CHZ v Children's Guardian

[2017] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CHZ v Children’s Guardian [2017] NSWCATAD 120
Hearing dates:	20 September 2016
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member, J Goodman-Delahunty, General Member
Decision:	The decision of the Children’s Guardian dated 13 November 2015 to refuse the applicant’s Working With Children Check clearance is set aside. In substitution for that decision, the following decision is made: The applicant is granted a Working With Children Check clearance.
Catchwords:	Administration Law – s27 of the Child Protection (Working with Children) Act 2012 – refusal of Working With Children Check clearance – criminal record – domestic violence – anger management strategies – approved as a foster carer.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Interpretation Act 1987
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CHZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)     Solicitors: Thompson Madden (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	2015/00383652. 1510782
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the Applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, who will be referred to as CHZ, requires a Working With Children Check clearance to work as a driving instructor. CHZ has two teenaged children with whom he has regular contact.

2. He applied for a Working With Children Check clearance on 1 April 2014. On 13 November 2015, the Children’s Guardian refused to grant him a clearance on the basis of his criminal history, the relatively recent nature of his offending and the absence of information that would serve to mitigate the risks associated with his criminal record.

3. The applicant applied for a review of this decision on 10 December 2015. A hearing was held in this Tribunal (‘the Tribunal’) on 20 September 2016.

Legal principles

4. The Child Protection (Working with Children) Act 2012 (‘the Act’) provides that a worker must not engage in child-related work unless he or she holds a Working With Children Check clearance. (section 8 of the Act).

5. The Children’s Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children’s Guardian must grant a Working With Children Check clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

6. Under section 27 of the Act, the NSW Civil and Administrative Tribunal (‘the Tribunal’) has the power to review a decision of the Children’s Guardian to refuse a Working With Children Check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 Administrative Decisions Review Act 1997.)

7. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: 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].

8. In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).

9. That test has been held to be applicable in this Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).

10. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech for the Bill that became the Act in question: section 32 (2) (f) of the Interpretation Act 1987.

11. On 13 June 2012, the second reading speech for the Bill, which became the Child Protection (Working with Children) Act 2012, was given by Mr Dominello, Minister for Citizenship and Communities, and Minister for Aboriginal Affairs. In part it reads as follows:

All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant.

12. While the Bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk.

13. The Minister noted that:

Any assessment trigger, whether a criminal matter or a disciplinary matter, must be able to sustain an appealable bar against working with children. There are two conditions that need to be met to achieve this. First, the investigation of the conduct must be sound and must have taken into account the principles of natural justice; and, second, the conduct must be of a serious nature and must have actually occurred. Unsustainable allegations will not sustain an appealable bar. Only employers whose investigation practice meets the first condition will be reporting bodies that report disciplinary matters. They will be obliged to do so by law….Only sexual assaults, sexual misconduct and serious physical assaults have been identified to date as meeting the second part of this requirement. The range of matters to be reported may be extended by regulation.

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

evidence

15. In considering this application for review, the Tribunal had considered all the material before it, relevant parts of which are set out below.

Risk Assessment report

16. Following his application for a Working With Children Check clearance, the Children’s Guardian conducted a risk assessment for the applicant in accordance with clause 1(6) of Schedule 1 to the Act, which provides for a assessment requirement trigger where a 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.

17. In the applicant’s case, the pattern trigger offences are as follows:

• his 1998 conviction for the common assault of his former de facto partner and the subsequent contravention of an apprehended domestic violence order (for which he was placed on good behaviour bonds);

• his 2007 conviction for assault occasioning actual bodily harm to his ex-wife and the contravention of an apprehended domestic violence order (for which he received a sentence of eight months, suspended upon entering into a good behaviour bond);

• his 2009 convictions for assault occasioning actual bodily harm to his ex-wife (for which he was placed on a good behaviour bond) and for stalking her with intent to cause fear or physical or mental harm (for which he received 200 hours of community service).

Criminal record

18. The applicant has the following convictions:

• January 1998 – assault;

• June 1998 – contravene Apprehended Domestic Violence Order (‘ADVO’) & destroy or damage property;

• January 2007 –contravene ADVO & assault occasioning actual bodily harm.

• November 2007 – contravene ADVO;

• December 2009 – stalk/ intimidate intend fear of physical/mental harm & assault occasioning actual bodily harm & enter enclosed land without lawful excuse. The applicant was convicted of stalking his ex-wife and punching her in the face.

