CFS v Children's Guardian

Case •

[2016] NSWCATAD 224

•

10 October 2016

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: CFS v Children’s Guardian [2016] NSWCATAD 224
Hearing dates:5 May 2016
Date of orders: 10 October 2016
Decision date: 10 October 2016
Jurisdiction:Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
B Field, General Member
D Kelleghan, General Member
Decision:

(1) The applicant's application for an enabling order is refused.

Catchwords: CHILD Protection – Working with Children – Risk – Whether risk real and appreciable – Serious offence – Factors subsequent to offence – Mitigating factors arising – Enabling order – Discharge of onus – Whether evidence establishes risk – Expert evidence – Limitation on evidence – Limitations of evidence of applicant.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Evidence Act 1995 (NSW)
Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111
CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
R v Commission for Children and Young People [2002] NSWIR Comm 101
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
ADV v Commission for Children and Young People [2012] NSWADT 8
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
M v M [1988] HCA 68; 166 CLR 59
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2
Category:Principal judgment
Parties: CFS (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
C McGorey (Applicant)
I Fraser (Respondent)

  Solicitors:
Dignan & Hanrahan Solicitors (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s):1510683
Publication restriction:Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

  1. The applicant in these proceedings is referred to as "CFS". CFS is the applicant's pseudonym used in these proceedings.

  2. On 30 October 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for a working with children clearance. The applicant seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act'), should be issued by the Tribunal.

  3. On 5 November 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

  4. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

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.

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.

  1. These proceedings arise because on 1 October 2015, the Children's Guardian made a decision to refuse to grant CFS a working with children check clearance. On 30 October 2015 the applicant (CFS) applied to the Tribunal for an enabling order pursuant to section 28 of the Act. There is no dispute that the application has been brought within time, or that the Tribunal has jurisdiction to hear the matter.

Background

  1. On 27 August 2015 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to facilitate the care arrangements of his parents – who maintain an arrangement for a young person (who is a relative), as authorised carers. The applicant resides on the same property as his parents (and the child in care), and due to the operation of the Act, he requires a clearance.

  2. Section 10 of the Act relevantly provides:

10 Adult persons residing with authorised carers or persons providing home care services

(1) An adult person (other than an exempt person) who resides on the same property as an authorised carer or on a property where a home based education and care service or family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children’s Guardian for a clearance.

Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.

  1. On 1 October 2015 the respondent issued a 'Notice to Disqualified person pursuant to section 18’, whereby on the respondent’s assessment, the applicant was a disqualified person as referred to in section 18 of the Act.

  2. Section 18 provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(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.

  1. The basis of this assessment was that records indicated that the applicant had been convicted of the offence of murder under section 18 of the Crimes Act 1900.

  2. Amendments to the Act which commenced on 29 October 2014 placed the applicant's offence in Schedule 2 as a disqualifying offence.

  3. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

  4. On 30 October 2015 the applicant lodged his application for an enabling order. The grounds of the application are:

Time elapsed since crime, age when crime committed, child not involved, mental state now due to suicide attempt (attached psychological report).

The working with children legislative scheme

  1. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

  2. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

  3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of section 8(1) is an offence.

  4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

  5. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

  6. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

  7. Section 18(2) provides that 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.

  8. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

  9. Section 28 (1) of the Act makes provision for an applicant (who is a disqualified person) to seek an order from the Tribunal that they should not be treated as a disqualified person. The section relevantly provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

  1. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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.

Burden of Proof

  1. 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] NSWIR Comm 101 at [130].

  2. 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].

  3. However, in this case there is a presumption that the applicant poses a risk to children as the applicant is currently a disqualified person seeking an enabling order pursuant to section 28 of the Act. The applicant is according to the legislation presumed to be a risk to the safety and well-being of children and young persons. (s-28 (7) ).

  4. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children.

  5. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would ...exclude fanciful or theoretical risk but 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". ...'

  1. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

  2. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

  1. The primary issue before the Tribunal in this application is, having regard to the material before the Tribunal, in whether the applicant should (or should not) be granted an enabling order. By extrapolation, the issue for determination by the Tribunal is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 23 above).

