the applicant is at the lower end of the scale. The degree of seriousness of each offence is reflected in the sentences the applicant received. The first 2009 offence was found proven but no conviction recorded; for the second 2009 offence and for the 2013 offence, he received on each occasion a good behaviour bond for a period of twelve months (which he did not breach and accordingly no sentence was imposed); and for the 2014 offence he was fined $750.

29. The Children’s Guardian submits that the “trigger offences” (that is, the offences of common assault) are especially serious due to the fact that several of the events occurred in the presence of children.

30. The Children’s Guardian submits that the applicant’s grandchildren were present during the 2013 and 2014 offences. The applicant’s evidence in relation to the 2014 offence was, initially, that his granddaughters were upstairs when the incident occurred and did not witness it. Under cross examination, he said that one of his granddaughters came downstairs at one point and saw something, but he then closed the laundry door so she could not see anything further. He acknowledged that one of his granddaughters saw him push his partner but maintained that his other granddaughter was upstairs in the bedroom watching a DVD. The applicant also agreed that his grandchildren would have heard the argument he had with his partner from upstairs.

31. The applicant also gave evidence that his step-grandson witnessed the incident between him and his partner in 2013. He said that his step-grandson ran downstairs from where he was watching television and saw something. He denied that his granddaughters were in the house when the 2013 assault occurred. Although the respondent alleges that the applicant’s granddaughters were present in 2013, we are not satisfied that this is the case.

32. We accept that the circumstance that two of the offences occurred in the presence of children adds to their gravity. However, even taking this into account, we are still of the view that the offences were at the lower end of the scale of seriousness. Taken together, they indicate a pattern of behaviour up until mid-2014, which is more serious.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))

33. The most recent offence occurred about two and a half years ago. The earliest offence occurred about eight years ago.

34. The applicant has, in our view, taken significant steps to address the conduct which led to the offences since the last offence. There is no evidence that he has been violent since June 2014 (see applicant’s statutory declaration of 10 October 2014). His conduct since that time, on the evidence before us, has been commendable.

35. The applicant gave evidence, which we accept, that he has engaged with the following services:

1. The Langton Centre;

2. Men’s Group Counselling;

3. The services of a clinical psychologist (“the Psychologist”);

4. The Relationships Australia “Taking Responsibility” course for men that deals with education and prevention of domestic violence; and

5. Probation and parole.

36. The applicant said that he attended the Langton Centre for support in not taking alcohol, which was their specialty (transcript, p 81, lines 39-40 and p 86 lines 13-14, p 7, lines 43-44). He said that when he first went there he took a drug called Abstain, which made him ill if he drank alcohol (transcript, p 85, lines 27-35). He also said that he attended Relationships Australia with his partner for couples counselling (transcript, p 80, line 13) and that he engaged in the “Taking Responsibility” course with Relationships Australia (affidavit of 22 January 2016 (“January 2016 Affidavit”) at [24] and [50]). He said he participated in the Men’s Group counselling for several months after the Children’s Court and District Court proceedings (concerning care of his grandchildren) concluded (January 2016 Affidavit at [49]). We accept the applicant’s evidence on these matters.

37. The applicant also gave evidence that he had attended a number of sessions with the Psychologist, and the Psychologist gave oral evidence about this. The Psychologist’s evidence was that the applicant had attended 20 sessions with him of nearly an hour each between March 2014 and March 2015 (transcript p 45, lines 27-33). We accept this evidence.

38. The Children’s Guardian determined, in the Risk Assessment Reconsideration Report of February 2016, that limited weight could be given to the intervention of the Psychologist because the applicant did not disclose certain matters to him. These included his history of domestic violence and alcohol use. However, the Psychologist’s oral evidence was that the work he was doing with the applicant was supportive work to assist him to cope with the stress and anxiety he was going through and that it was not important to have verification of the details he was given about particular incidents. The Psychologist said that they explored issues such as anger and being defensive and tried to gain an understanding of the problems caused by the violence (transcript pp 49-50).

39. In light of the Psychologist’s evidence, we do not agree that limited weight is to be given to his intervention due to the applicant not telling him about certain matters. We are satisfied that the Psychologist was able to effectively engage with the applicant by exploring issues with him, irrespective of the extent of disclosure the applicant made to the Psychologist.

40. The applicant explained in oral evidence that he was no longer accessing the Psychologist, the Langton Clinic or Relationships Australia because he felt like he was dealing with his issues or problems adequately (transcript, p 91, lines 34-35). He described strategies he employed to deal with issues which arose, such as going for a walk if there is conflict with his partner, and conciliating or discussing with her (transcript, p 91 line 37 to p 92, line 12).