19. For each conviction, either a fine, a good behaviour bond or a community service order was imposed.

20. The applicant was also the defendant in twelve Apprehended Violence/Domestic Violence Orders between 21 January 1998 and 27 October 2009.

21. A police incident report created in May 2014 states that following their break up, the applicant sent 200 text messages to his ex-girlfriend and that he rang her 27 times in one night.

CHZ

22. CHZ gave oral evidence before the Tribunal. He told the Tribunal that he was a 39-year-old Aboriginal man with a strong cultural identity. Between 2012 and 2014, he had engaged in hotel work for which he held a certificate for the responsible service of alcohol. Since 2014, he had been employed by an Aboriginal organisation where he does reception and administrative work.

23. He has two teenaged children who have lived with him for two to three nights a week for the past seven years. This arrangement was reached following mediation with his ex-wife. He told the Tribunal that his children are going well and that his daughter has ambitions of becoming a teacher when she leaves school.

24. CHZ confirmed that he had had a close bond with his late mother, who had been a foster carer for many children.

25. He agreed that when he entered his first relationship, he had been 19 years old. He agreed that he had been convicted for two offences of domestic violence while in this relationship. He agreed that he had been intoxicated on both occasions.

26. He told the Tribunal that his relationship with the mother of his children (‘the ex-wife’) had commenced in 1998 or 1999. He agreed that there had been incidents of domestic violence within this relationship when he had been intoxicated. He confirmed that his children had never witnessed this and that it had never been discussed with them. He doesn’t believe that the children are aware of these incidents. He told the Tribunal that he was disgusted by his behaviour and regretted it. His ex-wife has never told him that she believed his behaviour had any impact upon their children.

27. When cross-examined about the effect of his behaviour on his children, he maintained that the children had never witnessed any domestic violence against their mother. He agreed that he had punched his ex-wife.

28. Medical reports dated September 2006 noted that the applicant would binge drink once a week for a period of 10 years. These reports also recommended anger management treatment for the applicant and noted that he had, in 2006, poor impulse control disorder exacerbated by alcohol intake and unresolved relationship issues. The reports describe some history of depression for the applicant but note his good insight into his depression stating that he ‘has insight into changes in mood, willing to seek help’.

29. In oral evidence before the Tribunal, the applicant agreed that he had had counselling in 2006 but has never taken medication for any mental health issues.

30. He agreed that he had been a binge drinker from 1996 to 2006. He agreed that even after he had been charged with assaulting his ex-wife in 2006, he had continued to drink. He denied ever threatening to kill his ex-wife or telling her that he would burn the house down and drive the kids into water or that she would never see the children again. He confirmed that his ex-wife had never denied him contact with the children. He described his relationship with his ex-wife as ‘pretty good... a hundred times better than in 2006.’

31. CHZ told the Tribunal that he ‘was great with the kids’ and is teaching them to drive. He said that ‘there are not enough hours in the day to spend time with them’ and that the longest period of time he goes without seeing the children is two days.

32. When asked what steps he has taken to ensure he abstains from domestic violence, CHZ told the Tribunal that he has educated himself on the effects of domestic violence and has lowered his drinking. He has also become more family orientated. Since the death of his mother, he has had more responsibility for his children who have become more dependent upon him.

33. He agreed that he had been in a two-year relationship that had recently ended and that his ex-girlfriend had alleged that CHZ had sent 200 text messages to her after their relationship had collapsed.

34. He explained the circumstances behind the ending of their relationship:

We went down to [a town in NSW] and had an argument. She left. Two days later, I came home to find my furniture gone and $40,000 of debt. I went to the consumer tribunal, I wrote to Fair Trading to try to get my bond money back. She worked in a real estate office. Twenty text messages were about the bond. The police told me to stop harassing her and I said yes. I had to contact her when her daughter’s school rang up and I passed the message on.

35. In cross-examination, he denied that the text messages sent to his former girlfriend were threatening but did not seek to excuse them.

36. Documents contained on file confirm that the applicant had been approved for a foster placement in 2012.

37. In oral evidence before the Tribunal, the applicant said that he had been approached by police in relation to a 15-year-old girl [‘the foster child’] who had been fostered by CHZ’s mother from the time she was a year old. After CHZ’s mother died, the foster child had been ‘shopped around.’ CHZ told the police that she could stay with him for the weekend. The Department of Family and Community Services then told CHZ that he’d ‘be okay to have her’ and conducted a risk assessment for him before approving him as a foster carer. The foster child then stayed with him for 5 months.