  2. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [20

The Hearing

  1. Before examining the evidence and material submitted at hearing, in our view a brief explanation of the applicant’s background and current circumstances is necessary. The background below is not detailed but merely illustrates the relevant aspects of and context to the applicant’s current circumstances pertinent to the ultimate task before the Tribunal.

  2. The applicant committed serious crimes over 25 years prior to the hearing. The offending involved an assault and robbery on a drug dealer, whereby the victim was stabbed numerous times and died from his injuries. The applicant was ultimately (some years later) charged and convicted of the offences, whereby his defence grounds failed and he was sentenced to 20 years imprisonment.

  3. The applicant was paroled in mid- 2011, some three quarters of the way through his sentence. From his release on parole the applicant has resided with his parents (as part of his parole conditions). Approximately 16 months after his parole, the applicant attempted to take his own life, and as a result of this attempt (at his home), the applicant suffered a significant brain injury. The applicant’s own medical evidence in a 2013 neuropsychology report noted that the applicant is described as having: “demonstrated grossly deficient intellectual skills”, “severely compromised” new learning and memory abilities and issues regarding his executive functioning.

  4. At the time of the hearing the applicant resided on his parents residential property. The Tribunal understands that the parents reside in the main house and the applicant resides in a significantly self contained and separate ‘Granny Flat’ at the rear of the property behind the main residence. It is envisaged that this arrangement would continue irrespective of the outcome of these proceedings, due to the ongoing medical and other assistance needs of the applicant.

  5. The applicant's application was heard on 5 May 2016. The applicant was legally represented by Counsel and instructing Solicitors. The respondent was also represented by Counsel who was instructed by the Crown Solicitor’s Office. At the conclusion of the hearing the Tribunal reserved its decision.

  6. As outlined above, there is a presumption under section 28 of the Act that the applicant poses a risk to children as the applicant is a disqualified person (seeking an enabling order) under the Act.

  7. Material was tendered at the hearing by both parties with the respondent tendering a significant amount of material. The applicant tendered his application with the grounds outlined above (at paragraph 13) and the report of the treating Clinical Psychologist. The application also contained written statements and signed references. In addition the applicant tendered an affidavit sworn by his father on 20 April 2016 and the report of the Forensic Psychologist C Hare. Written submissions were also filed by the applicant’s Counsel.

  8. The respondent tendered a large volume of material in two volumes which ran to approximately 770 pages and a smaller volume which ran to 98 pages. Further material was filed which constituted material obtained under section 31 of the Act, which ran to a further 500 pages. In addition written submissions were filed by the respondent.

  1. At the commencement of the evidence the Tribunal enquired briefly from Counsel into the current condition of the applicant. The purpose of this was to ascertain whether the applicant was capable of running his application, and providing instructions (where necessary), or whether (as it appeared that the purpose of obtaining the order was to facilitate care arrangements involving the applicant’s parents), there was any issue as to capacity (due to medical evidence). In addition the enquiry was to ascertain whether the applicant could appropriately give instructions where and as necessary. Whilst counsel advised the Tribunal that the applicant would not be in a position to give any direct evidence at hearing (or written testimony) due to his condition, they confirmed that the applicant was in a position to advise on the case, and no tutor was required.

Applicant's Evidence.

  1. As indicated above, the applicant did not give evidence at the hearing. The applicant’s Counsel advised that the applicant’s father and the expert would be the only witnesses giving evidence in the matter.

Witness 1 (applicant’s Father)

  1. The applicant’s father gave evidence at the hearing. The witness adopted his affidavit sworn 20 April 2016. Evidence in chief was given about the family history, and that the witness and his spouse have three children, all of whom were adopted by him, with one of the children being the birth child of the spouse.

  2. The witness sought to tender an article concerning the applicant’s success with a specific program whilst in prison. The article reported on the favourable work that inmates (including the applicant) had completed with a particular disability assistance program.

  3. The witness gave evidence that the family residence had been reorganised in order to accommodate the applicant upon his being released from prison on parole. A Granny Flat was specifically constructed for the applicant to move into on his release on parole. Evidence was given about a number of matters relating to the fit out of the Granny Flat. Due to safety concerns there is no gas stove, but only a microwave.

