CEI v Children's Guardian

[2016] NSWCATAD 66

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CEI v Children’s Guardian [2016] NSWCATAD 66
Hearing dates:	24 March 2016
Date of orders:	12 April 2016
Decision date:	12 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member R Royer, General Member
Decision:	The decision of the Children’s Guardian to refuse to grant the Applicant a Working with Children Check clearance is set aside.
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 – refusal of Working with Children Check clearance – what the correct and preferable decision is having regard to the material before the Tribunal - whether the Applicant poses a risk to the safety of children – where Applicant is long term authorised carer of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CEI (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: Ms Neville (Applicant) Mr Fraser (Respondent) Solictors: Legal Aid (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1510584
Publication restriction:	Pursuant to s 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the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.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

1. The Applicant, CEI, 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 Child Protection (Working with Children) Act 2012 (“the Act”).

2. The Applicant is a 49 year old Aboriginal man who lives in regional New South Wales. He has long-term defacto partner, Ms H. Together they are the authorised carers of four children who have been in their care for approximately 8 years pursuant to a kinship placement.

3. On 30 July 2013, by virtue as his status as an authorised carer, the Applicant was required to apply to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.

4. The Respondent conducted a risk assessment of the Applicant, and on 31 August 2015, determined to refuse the Applicant’s application for a Working with Children Check clearance.

5. On 24 September 2015, being dissatisfied by that decision, the Applicant made this application for review of the Respondent’s decision. He sought a stay of the decision, which was granted by the Tribunal on 5 November 2015, with directions, including that he abide by any conditions imposed by the Department of Family and Community Services (“the Department”).

The Child Protection (Working with Children) Act

6. The objects of the Act are as follows:

3 Object of Act

The object of this Act is to protect children:

(a) By not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have Working with Children Check clearances.

7. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse.’

8. The Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant Working with Children Check clearance, or (b) there is a current application, by the person, to the Respondent for the relevant Working with Children Check clearance: s 8(1). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

9. Section 18 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. In this case, the Applicant is not a ‘disqualified person’ and the subsection does not apply to him.

10. Subsections 18(2) and (3) apply to all other applications. 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.

11. A person is subject to an “assessment requirement” if any of the matters specified in Schedule 1 of the Act apply. This includes circumstances where the person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.

12. According to the Respondent’s records, the matters which triggered a risk assessment of the Applicant were his convictions for offences of violence which occurred between 1988 and 2005.

13. In making an assessment, the Respondent may consider the following factors set out in section 15(4) of the Act:

1. the seriousness of any matters that caused the assessment in relation to the person,

2. the period of time since those matters occurred and the conduct of the person since they occurred,

3. the age of the person at the time the matters occurred,

4. the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

6. whether the person knew, or could reasonably have known, that the victim was a child,

7. the person’s present age,

8. the seriousness of the person’s total criminal record and the conduct of the person since the matters occurred,

9. the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

10. any information given in, or in relation to, the application,

11. any other matters that the Children’s Guardian considers necessary.

14. Having undertaken a risk assessment under section 15, on 3 February 2015 the Respondent initially recommended a clearance be granted to the Applicant. However, upon further review, the Respondent determined to refuse the Applicant’s application for a clearance as she was satisfied, pursuant to section 18(2), that the Applicant poses a risk to the safety of children.

Role of the Tribunal

15. Section 27 of the 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. 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.

16. 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 all of the material before it, including any relevant factual material which may not have been before the Children’s Guardian. Administrative Decisions Review Act 1997, s 63.

17. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

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

19. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.

20. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.

21. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.

22. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.

23. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

“33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

Administrative Decisions Review Act 1997

24. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders:

1. to affirm the decision of the Respondent, or

2. to vary the decision, or

3. to set aside the decision and make a decision in substitution for the decision it set aside, or

4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.

25. At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

26. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) :

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.

27. 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."”

28. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE), at [26].

29. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an Applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

Burden of proof

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

31. Although the Applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

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

33. The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

34. The Respondent tendered into evidence the Respondent’s risk assessment report, and documents provided by government departments and agencies, including the NSW Police, the courts, Corrective Services, and Family and Community Services.

35. The Applicant relied on his application and two affidavits sworn on 23 October 2015 and 16 March 2016, as well as affidavits sworn by his partner, Ms H, and Mr P, the mayor of the area in which the Applicant and Ms H reside. The Applicant tendered a psychological assessment report dated 15 January 2016, by Dr Katie Seidler, Psychologist.