38. The placement ended due to the foster child’s behavioural problems. On one occasion, she had friends over to drink alcohol at CHZ’s house and on another occasion she ‘smashed up the house’, took CHZ’s last photographs of his mother and took the spare key to the car. When further damage was done to his house, CHZ rang the Department of Family and Community Services and the police to say that he could no longer care for the foster child.

39. According to CHZ, the Department of Family and Community Services tried to convince him to continue to care for the foster child. According to CHZ, it was ‘suggested that I could forgive her. I said once yes, twice no.’

40. CHZ told the Tribunal that he still speaks to the foster child. He describes her as having been born alcohol dependent and as having a learning disability. His mother had also fostered her older brother and sister. CHZ described himself as having been disappointed in the foster child. But when he saw her after the placement had not continued, he said sorry to her ‘because I didn’t think I’d done a good job. It was the hardest thing telling her she couldn’t come back.’

CHZ’s ex-wife

41. CHZ’s ex-wife, who is also the mother of his children, provided the following character reference in support of CHZ’s application for a Working With Children Check clearance:

[CHZ] is the father of our children. CHZ and I separated back in 2003. Since 2006 when his mother passed CHZ has been nothing but helpful and hasn’t caused any issues to me since. CHZ has always put his children first. CHZ is a responsible adult and has matured a lot over the last 10 years. CHZ picks them up from school and runs them around for example sporting or work commitments and brings them home, he also picks them up from their house…He also has [our son] one night every week. To conclude I recommend CHZ is a mature adult who is great with children. He is a very caring and responsible father to [our son and our daughter] and their friends and other children in the family.

42. In her reference CHZ’s ex-wife provided her contact details and wrote that she was happy to answer any further enquiries. At hearing, the Children’s Guardian did not require her for cross-examination.

Material from the Department of Family and Community Services

43. Material contained on file from the Department of Family and Community Services includes a 2012 assessment record for the kinship foster placement of a fifteen-year-old girl (‘the foster child’) with the applicant.

44. Interview notes with the applicant in relation to the foster placement include the following:

CHZ lived with [the foster child] (his mother and other foster children in the household) for about 12 years at which time he moved out. CHZ stated that he reached the decision to care for [the foster child] when...the caseworker...called him to ask if he would be interested in this role. CHZ stated that his door is ‘always open to anyone’ who needed help. CHZ expressed that he really did not want [the foster child] to end up in a group home and that he would like to see her get a part time job.

When CHZ was talking about [the foster child] and the quirks of her personality his affection for her was apparent. He described [her] as ‘a ball of fun’ and told a story about when they went to the shops and she did random things such as showing him how to put coins in a slot machine and buying prawn chips and then cooking them for him. CHZ described [her] personality in a very caring manner and he said that he was learning things from her.

45. The interview notes also contain the following comments about the applicant’s relationship with his own children:

He sees [the children] most days after school…[CHZ] described [his son] as a ‘very musical’ person who enjoys playing drums and guitar. [CHZ] has held some concerns for [his son’s] academic abilities as he did not appear to be functioning at the same level as many of his peers..[CHZ] stated he believed [he] is now ‘doing better’ at school…CHZ described [his daughter] as smart...very smart. …[The foster child] has a good relationship with [CHZ’s] children and spends time with them at CHZ’s ex wife’s house when [he] is working.

46. When asked during the interview how he reacted to other people if they made him angry, CHZ told the interviewers that in the past he had struck out, but that since working at a hotel, he had been able to control this and that this ‘has been displayed through his regular interaction with intoxicated patrons without incident.’

47. CHZ explained his parenting style to the interviewers stating that:

If his children misbehaved he would speak to them in a stern voice to get them to stop what they were doing or withdraw some privileges. CHZ believes that his mother has influenced his parenting style by teaching him the importance of love and providing for your children’s basic needs.

48. The applicant told the interviewers that he was still in regular contact with his ex-wife and that there had previously been violence in their relationship but that ‘the violence had never occurred in the presence of the children.’ He told the interviewers that he had given up drinking and had seen a counsellor to address his anger issues. He told the interviewers that ‘he had found the process beneficial and that he had continued to attend counselling past the date required by the court orders.’

49. He told the interviewers that ‘whilst the [foster child] has self placed with CHZ she has spent time with [his ex-wife] who has indicated to CHZ that she would be willing to help look after [the foster child] when CHZ works on the weekends. CHZ said that he now deals with disagreements with [his ex-wife] by speaking with her about the problem.’