  4. The witness advised that the applicant accesses the main house to use the bathroom and the toilet. In addition the applicant has meals in the main house with his parents. Evidence was given by the witness on the applicant’s behalf that the applicant currently takes medication for a heart condition and medication for seizures. The later apparently arising from the applicant’s brain injury. The applicant had been attending counselling since May 2014.

  5. The witness advised that the Benevolent Society (who was involved with the foster placement of the young person), funded the expert report of Ms Hare and in that regard they are supportive of the application to the Tribunal. In addition the Benevolent Society had approved visits of the young person to the family home of up to four hours, but with the condition that the applicant not to be allowed to be unsupervised in the presence of the young person.

  6. Evidence was given that the applicant comes into the main house each morning between 6am and 7am. The witness reported that the applicant is very unstable in his balance due to his neurological condition and has significant memory problems both in short and long term memory.

  7. The applicant’s heart condition was diagnosed at 13 years of age and in addition to that medication and the seizure medication then there is no other medication that the witness was aware of.

  8. In cross examination the witness was asked about whether he argues with the applicant. The witness claims not to argue with him, and characterised the exchanges as ‘banter’ and not really arguing. In clarification however the witness indicated that prior to the brain injury in 2012 he used to argue with the applicant a lot. The witness described himself as a ‘disciplinarian’ and indicated that this was in part due to his former employment in the armed services.

  9. The witness gave evidence that on the day of the catastrophic brain injury to the applicant, there had been a significant argument. It was submitted that the subject matter of the argument had included the issue of the applicant’s parole conditions and the young person not being able to come and live at the family residence as a result of the applicant’s presence there. In this regard the Tribunal observes a tension between the parole conditions, the carers arrangement and the child protection regime.

  10. The witness’s evidence was that he was only aware of one parole breach (due to alcohol), in the applicant’s time on parole and this was prior to the brain injury occurring.

  11. The witness was taken to page 86 of Exhibit R 4 (which included the foster care agency’s case notes). Those notes refer to two incidents involving the applicant and the young person who was visiting the family residence. It was submitted that at that time, the young person was in the primary day to day care of an earlier foster parent (‘B’) and that ‘B’ had conveyed the import of a conversation between ‘B’ and the young person concerning the visit. This occurred when the young person returned to ‘B’s care. Whilst the incident (as alleged) was of concern, it was not physical. However the incident record indicated that the circumstances involved the applicant being alone with the young person. Another incident involved the young person putting the hose on the applicant and the applicant responding somewhat adversely. Again the Tribunal infers that the reaction was not serious, however there was conjecture from the circumstances, records, and recorded observations as to whether at that time the applicant and the young person were alone. On this point the witness answered that he was not aware of the applicant being alone with the young person.

  12. Counsel for the respondent took the witness to the sentencing Judge’s remarks and specifically the finding that the applicant went to the victims premises to rob the victim, and to use force if necessary. There was reference to the assessment (placement) officers asking about the serious crime committed by the applicant. At page 119 of Exhibit R4 the case notes recorded matters concerning the young person’s possible exposure to domestic violence. A child of the witness ‘G’, is the father of the young person. There was evidence that ‘G’ had engaged in domestic violence in the presence of the young person in part due to his substance / medication dependence. Reports were made by a female foster carer of the young person, and there was some concern that ‘G’ may identify the location of the young person. The Tribunal notes that whilst these matters go to the safety of a child, they do not in themselves concern the applicant directly or specifically, but rather the complex foster care, and the past and proposed placement arrangements for the young person.

  13. The witness gave evidence in cross examination that he is suffering from Post Traumatic Stress Disorder (PTSD) and that the condition is managed by medication.

  14. In re-examination the witness was asked why the earlier foster placements for the young person had concluded. The witness advised that this was because the carer’s relationship with her partner had ended and as a result the foster placement was no longer tenable.

Witness 2 (C Hare Forensic Psychologist)

  1. The Expert witness Ms Hare adopted her report dated 8 April 2016 in her evidence in chief. The witness advised that she spoke to the applicant for 1 hour in order to obtain information for her assessment.