36. The Applicant, Ms H, and Dr Seidler gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent.

37. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

(a)Seriousness of any matters that caused the refusal of the Applicant’s application for a clearance

38. The matters that caused the refusal of the Applicant’s application for a clearance were offences of violence committed by the Applicant between 1988 and 2005.

39. The offences include offences of assault, (including assault police and assault female), assault occasioning actual bodily harm, violent disorder and affray. Facts are not available for all of the offences. However, it appears that most were committed by the applicant while affected by alcohol and in public places. All of the offences proceeded to conviction and sentence in the Local Court, and the Applicant received various sentences, including good behaviour bonds, community service and imprisonment.

40. The Applicant’s 2005 offence of common assault involved his partner, Ms H. It occurred in the context of the Applicant and Ms H drinking alcohol at a hotel and becoming involved in an argument. The Applicant punched both Ms H as well as a person who intervened. On a severity appeal, the Applicant was ordered to perform 100 hours of community service. The Applicant was also referred for Circle of Sentencing in which he was required to face Elders of his community, admit his offences and be subject to their determination.

41. In his evidence, the Applicant acknowledged his criminal history and his alcohol abuse at the time the offences were committed. Initially in his evidence, he could not recall the circumstances of the offence in 2005 in respect of which his partner was a victim. However, the Applicant admitted that due to his level of intoxication at the time of his offending, he had little or no memory of the details of the offence, but he accepted his partner’s evidence in relation to its commission.

42. It appears that the majority, if not all, of the offences were committed in the context of alcohol use by the Applicant. Notwithstanding that none of the offences were dealt with on indictment, they are objectively serious. Convictions for certain offences resulted in custodial sentences being imposed. None of the victims of the Applicant’s offending were children and there is no evidence that the offending was committed in the presence of children. However, it is clear that children can be both the direct and indirect victims of violence, and in this regard, the Applicant’s offences are both serious and relevant to the issue of whether the Applicant poses a risk to the safety of children.

(b)The period of time since the matter occurred and the conduct of the Applicant since that time

43. It is approximately 11 years since the Applicant was last charged with a criminal offence.

43. As part of his sentence for his last offence in 2005, the Applicant participated in Circle of Sentencing by Elders of his community. According to the Applicant, he was very much impacted by that experience. It made him feel ashamed of his behaviour, and acted as a personal deterrent. In addition to the Circle of Sentencing, the Applicant attended a residential drug and alcohol rehabilitation program. He also attended alcohol counselling from a medical centre on a weekly and later, fortnightly basis. He voluntary attended individual mental health counselling to assist with management of his emotional responses. Since his last offence, the Applicant has reduced his alcohol consumption significantly, and now only drinks socially, usually on weekends with Ms H and other family member/s.

44. In addition, since 2008, the Applicant and his partner have been responsible for the care of four children who were removed from their biological parents. The children, who are siblings including twins, are the nieces and nephews of Ms H and were placed with the Applicant and Ms pursuant to a kinship placement. The children were toddlers and babies when they entered the care of the Applicant and Ms H, and are now aged 12, 10 and 8 years.

45. The Applicant, who was previously employed by his local council, gave up paid employment to assist Ms H in caring for the children. He is actively involved in the children’s lives, including the preparation of their meals, helping with their homework and with their school and sporting commitments. As he is the only person in the family with a drivers licence, he is responsible for transporting the children as required. One the twins suffers from health issues which require regular attendance for specialist medical review, and includes travel outside of the local area.

46. The Department’s records indicate that in 2010 information was provided to the Department by a person who had been told by another person that the Applicant and his partner would drink very heavily with other people in the home while the children were in their care. The person also reported concerns of inadequate care being provided by the Applicant on those occasions. There were no details provided about the author of the report, whose identity remains unknown. In his evidence, the Applicant strongly denied the allegations, stating it was merely small community gossip. Notably, following the receipt of the information, the matter was not investigated by the Department and no further action was taken in relation to the matter.

47. It appears that the receipt and analysis of the 2010 record was relevant to the Respondent’s decision to reverse its initial recommendation that the Applicant be granted a Working with Children Check clearance. However, the Tribunal considered that there were significant deficiencies in the evidence, which is hearsay evidence of a remote kind. In particular, it is a document created by a person upon information provided by another person who did not in fact observe the Applicant’s actions, but rather was conveying information told to him/her by another person. In addition, it appears that neither the Department nor the Respondent took steps to investigate the report and the information contained therein. The Respondent conceded that no great weight should be placed on the evidence. For the concerns outlined, the Tribunal was likewise of the view that little weight should be accorded to that evidence.