41. The applicant also gave evidence about his conduct in caring for his granddaughters who live with him. His evidence was that he ensured that both girls attended regular specialized counselling. The counselling for one of the girls was to assist her in dealing with a sexual assault by another child and another sexual assault whilst in foster care. The counselling for the other girl was to assist with self-confidence and dealing with her emotions. We find that he has behaved in a positive and supportive way towards his granddaughters since the offences occurred.

The age of the person at the time the offences or matters occurred (s 30(1)(c))

42. The applicant was between 59 and 64 years old at the time of the offences.

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 (s 30(1)(d))

43. The direct victims of all the offences were women. On three occasions, the victim was the applicant’s partner and on one occasion the victim was the applicant’s adult daughter.

44. However, children were present during the 2013 and 2014 offences. We accept the Children’s Guardian’s position that they can be considered secondary victims as they were exposed to violence which caused them to become upset. We also accept the Children’s Guardian’s submission that the applicant’s granddaughters, who witnessed the 2014 offence, were vulnerable due to their youth and history of trauma.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s 30(1)(e))

45. The difference in age between the applicant’s partner and the applicant was not significant. The difference between the applicant and his adult daughter was greater. The most significant age difference is between the applicant and his grandchildren who witnessed the 2014 assault and who were 5 and 6 years old at the time.

Whether the person knew, or could reasonably have known, that the victim was a child (s 30(1)(f))

46. The applicant knew or could reasonably have known that children were present during the more recent assaults.

The person’s present age (s 30(1)(g))

47. The applicant is now 66 years old.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred (s 30(1)(h))

48. The trigger offences are the only events in the applicant’s criminal history. The commission of four assaults is relatively serious as it is indicative of a pattern of behaviour, even though the seriousness of each assault is at the lower end of the scale.

49. The applicant’s conduct since the last offence has been very positive. This is acknowledged by the Children’s Guardian in the Risk Assessment Reconsideration Report. He has taken significant steps to address his past behaviour. He has not committed any further offences. He has stopped drinking alcohol, which was a trigger for the offending behaviour. He has also engaged with counselling and psychological services which have helped him develop strategies to manage anger. The evidence indicates that he is engaging in constructive activities with his granddaughters, including taking them to counselling.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

50. We do not accept the submission of the Children’s Guardian that the likelihood of repetition of past violent conduct is high.

51. The applicant states in his January 2016 Affidavit that he “absolutely regrets” the incident in which he pushed his partner in February 2014. He was a credible witness, readily acknowledging the seriousness of what he had done, and also acknowledging the effect the arguments with his partner and the violence towards her could have on his grandchildren. He appeared to have insight into the effects of his past conduct on others.

52. Alcohol was a factor in most of the assaults the applicant committed. We accept the applicant’s evidence that he has not drunk alcohol since April 2014 (and that he had given up alcohol previously, with an episode of drinking in April 2014 being an outbreak in a period where he was generally abstinent).

53. The Psychologist described the applicant as having made excellent progress in his counselling sessions.

54. The applicant had made significant efforts to change his behaviour, including by giving up alcohol and attending counselling sessions to examine and better understand his behaviour. He has put in place strategies to help him deal with anger effectively and to prevent arguments and ensuing violence. As a result, we assess the likelihood of any repetition of the domestic violence as being low.

55. If the applicant did repeat any of the offending conduct, the impact on his grandchildren would depend upon whether they were present and, if so, how serious the violence was. However, if they were aware of the conduct, and especially if they witnessed the conduct, it could be expected that the children would experience stress and fear and that, if the conduct were repeated, this would tend to normalize violent behaviour for them. The impact on his grandchildren of any repetition of the offences is thus likely to be detrimental.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

56. The applicant submitted that the Tribunal may take into account why the applicant wants the clearance and the circumstance that the only child-related employment he is likely to engage in is that of an authorised carer for his grandchildren. He said that his motivation for applying for a clearance is so as to facilitate Community Service’s authorisation of him as an authorised carer. He does not need to be an authorised carer to look after his grandchildren, but being an authorised carer would enable him to obtain funding to care for them. The respondent submits that this is not a relevant consideration in the assessment of risk, which should be an objective matter.