  2. In cross examination the witness indicated that she spoke to the applicant’s parents for much longer than would usually be the case and that this was due to the applicant’s impairment. The witness advised that she administered two psychometric assessments as detailed at paragraph 34 of her report. In her view the witness does not believe that there is any discernible impact on the results of such an assessment, where a respondent (a parent) is completing the assessment in lieu of the subject of the assessment (the applicant).

  3. The witness gave evidence at the hearing that 99.9% of individuals of the applicant’s age would be functioning at a higher level. Evidence was given concerning the nature of the ‘BRIEF- A’ Test, and advised that it has validity measures built in. Whilst there is always a possibility that a respondent could minimise (responses) by thinking the best of people or providing such a position, the Test structure would identify any consistent pattern.

  4. The top 10% aspect of the results in the Behavioural Regulation Index (BRI) would indicate some concern, whereas a score below 85% (out of the top 15%) indicates matters generally of little to no real concern in the subject. However the applicant’s rating is at 93% which is well within the risk / concern area. The witness explained these results in the context of the applicant’s Metacognitive Index (MI), where he scored in the 98th percentile. The witness indicated that in respect of his risk to children, the results indicated that the applicant can appropriately inhibit his thoughts and actions so as to modulate his emotional responses. It was suggested that the applicant as a result possessed an adequate level of behavioural regulation.

  5. The witness indicated that the applicant was assessed under the 20 areas canvassed in the HRC (Historical Clinical Risk) judgement tool. When questioned about the use of the term ‘recent’ in her report, the witness advised that it refers to the last 12 months. An entry in the respondent’s evidence concerning 2011 is deemed in the expert report to be a historical (rather than recent) matter.

  6. In respect of a reference to the applicant having experienced recent problems concerning a major mood disorder, the witness advised that the applicant’s ability to evidence insight is limited. Counsel for the respondent questioned the witness about her experience with cognitive impairment and the applicant’s position. The witness gave evidence that she has experience in assisting persons with brain injuries, but that she had limited experience in assessing someone who had a violent past and then suffered a brain injury, particularly of a subject where there had been no ‘adverse’ reports since that time.

  7. Counsel asked the witness whether the fact that the applicant had fairly recently suffered a brain injury introduces a level of uncertainty in the assessment report. The witness answered that it did bring uncertainty into the content of the report.

  8. Reference was made to the Discharge Report from the Violent Offenders Program. There is a moderate risk for general recidivism from that report, whereas the Expert’s Report gives a low risk for violent offending recidivism. The violent offenders report prepared by two psychologists was from late 2009. When asked what had changed between the two assessments, the witness indicated that the applicant was living in his family home, and had been released from custody.

  9. When asked whether the applicant (in the witness’s view) still experienced problems regulating his emotions the witness answered in the negative. Her evidence was that there was no evidence of that problem, but agreed that it is a concern. By way of qualification the witness stated that there was no evidence that it is a significant risk factor in respect of the applicant.

  10. The testimony was that the applicant does not have the cognitive ability to be mindful of a child’s welfare, for a child that is solely within his care.

  11. In re-examination the witness was asked whether a potential ‘X factor’ situation would elevate risk in respect of the applicant’s behaviour. Whilst this was a possibility, it remained a possibility for all individuals. The Tribunal also inquired of the witness of the specific issues tied to the cognitive problems of the applicant. The witness advised that whilst they were relevant there was no evidence before her to indicate that they lead to any violent reaction by the applicant.

The Respondent's evidence and submissions

  1. The respondent filed written material as set out at paragraph 40 (above). The material includes matters concerning the applicant’s criminal history, criminal justice legal process material, material relating to the applicant’s time serving a custodial sentence, and parole information. Material was also submitted by the respondent as a result of notices under section 31 of the Act, and summons. This included Community Services material, material from the placement agency (Benevolent Society), and some NSW Police material relating to the suicide attempt.

  2. This material was specifically referred to in part during the examination of the two witnesses for the applicant and addressed in Counsel’s submissions.