48. The Applicant’s application was made in July 2013 as a result of the Department’s requirement that the Applicant, as an authorised carer of the four children have a Working with Children Check clearance. As a result of the Respondent’s decision on 31 August 2015 to refuse the Applicant a clearance, the Applicant was required to immediately cease his care of the children. He agreed to leave the family home in order that the children could stay together under the care of Ms H. The Applicant remained living away from the family home until 5 November when a stay of the Respondent’s decision was granted by the Tribunal.

49. Since the stay was granted, the Applicant has been subject to various conditions imposed by the Department. Those include that he not be left alone with the children overnight or for more than two hours, that he not consume alcohol in the home or have contact with the children following alcohol consumption outside of the home, and that he participate in a carer review assessment and be subject to random home visits by Departmental officers.

50. The evidence indicates the Applicant has complied with the directions of the Department in relation to his care of the children. Furthermore, there is no evidence that the Applicant has breached any of the conditions imposed upon him since the granting of the stay in November 2015.

(c)The age of the Applicant at the time the matters occurred

52. At the time of commission of the offences, the Applicant was aged between 21 and 38 years.

(d)The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

53. At the time the Applicant committed the 2005 offence against Ms H, Ms H was 42 years old. The ages of the other victims of the Applicant’s offences are not known. However, none of the victims were children.

54. The offence involving the Applicant’s partner involved an argument during which both had been drinking alcohol. In his oral evidence, the Applicant could not recall the matter proceeding to conviction and sentence. However, he accepted the evidence of Ms H that it did occur and also conceded that his memory of the offending was affected by alcohol intoxication.

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

55. With the exception of the offence involving Ms H (Ms H is 4 years older than the Applicant) the differences in age between the Applicant and the victims are not known.

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

56. None of the victims of the Applicant’s offences were children.

(g)The Applicant’s present age

57. At the time of the Tribunal hearing, the Applicant was 49 years of age.

(h)The seriousness of the Applicant’s total criminal record and the conduct of the Applicant since the matter occurred

58. In addition to the offences outlined in preceding paragraphs, the Applicant has convictions for other offences which include resisting arrest, offensive behaviour, property and driving offences. However, with the exception of a driving offence, all of those offences occurred prior to 2006.

59. Further details of the Applicant’s conduct since 2005 are detailed in earlier paragraphs.

(i)The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

60. In regard to the likelihood of any repetition of engaging in similar conduct in the future, the Applicant relied on the written report and oral evidence of Dr Seidler, Psychologist. As part of her assessment, Dr Seidler had before her the documentary evidence that comprise the exhibits before the Tribunal.

61. In her report, Dr Seidler details the Applicant’s background, including his excessive use of alcohol in the past which was modelled by his father and grandfather. It included the Applicant being intoxicated on a daily basis to the point of losing consciousness. Dr Seidler stated that the Applicant admitted that his alcohol use made him more impulsive, reckless and aggressive, and contributed heavily to his criminal behaviour. During the assessment, the Applicant told Dr Seidler that following drug and alcohol rehabilitation and counselling, he significantly reduced his alcohol consumption. He told Dr Seidler he now drinks only once a fortnight and at safe levels. He confirmed that he had benefited from drug and alcohol rehabilitation and also from having the children in his care.

62. In her report, Dr Seidler states the Applicant “is a man who has a troubled past associated with anger, violence and antisociality, largely within the context of alcohol abuse. ………… (the Applicant) impresses as a reasonably unsophisticated person and to this end, his insight is somewhat superficial. Nonetheless, the evidence is that he is managing safe alcohol use and that he has not re-engaged in acts of violence or antisociality now in some time”.

63. Dr Seidler assessed the Applicant’s risk of future violence utilising the HCR-20 assessment. The Applicant was assessed as posing a low-moderate risk of future violence. However, Dr Seidler conceded that the “risk is more salient for adults rather than children or young people as there is no evidence that he is a risk to young people”. [1]

    1. Report of Dr Katie Seidler dated 15 January 2016, paragraph 65

64. In Dr Seidler’s opinion, alcohol abuse is the most serious contributor to the Applicant’s violence, and if the Applicant is able to continue to manage his alcohol use safely, the risk should be minimised. Dr Seidler opined that the Applicant does not require any further intervention to manage his risk, especially as he has completed treatment previously and apparently benefitted from it. However, Dr Seidler cautioned that significant destabilisers (such as marital difficulties) are likely to exacerbate the Applicant’s risk should they occur. Dr Seidler expressed the opinion that the Applicant is capable of working with children and young people with reasonable safety, including his role in caring for the four children in his care. Finally, Dr Seidler states: “…the reported history of the last ten years would suggest that (the Applicant) has matured, stabilised and is able to manage his risks adequately” [2] .