Material from the telephone company

50. Material received from the applicant’s telephone company included:

• tax invoices for May and June 2014

• details of voice calls made from the applicant’s mobile number between 5 April 2014 and 3 June 2014

Ms Hare

51. The forensic psychologist, Ms Hare, prepared a forensic psychological risk assessment report for the applicant and gave evidence by telephone at these proceedings.

52. It is not disputed that the applicant was raised by a single mother, who also fostered children for both long and short-term placements. It is also not disputed that since leaving school, the applicant has been in employment and has also completed further educational programs.

53. It is not disputed that the applicant was the subject of apprehended domestic violence orders against the mother of his children. According to Ms Hare:

[CHZ] denied that his children had been witness to any incidents of aggressive discord between himself and [their mother], citing that they were oftentimes in the care of extended family members when arguments erupted. He also denied that his children are aware of his past convictions for incidents of violence against their mother. [CHZ] described maintaining a supportive relationship with [the mother of his children] at the time of writing, noting that she had accompanied him on the journey to Sydney for the present assessment.

54. According to Ms Hare,

CHZ identified his mother as a primary influence in the attitudes and beliefs that he developed, and he reflected his disappointment with himself for having ever ‘laid a hand on anyone.’ He agreed that there is no place for aggression and violence within intimate relationships, and he did not present as holding misogynistic beliefs. Indeed, he identified his sister and a female ex-work colleague as amongst his closest supports. [CHZ] also reported his brother and a male work colleague as part of his social support network. He described these individuals as unanimously prosocial, and he maintains weekly contact with them. CHZ denied maintaining antisocial acquaintances currently, although he reported that historically (aged 18 to 25) he had maintained some antisocial peers. He advised that after reflecting on his life in his mid-twenties, he had recognised that he needed to make some changes, particularly in relation to his social group, and over time he had distanced himself from these individuals. CHZ identified a number of prosocial leisure interests, including playing masters rugby league, attending live music events, watching rugby league with his friends, and historically engaging in activities to maintain physical fitness.

55. CHZ agreed that he was more likely to act out aggressively when intoxicated. According to Ms Hare:

Indeed, he reflected that at the time of each of the recorded incidents of domestic abuse, he had been intoxicated on alcohol. As he has matured and reflected on past mistakes, and also after having attended AOD counselling as part of the Magistrates Early Referral Into Treatment, [he] described having made changes to his alcohol use.

56. According to the Alcohol Use Disorders Identification Test, CHZ scored towards the lower end of the range for medium level of alcohol programs that are most appropriate for simple advice focused on the reduction of hazardous drinking. According to Ms Hare, scores at this level are not considered suggestive of alcohol dependence, although some reduction would be advised.

57. In terms of CHZ’s ability to manage his anger, Mr Hare stated that:

During the past seven or eight years, CHZ advised that he has achieved adequate management of his anger, identifying that he rarely becomes enraged. He reported awareness of warning signs that he is becoming angry, including: angry rumination, increased alcohol use as a means of coping; telling himself ‘comfortable stories’ to convince himself he is right, and physical symptoms comprising racing heart and pacing. In terms of coping mechanisms, CHZ reported if he noted the presence of aforementioned warning signs, he would talk to his brother or a close friend, walk his dog, spend time with his children as a form of distraction, and/or walk away and engage in positive self-talk, for example, telling himself to ‘be the better person.’ Thus CHZ was able to outline both cognitive and behavioural strategies to manage his anger, and overall, he presented with a good level of insight… [A]t the time we met, CHZ appeared to present with psychological resilience. He further reported improved feelings of self-worth during the past couple of years since successfully completing… educational courses, and engaging in his current employment, which provides a sense of meaning and purpose.

58. According to Ms Hare, CHZ presents a low to moderate risk of engaging in violence towards an intimate partner in the future. This risk would be reduced to low if the 2014 allegation (in relation to calls and texts to his ex-girlfriend) were rejected. According to Ms Hare, CHZ presents a low risk of engaging in violence towards others (including children). As CHZ is not currently engaged in an intimate relationship, it is Ms Hare’s opinion that any risk of CHZ engaging in violence towards a partner is not imminent at this time.