  3. In submissions the respondent’s Counsel submitted that the Expert Witness qualified her written opinion somewhat during her oral evidence. In that regard the Tribunal should be mindful of the concessions made to the report at the conclusion of the evidence.

  4. It was submitted that the Act requires the Tribunal to make an assessment of the safety to children in general. The respondent submitted the accepted proposition that under the Act, the applicant is deemed to be a risk, in that there is a presumption that he poses a risk to children generally, by virtue of the fact that the proceedings are brought under section 28 of the Act seeking an Enabling Order.

  5. The respondent characterised the circumstances of the current evidence and material as being a somewhat unusual case. This it was submitted was due to the 2012 incident where the applicant attempted to take his own life, and that as a result the applicant was (it was conceded) unable to give evidence in the proceedings.

  6. As a result of this position, it was submitted that the Tribunal is more reliant on Ms Hare (the Expert Witness) report and assessment. It was submitted that the expert’s evidence establishes that the applicant’s condition creates matters of uncertainty in her initial and overall assessment, in addition to the imprecise science of risk assessments generally.

Applicant's submissions

  1. The applicant provided detailed affidavit from his father and the other evidence referred to in paragraph 39 above. Written submissions were tendered by his Counsel who also made oral submissions at hearing. As outlined above the applicant did not take any active role in the proceedings, other than apparently completing and lodging the application to the Tribunal.

  2. It was submitted that the Tribunal should focus on paragraphs 79 – 91 (inclusive) of the applicant’s written submissions. These paragraphs dealt with the issue of caring for or supervising a child.

  3. The applicant submitted that in the expert’s opinion the applicant is not fit to care for or supervise a child, however that lack of capacity it was submitted does not present a real and appreciable risk to the safety of children. It was submitted that the Working With Children (WWC) regime is not designed as a process for assessing an individual’s capacity to supervise a child. It remains open to the Department and the Benevolent Society to make their own assessment in respect of the placement in respect of suitability criteria outside of the scope of the Act.

  4. It is only adults who are required to traverse a WWC process and clearance in order to carry out the role.

  5. It was submitted that the applicant had been compliant and that there was nothing indicated in the recent behaviours that would indicate that he would be a risk (in the context of the provisions of the Act).

  6. It was agreed by Counsel that the disqualifying offence was a serious offence, but that the Tribunal should take into account that the offence occurred 26 years prior.

  7. In respect of the family (placement) dynamics, it was submitted that the report that the applicant had acted inappropriately with a sibling during childhood should be discounted.

  8. In written submissions the applicant outlined how the psychological report of Mr Kirton (Clinical psychologist) of August 2015 should not be taken out of context. The report referring to a mitigating factor that the applicant should not be left alone with the young person. However it was submitted that when the report was read in its entirety the finding was qualified as being based on his overall low state of mental functioning, not because the applicant represents a risk of harm.

Section 30 (1) considerations

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

  1. The applicant was charged and convicted of the offence of Murder in 1998. The offence that gave rise to that conviction occurred some years earlier. The offence is one of the most serious offences in the criminal law and attracts a penalty which can include life imprisonment. Whilst the circumstances of the offence were in dispute at trial, the findings of the Court indicate in our view that the offending was towards the more serious end of the scale of the offence when having regard to the proof material. These matters were addressed by the sentencing Judge in the sentencing reasons. We note that the offence occurred in aggravating circumstances.

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

  1. The applicant's offending occurred approximately 26 years prior to the hearing. However there was a significant delay in the applicant being prosecuted, convicted and sentenced for the offences. The applicant committed further offences prior to being charged and remanded in respect of the disqualifying offence. Those offences did not directly involve violence but some were serious offences when having regard to the maximum available sentencing penalty.

  2. During his over 15 years in custody there were 42 reported incidents relating to breaches of discipline. After more than decade in custody the applicant completed a violent offender treatment program which appeared to result in a behavioural improvement indicating more pro social elements.

  3. There was some evidence that the applicant had attempted to minimize his offence (both in his defence and ongoing assessment following the treatment program). These issues were unable to be properly tested beyond the counselling reports due to the applicant’s impairment.