57. We accept the respondent’s submission that the purpose for which the applicant wants a clearance is not relevant to our assessment of risk. The decision under review is a decision not to grant a clearance, a decision which may only be made if the Children’s Guardian is satisfied that the person poses a risk to the safety of children (Act, s 18(2)). The test of whether a person “poses a risk to the safety of children” is stated in general terms. Whilst the applicant submits that the only child-related employment he is likely to engage in is that of an authorised carer for his grandchildren, a clearance would authorise him to engage in any child-related employment. The Tribunal’s task is to assess his risk to the safety of children, not just his risk to the safety of particular children.

58. The applicant submitted that there was no evidence that he had ever been a threat to any children outside of a domestic relationship. He said that the Children’s Court had determined that he did not pose a risk to the safety of the children with whom he has a domestic relationship (that is, his granddaughters). He submits that the absence of any evidence of any potential for risk to children outside of any domestic relationship means that the basis upon which the respondent relies for not granting the clearance is not supported on the evidence. He relies upon the findings of the Children’s Court in August 2014.

59. In August 2014, the Children’s Court considered whether to make an order to rescind or vary a care order and accordingly had regard to the matters set out in s 90(6) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). One of these was “the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded” (s 90(6)(f)). The Court thus considered the risk to the applicant’s grandchildren of psychological harm if the children were returned to his care. This is a different question from the question which this Tribunal has to consider of whether the applicant poses a risk to the safety children.

60. The Tribunal’s task is to review the respondent’s decision and to decide what is the correct and preferable decision at the time it makes a decision. The fact that the Children’s Court made certain findings in care proceedings in August 2014 may have some relevance but it is not determinative. Further, it is not correct to say that the Court found that the applicant did not pose a risk to the safety of children. The magistrate found, at that time, that there was a risk of psychological harm to the children if the applicant and his partner failed in their attempts to control and address the issues that led to the grandchildren being taken from their care. However, the magistrate also found that this risk was not unacceptable because of the work done by the applicant and his partner to date and the work they were committed to continue to do.

61. In our view, the relevance of the decision in the Children’s Court proceedings is that it confirms that the applicant had taken significant steps, at that time, to address the issues which led to his grandchildren being taken away from him. His steps in this regard helped to minimise the risk he posed to the safety of children. It is up to the Tribunal, however, to determine whether he poses such a risk now, taking into account the factors in s 30(1) of the Act.

62. The applicant also submitted that, should the Tribunal uphold the Children’s Guardian’s decision to refuse a clearance, he would not be entitled to make a further application for a clearance for another five years (unless an exception applied) due to s 13A of the Act. He said this was an unreasonable period of time to impose upon him financial responsibility for the funding of treatment (that is, therapy) of his two granddaughters.

63. This is not a relevant consideration for the Tribunal, which is concerned with reviewing a decision based upon a state of satisfaction that the applicant posed a risk to the safety of children. Any financial burden placed upon him as a result of the Tribunal’s decision is not relevant to the question of whether he poses a risk to the safety of children.

64. The applicant also submitted that the current application is effectively the applicant’s last chance to obtain a clearance, due to amendments to ss 15 and 30 of the Act which make it more difficult for an applicant to obtain a clearance. Again, this is not a relevant consideration for the Tribunal and we have not taken it into account.

65. The Tribunal does, however, take into account the evidence that the applicant has taken appropriate steps to seek psychological and other intervention, including the applicant’s own evidence, the evidence of the Psychologist and the evidence contained in a report by the granddaughters’ treating psychologist, dated 30 June 2015.

66. The respondent submitted that the evidence of the Psychologist should be given little weight for the additional reason that he is not an expert witness and has not signed the expert witness code of conduct. NCAT Procedural Direction 3: Expert Witnesses, “does not apply to evidence obtained from treating doctors, other health professionals or hospitals (who might otherwise fall within the definition of expert witness)” (cl 7). We consider that the Psychologist was a treating psychologist and “health professional” because he had treated the applicant in the past, and maintained that the applicant could return to see him if needed. Accordingly, we do not consider that he was required to bound by the experts’ code of conduct contained in that Procedural Direction.

67. We do not accept that the Psychologist’s evidence is to be given little weight. We have taken into account his evidence, in conjunction with a range of other evidence, in arriving at our conclusion that the applicant does not pose a risk to the safety of children.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

68. The Children’s Guardian relies on the fact that the applicant’s granddaughters were removed from his care after being exposed to domestic violence, even though they were returned to him, and that the applicant had not engaged with the Barnados service. It is noted in the risk assessment reconsideration report, that Barnados disengaged their restoration services in April 2015, due to the applicant’s “lack of engagement”.