    2. Ibid, paragraph 67

65. In her oral evidence, Dr Seidler reiterated that the assessment of the Applicant’s risk of future violence relates to his risk generally (i.e. to adults), and although conceding that children can be the indirect victims of violence, Dr Seidler stated that the Applicant’s specific risk to children is significantly lower. Furthermore, Dr Seidler stated that generally the risk of re-offending is greater in the period within 3 to 5 years of the offending, and that the absence of offences for a decade would further reduce the risk.

66. The Tribunal found Dr Seidler’s written risk assessment report and her oral evidence to be both comprehensive and persuasive. The Tribunal also took into account that Dr Seidler’s opinions were not contradicted by any other expert evidence.

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

67. The Applicant seeks a clearance solely to enable him to resume the care of the children. Specifically, he has expressed no intention to seek employment in child-related employment. It is also of some relevance that the initial view formed by the Respondent was that a clearance should be granted to the Applicant on the basis that he was not considered a risk to the safety of children.

68. Notably, the Respondent did not impose an interim bar on the Applicant at any point during the two-year period from receipt of the application to the making of the final decision. In addition, there is no evidence during this period that any specific conditions were imposed on the Applicant by the Department, and he was able to remain as an authorised carer of the four children in his and Ms H’s care. Relevantly, it was only following the Respondent’s decision on 31 August 2015 that the Applicant was effectively prevented from carrying out his care of the children and which resulted in his departure from the family home.

69. In his evidence, the Applicant said that being a carer for the four children has been the best thing that has ever happened to him. He said that he is nothing like the person he was at the time he committed the offences, and his alcohol consumption is totally different. Rather, he said that now he may drink on a weekend, sharing a carton of light beer with two others, and that he would give it (drinking alcohol) away tomorrow if he had to. The Applicant also said he makes better choices; he does not go to the pub and does not associate with the same circle of people from his past.

70. The Applicant has been in a relationship with Ms H for the past 23 years. She has an adult daughter from a previous relationship with whom both she and the Applicant have a close relationship. Prior to the children coming into their care, Ms H worked at a women’s refuge in the local community.

71. In her evidence, Ms H acknowledged the Applicant’s assault of her in 2005. However, she cannot recall many details of the offence, noting it was committed in the context of them both drinking alcohol. Ms Hardy stated the Applicant used to drink heavily and would become angry and aggressive. However, Ms Hardy said that the Applicant is nothing like the person he used to be, and that it had been about 10 years since the Applicant stopped abusing alcohol. She stated that since the Applicant sought help and attended rehabilitation he no longer gets drunk. She stated she cannot recall the last time the Applicant was angry or raised his voice, and she considers him an example of someone who can turn their life around. She also said that she will not tolerate family violence, and if the Applicant were still in the same frame of mind as he was in the past, she would not have him in her house and with the children.

72. Ms H became visibly distressed when questioned about the impact the Respondent’s decision to refuse to grant the Applicant a clearance. She indicated it has been devastating for their family. She stated she feels like a single mother of four children, and the children are upset and confused about the situation. In addition, Ms H said the two older children had started to rebel a bit because the Applicant was not present in the home.

73. The Applicant relied upon an affidavit of Mr P, the mayor of the community in which the Applicant lives and someone who has known the Applicant for 15 years. Mr P, while not privy to the full extent of the Applicant’s criminal record, is aware that the Applicant has a criminal history, including for acts of violence and alcohol related offences. Mr P said that for the past 10 years he has observed the Applicant to be a respected member of the local community who is providing a positive role model for the children in his care.

74. The Tribunal notes that as part of the risk assessment process, the Applicant provided character references. One such reference was given by a director of a local learning facility previously attended by the children in the Applicant’s care. The referee, who has known the Applicant for 20 years, indicated to the Respondent that she had seen him make positive changes.