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

  1. The applicant was approximately 19 years old when the when the disqualifying offence 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.

  1. The victim was 23 at the time of the offence. The victim was an adult and (as we understand it) not vulnerable due to age, incapacity or any other reason. In that regard we infer that there are no relevant matters going to vulnerability.

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

  1. The victim of the offence was four years older than the applicant. The relationship between the parties appears to be one of a criminal nature, in that the relationship was of drug supply.

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

  1. The victim was not a child.

(g) The person's present age.

  1. The applicant was 44 years old at the time of the hearing.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

  1. The relevant criminal record comprises the disqualifying offence. Due to the nature of this offence, and the fact that there is one other serious offence on his record, (involving a firearm), and the robbery offence at the time of the disqualifying offence, the applicant’s criminal record is serious. In our view this is in addition to the other suite of less serious offences relating to drug use and dishonesty which occurred in the years following the disqualifying offence.

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

  1. A risk assessment was provided by the applicant in respect of his application and an assessment of his real and appreciable risk of reoffending or behaving in a manner detrimental to the safety and well-being of children. The report whilst indicating a low risk of further violent offences, in respect of his risk of harm to children, that risk is couched as ‘low’ but in the context of the applicant residing with his parents if they became carers of the applicant’s nephew.

  2. It is conceded by the parties that any repetition of the offences or conduct would have a devastating and detrimental impact on any children.

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

  1. The applicant has provided a Psychologist report (see above), and a number of supporting documents concerning the applicant’s rehabilitation from his criminal past. In addition an affidavit from his father, as well as psychological treatment reports were provided.

  2. The applicant submits through his Counsel that the Tribunal should have no regard to a certain allegation concerning an alleged assault on a sibling, when both were children. Even though this is a protective jurisdiction, in our view due to the exculpatory evidence contained within the written materials (Benevolent Society Risk Assessment), and the fact that the respondent did not seek to test the allegation via that material (the witness), we have determined to place no weight on that allegation in considering the applicant’s overall risk.

  3. The expert report concedes that the acquired brain injury of the applicant clearly complicates her assessment of his overall functioning, but primarily his level of risk is addressed.

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

  1. The Children's Guardian submitted that the applicant posed a risk. In addition to the other submissions in the matter they noted that in 2011 Community Services determined that the allegation referred to at paragraph 96 (above) coupled with his criminal antecedents, meant that it was unsafe for the young person to reside with his Grandparents if the applicant was living there.

  2. In addition the Children’s Guardian (in our view appropriately) submitted that further untested information concerning sexualised behaviours of the young person after commencement of the supervised visit placements at the residence, should not be afforded any significant weight. We note the complex domestic and placement background of that young person, and accordingly we reach a similar position concerning weight.

Consideration

  1. We have carefully considered all of the material submitted by the parties in these proceedings. Whilst we note that the applicant is a disqualified person, the task of the Tribunal is to ascertain whether the applicant is a real and appreciable risk to the safety and well-being of children and young persons.

  2. There are many cases which address the issue of how risk should be considered and what findings if any can be made on such matters in the context of this jurisdiction. In the current case the findings as to the conduct in respect of the disqualifying offence is clear. The findings were established by a finding of a criminal Court of guilty. In respect of the other matters in the applicant’s history, they predominantly are determinative in that positive findings as to their veracity have been made by a Court. We do not glean any significantly unresolved matters or charges, other than the allegations referred to in paragraphs 95, 97 and 98 above. In those matters we have already indicated that little weight can be given to those allegations based on the evidence and material before us.

  3. In respect of the other material before us and matters contested somewhat during the hearing and submissions, any minor deviation from certain facts are in our view of little consequence when the totality of the evidence and material is considered. In this regard we refer to inconsistencies when various records are compared.

  4. In the case of BFC v The Children's Guardian [2014] NSWCATAD 90 His Honour Judge Mullane considered the issue of risk in respect of an enabling order application. At paragraphs 57 to 58 His Honour considers the conclusion of the expert witness and the meaning that this carries in respect of risk. At paragraph 58 reference to Young J's comments in the case of 'V' are considered.