69. In relation to the removal of the applicant’s granddaughters from the applicant’s care, we note that this occurred as a result of one of the trigger offences. However, after a contested hearing of five days, the Children’s Court made orders returning the applicant’s grandchildren to his care. Whilst the circumstances of the trigger offence are relevant, we do not consider that the removal of the applicant’s grandchildren is, of itself, relevant, especially in circumstances where they were returned to him.

70. In relation to Barnados’s withdrawal of services for the reason “lack of engagement,” the applicant states that he did not find Barnados particularly supportive in relation to his granddaughters’ behaviour. He had concerns about a strategy of a Barnados worker which he says was to “bribe” the girls with presents.

71. We are not persuaded, on the evidence before us, that the applicant’s concerns about Barnados were not justified. There was no direct evidence from any person working for Barnados before the Tribunal. In the circumstances, we do not consider that the claim that he did not engage with that service is something we should take into account in assessing the risk, if any, the applicant poses to the safety of children.

Alleged failure to comply with disclosure obligation

72. The respondent also submitted that the applicant had failed to comply with s 27(4) of the Act, which requires an applicant to fully disclose to the Tribunal any matters relevant to the application. The respondent said that the applicant was an untruthful witness insofar as he:

1. minimized domestic violence and the exposure to it of his grandchildren and step-grandson;

2. was untruthful as to the extent of his consumption of alcohol; and

3. exaggerated the counselling he attended in order to persuade the Tribunal that he changed his ways, and was neither honest nor open with the Psychologist.

73. The respondent submitted that the applicant breached his duty in s 27(4) by being untruthful to the Tribunal.

74. Domestic violence. The respondent’s submission that the applicant minimised domestic violence and was untruthful in his evidence about it relies, primarily, upon differences between the applicant’s evidence and Police facts sheets and other documents.

75. The respondent seeks to rely upon police fact sheets which allege that the applicant not only pushed his partner and pulled her hair in February 2014 (which he admits) but that he also hit his partner and dragged her by the hair. We are not satisfied, on the evidence that this occurred. The respondent did not call any witnesses to support what was said in the police fact sheets and there is no evidence that the magistrate found that the applicant had hit or dragged his partner.

76. The respondent submits that the applicant denies, in a statutory declaration of 10 October 2014, that he pulled his partner’s hair or twisted her ear, while admitting that he pushed his partner. Contrary to the respondent’s submission, the applicant admits to pulling his partner’s hair in June 2014 in the statutory declaration.

77. The respondent also submits that the applicant’s affidavit of 21 January 2016 did not mention the hair pulling, when the applicant referred to the February 2014 incident. However, the applicant freely admitted that he had pulled his partner’s hair in sworn oral evidence. The respondent relies upon a police facts sheet which states that the applicant also hit his partner on the back (which he denies). We are not satisfied, on the evidence, that the applicant did hit his partner on the back in February 2014. The only evidence of this, on which the respondent relies, is the police facts sheet, which is hearsay.

78. The respondent also points to the difference between the police facts sheet, which states that the children were in the lounge room watching television at the time of the incident, and the applicant’s evidence that they were upstairs at that time. Again, we do not consider that the police facts sheet provides reliable evidence of what occurred as it is hearsay and neither the police officer nor the applicant’s partner were called to give evidence. The applicant stated in cross examination that at least one of the children came downstairs during the argument, but was consistent in maintaining that they were initially upstairs.

79. The respondent also submits that the applicant’s evidence to the Children’s Court, that until this incident the children had never seen the applicant and his partner have an argument, implied that the children had seen the February 2014 argument. This was not put to the applicant. In any event, the applicant’s evidence to the Children’s Court is consistent with his evidence in the Tribunal that one of the children came downstairs during the argument.

80. The respondent points to differences between the applicant’s evidence that he never hit his partner and case notes made by departmental caseworkers which indicate that one of the grandchildren told two different caseworkers that he had done so. The caseworkers’ evidence is hearsay and neither caseworker was made available for cross examination. It is possible that a young child would not clearly distinguish between pushing and hitting when giving her account of events. The evidence relied upon by the respondent does not persuade us that the applicant’s sworn testimony to the contrary is incorrect. This is particularly so given that he has been consistent in the position that he never hit his partner (see his statutory declaration of October 2014). Insofar as the respondent relies upon this evidence in support of the position that the grandchildren witnessed the 2014 episode, it is not clear from the caseworkers’ account whether the child saw or heard what happened, or whether the child only witnessed what happened after she came downstairs. It does not indicate that the applicant was untruthful.