75. On 6 December 2015, a kinship carer assessment was carried out at the request of the Department. The assessor observed that both the Applicant and Ms H place a high level of importance on the children remaining together and connected as a family. The children were observed as having a clear attachment and bond to the Applicant and Ms H, who they refer to as their “mum” and “dad”. The Applicant and Ms H were observed to respond warmly and positively to the children, who appeared happy and smiling. The assessor assessed the current placement as meeting the children’s needs and recommended that the Applicant and Ms H remain the long-term kinship carers of the children.

76. Counsel for the Applicant submits that the Applicant does not pose a risk to the safety of children and the Respondent’s decision should be set aside. In particular, Counsel for the Applicant noted that Dr Seidler’s assessment of low to moderate risk was as a result of static factors, namely the Applicant’s criminal history, which cannot be changed. However, Counsel said that the risk is a general risk of violence which is likely to be targeted at adults rather than children. Furthermore, Counsel submits that the Applicant has made permanent changes to his life, and there is no evidence of destabilising factors to put such changes at risk. Counsel submitted that regard should be had not only to the fact the Applicant has remained crime-free for a decade, but also to the protection that the Applicant and Ms H have given to the children in their care.

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

77. The Respondent opposes the application. However, the Respondent conceded that there has been a sea change in the Applicant’s life, and there is now a marked difference between the period when the Applicant had a series of similar convictions, and his current circumstances. However, the Respondent submits that the Tribunal may conclude that the Applicant poses a low to moderate risk of violence generally, and this may pose an indirect risk to children.

Conclusion

78. In this matter, the role of the Tribunal is to review the decision of the Children’s Guardian to refuse the Applicant a Working with Children Check clearance, and 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.

79. Relevantly, a Working with Children Check clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children.

80. The Applicant comes before the Tribunal with a criminal history of offences dating from 1988, and which has included matters involving assault and violent behaviour. The existence of those facts gives rise to concern and has required careful consideration by the Tribunal.

81. Whilst the Applicant’s offences were objectively serious, and include an offence against his defacto partner and an offence of assault occasioning actual bodily harm, the Tribunal notes that none of the Applicant’s offending has been committed against a child. In addition, the last offence with which the Applicant was convicted occurred 11 years ago, and therefore is not recent conduct. It is clear that at the time of his offending, the Applicant was a very heavy user of alcohol. His offending, although serious and his intoxication not an excuse, was committed in a context of significant alcohol abuse.

82. The Tribunal notes that the Applicant successfully attended rehabilitation in 2006 and it is evident that he has made important changes to his lifestyle since that time. He has significantly reduced his alcohol intake and has changed the circumstances of his consumption. The Applicant’s lack of recent convictions coincides with his reduction in alcohol use. The change has been in effect for more than 10 years. Notably, it has been reinforced by the Applicant’s responsibilities of caring for four children who were removed from their biological parents. His change in lifestyle is corroborated by his partner and others.

83. The Tribunal finds that the Applicant loves and cares deeply for the children in his care and is genuine in his desire to raise the children to the best of his and his partner’s abilities. The Tribunal was satisfied that the Applicant has accepted responsibility for the poor conduct and the poor choices he has made in the past, and is committed to remaining outside of the criminal justice system and with the focus of the care of the children as his priority. He enjoys a stable relationship with Ms H, and is actively involved in his children’s lives and in his local community.

84. In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely drug and alcohol rehabilitation and counselling to address his use of alcohol, and no further interventions are considered necessary.

85. The Tribunal gave considerable weight to the expert evidence, which was not contradicted by any other professional evidence. The Tribunal accepted Dr Seidler’s opinion that although there exists a low to moderate risk of violence generally, the Applicant does not pose a specific risk to the safety of children. Moreover, the Tribunal noted Dr Seidler’s oral evidence that the risk of future violence is reduced even further in light of the period of time in which there has been an absence of offending.

78. Furthermore, the Applicant is (and will remain) subject to regulation as a consequence of his role as an authorised carer of children in ministerial care. In this regard, there are safeguards in place in relation to that role, including conditions that may be imposed on the Applicant should the circumstances warrant it.

79. Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, the Tribunal is satisfied the Applicant does not pose a real or appreciable risk to children, and the correct and preferable decision is to grant the Applicant a Working with Children Check clearance.

ORDERS

88. Accordingly, the Orders of the Tribunal are as follows:

1. The decision of the Respondent is set aside.

2. The Respondent must grant the Applicant a Working with Children Check Clearance.

Endnotes

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

14 April 2016 - Amended name

Decision last updated: 14 April 2016