57.Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.

58.In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section [At par 41] and [at par 42]:

"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence".

"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'".

  1. We have carefully considered all of the evidence and submissions given, and material filed by the parties even if we have not referred to every aspect of it specifically in these reasons.

  2. We note that the respondent submitted in written submissions matters relating to the Tribunal needing to alert the applicant if it was considering making a positive finding in respect of allegations. The case of BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 was referred to in this regard. As the Tribunal does not propose to make any such findings as set out in paragraphs 95, 97, 98 and 100 (above), in our view no matters need to be foreshadowed with the applicant.

  3. However in respect of determining whether there is a real and appreciable risk, leading to the ultimate conclusion in respect of an enabling order, that is the matter before us at hearing and no further notice is in our view required.

  4. Having regard to the material before the Tribunal, in our view there is sufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

  5. Whilst it may be that there is little or no risk from the applicant in the supervised context for which the enabling order is sought, unfortunately the legislation does not recognise any limited application of a clearance. If the Tribunal was to make an Enabling Order, the Children’s Guardian working with children check clearance must be unconditional, and would provide authority to the applicant to work with children in any context, even if in practice this was not going to eventuate.

  6. We note that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions, and that under section 28 (7) an applicant is presumed to pose a risk to children unless the applicant proves to the contrary.

28 Orders relating to disqualified and ineligible persons

(1) ….

(2) ….

(3) ….

(4) ….

(5) ….

(6) ….

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

  1. Whilst the significant cognitive and mental impairment appears to be appropriately managed at present, and leads to a finding by the expert of the applicant presenting as a low risk, we are not satisfied to the requisite standard (real and appreciable) that the applicant does not pose a risk to the safety and well-being of children. In this regard we note the oral evidence of the expert when asked to elaborate on her report, about the applicant’s ability to regulate his emotions. Whilst the witness answered in the negative, in that in the material before her there was no evidence of that problem, she agreed that it is a concern. In qualifying that statement the witness stated that there was no evidence that it is a significant risk factor in respect of the applicant. In addition we note the expert evidence that due to the applicant’s condition, there is the creation of potential aspects of uncertainty in respect of the assessment and its conclusions. In this regard we have had regard to the evidence in paragraph 63 (above). This is not intended as a criticism or rejection of some of the findings of the report, but constitutes relevant considerations leading to findings arising from a thorough consideration (including testing at hearing) of the report.

  2. In our view the cumulative position of the suite of psychological evidence (including the tested expert evidence), is that a residual concern remains as to risk, a risk that (globally) is both real and appreciable. We make this finding separately and in addition to the presumption under section 28 (7) of the Act in respect of the criminal conduct of the applicant

  3. In some evidence and material before us it could be considered that the applicant is incapable of caring for a child unsupervised, (as outlined in aspects of the evidence). This appears to be predominantly due to his injury and subsequent deficient. This in itself could be considered a risk (that is both real and appreciable). However we have refrained from making any finding in that regard and base our findings on the matters expressed above at paragraphs 109 and 110 and noting that the applicant as a result has not discharged the onus.

  4. Whilst we accept that the matters relating to the applicant’s ability or abilities might be relevant, we also agree with the applicant’s Counsel position that caring for a child and risk to children are different matters requiring different considerations and tests. In part for that reason we have avoiding making any findings that the evidence leads to a lack of capacity in itself posing a real and appreciable risk.

Conclusion

  1. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, we reach the following conclusion.

  2. The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.

  3. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

  4. In expressing these views above we note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

  5. In our view having regard to all of the material before the Tribunal, the applicant does pose a risk to the safety of children.

  6. It therefore follows that the Tribunal should not make enabling order in accordance with section 28 of the Act.

Orders

  1. The applicant's application for an enabling order is refused.

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

01 August 2017 - 1/8/17 Typographical errors corrected


paragraph 6 - 2014 changed to 2015


paragraph 10 and 11 correction of text

Decision last updated: 01 August 2017

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Cases Citing This Decision

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Cases Cited

11

Statutory Material Cited

8

Commission for Children and Young People v FZ [2011] NSWCA 111
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69