81. There is some inconsistency, as the respondent points out, between the applicant’s account that only his step grandson was present at the incident in October 2013, and the police facts sheet which states that both his step-grandson and his granddaughters were in the house (although it says that the granddaughters were upstairs, away from the incident). The applicant says that his granddaughters were at a friend’s house, and that he gave evidence about this in court, but that they had returned home by the time the police arrived. We are not persuaded by the respondent’s evidence that the applicant is not telling the truth.

82. The respondent points to other discrepancies between police facts sheets and evidence given in court in relation to a 2009 incident. These have not persuaded us that the applicant deliberately gave false evidence.

83. Alcohol consumption. The applicant stated in his oral evidence twice that he had not “had a drink in two and a half years” (transcript, p 79, line 36 and p 81 line 44). However, when asked by his counsel whether this was correct, the applicant volunteered: “I had one break-out, I think it was in April, … and one night I had three drinks, but I – I couldn’t drink alcohol regularly anyway because I’m on 15 to 16 medications a day for my health” (transcript, p 82, lines 20-24). He described the “break-out” incident as having “a couple of drinks” (transcript, p 82, line 47). In his affidavit of 24 September 2014 filed in the District Court (“September 2014 Affidavit”), the applicant stated that he had not consumed alcohol since April 2014. In his January 2016 Affidavit, filed in these proceedings, the applicant stated that he had been abstinent from alcohol since about late February 2014. He also gave oral evidence, which we accept, that his health did not permit him to drink alcohol as it interfered with his many medications.

84. Under cross examination, Ms Hartstein, counsel for the respondent, took the applicant to the transcript of the Children’s Court proceedings of July 2014 in which he said he had not had a drink in seven months. The applicant agreed that this ignored the break-out in April. It was put to the applicant under cross examination that he had taken alcohol in February 2014, which was inconsistent with what he had told the Tribunal about not having drunk alcohol since late 2013, with the exception of the break-out in April 2014. The magistrate’s decision in the Children’s Court proceedings indicated that there had been an incident in February 2014 when the applicant consumed alcohol. The applicant first said that he had not been drinking, then that he was uncertain. He later said that he had stopped drinking in 2013 but that he had had a bad day or a breakout in February 2014. When he was asked whether that day occurred in February or April 2014, he said he was not sure. However, he maintained that in his recollection there had been one break-out, not two.

85. We accept the evidence, from the transcript of the Children’s Court proceedings, that there was an incident in February 2014 when the applicant drank alcohol. We also accept that this is inconsistent with the applicant’s statement to the Tribunal that he had not had a drink in two and a half years. We find that the applicant also drank alcohol in April 2014 when he had an argument with his daughter. However, we do not accept that the inconsistencies in the applicant’s evidence are indicative of a failure to comply with s 27(4) of the Act or that they are deliberate falsehoods. We accept the applicant’s evidence that he has memory issues following a minor stroke. Our impression of the witness was that he was endeavouring, to the best of his ability, to be open and honest with the Tribunal.

73. Counselling. In terms of the allegation that the applicant exaggerated counselling, he was clear in his oral evidence that he had not been back to counselling with the Psychologist since September 2014 and that his counselling with Relationships Australia finished in 2014 (transcript, p 76, line 44 and p 77, line 16). He then gave evidence that he had seen the Psychologist again in November 2014 and January and March 2015. He explained that he went back because the Psychologist had left it open for him to come back at any time he needed to (transcript, p 78, lines 25-28, p 79, lines 12-14 and 20-24). In his September 2014 Affidavit, the applicant also stated that he had seen the Psychologist on two occasions since 29 August 2014. Whilst he omitted to state in his affidavit that he had not attended all of the counselling sessions in the 18-week Relationships Australia course, we do not consider this omission to be significant.

74. The allegation that the application was neither open nor honest with the Psychologist about the extent of his violence is not directly relevant to the respondent’s submission that he breached the duty in s 27(4) of the Act. In any event, there is insufficient evidence about what the Psychologist invited him to disclose for us to draw adverse conclusions about this.

Conclusion

88. For the reasons given above, we are not satisfied that the applicant poses a real and appreciable risk to children.

89. The Tribunal orders that:

1. The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is set aside; and

2. In substitution for that decision, the Tribunal decides 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: 28 February 2017