59. Ms Hare gave the following assessment of CHZ:

CHZ presents with good insight into his past difficulties, and he is aware of the ways in which repeating his actions could harm children. He has alleviated the key dynamic risk enhancing factors from his past and is able to provide examples of appropriate coping mechanisms that he uses currently. Whilst I acknowledge that his history constitutes a pattern of harmful behaviour, and this means that a conclusion of ‘no risk’ cannot be offered, I believe the risk of harm he poses to children is reduced and highly specific, that is, confined to psychological risk to children residing with the context of a familial unit consisting of CHZ and a partner. This situation would largely not be managed by refusal of a [Working With Children Check clearance]. Thus, I am unable to offer any reasons from a psychological risk assessment perspective why CHZ should not be granted a [Working With Children Check clearance.

60. Ms Hare gave oral evidence at hearing. She told the Tribunal that she was not aware that the applicant had any underlying or ongoing mental health problems. She confirmed her view that the applicant was mindful of his intake of alcohol and had a good level of insight. By insight, she meant that the applicant can identify behavioural and cognitive strategies to assist himself. She told the Tribunal that he had good extended family support.

61. She agreed with the proposition that there was no evidence that the applicant has ever presented a risk to children outside of the home. The only risk he might pose to children inside the home would be the observation or impact of their mother being a victim of domestic violence.

62. She agreed that by drinking seven and a half standard drinks on a Saturday night, the applicant was in a ‘hazardous’ level according to the Alcohol Use Disorders Identification Test and confirmed that he had scored in the moderate level for the Alcohol Use Disorders Identification Test.

63. Ms Hare told the Tribunal that she was of the opinion that the applicant did have some insight into the effect of domestic violence on victims. She agreed that the applicant did not seem to have as developed an awareness of the effect of domestic violence on children and seemed to have some lack of consideration that they would not be impacted simply because they didn’t see it happen. She noted, however, that in their interview, the applicant had agreed that the children may have been ‘mentally impacted’ by the domestic violence although he maintained that the children had never witnessed any violence.

64. In agreeing that the applicant had been approved to be a foster carer in 2012, Ms Hare noted that the applicant’s last incident of domestic violence had been in 2009 and that there had been no subsequent reports of domestic violence.

65. In relation to the allegations that in 2014, the applicant had sent 200 texts to his ex-girlfriend, Ms Hare told the Tribunal that when she had challenged the applicant about this he had provided the context for the messages and had denied harassing her.

References

66. In a letter to the Office of the Children’s Guardian dated 6 January 2016, the Chief Executive Officer of the applicant’s workplace wrote as follows:

[CHZ] completed a placement...in 2014 as practical experience. During this time, [CHZ] impressed the staff member who had been allocated as his mentor and management with his commitment, dedication and understanding of the issued faced by our clients…As part of the initial employment process [CHZ] was forthcoming and made us aware of charges against him prior to 2007….As part of our risk management an assessment was completed resulting in a low risk rating; however we have allocated a fulltime mentor for a period of twelve months. [The organisation] has no disciplinary proceeding or complaints made against [CHZ]. [CHZ] has also been known to me on a personal basis and is a committed father and family member, loyal and dedicated employee and an active member of the...community.

67. The applicant has completed a Certificate III in Business Administration, a Certificate IV in Work Health and Safety, a Certificate IV in Community Services and a Certificate II in Construction.

finding and reasons

68. The Tribunal "must consider" those factors set out in section 30 (1) of the Child Protection (Working with Children) Act in determining an application under Part 4 of the Act, which includes this application.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar – s30(1)(a)

69. The applicant is not a disqualified person. The trigger offences that caused an assessment and a refusal of a Working With Children Check clearance were the applicant’s history of domestic violence offences against two of his former partners. The offences, which were committed in 1997, 2006 and 2009, were serious.

70. On the evidence before it, the Tribunal accepts that the circumstances of the first 1997 offence involved the applicant grabbing the sleeve of his ex-girlfriend’s shirt to pull her down to talk to him, grabbing hold of her necklace until it had broken and slapping her on the ear. The Tribunal accepts that the applicant subsequently breached the Apprehended Violence Order made against him as a result of this earlier offence.

71. In relation to the 2006 offence, the Tribunal notes that the file contains a fact sheet alleging that the applicant threw an empty bottle at his ex-wife, missing her head, and punched her in the face. There is no record of interview contained on file for this offence nor did the respondent put to the applicant in cross-examination that this had occurred. In the absence of further information, the Tribunal is satisfied that the applicant physically assaulted his former wife such that he was able to be convicted not simply of common assault but rather of the most serious offence of assault occasioning actual bodily harm.

72. In relation to the 2009 offence, a facts sheet is contained on file alleging that the applicant followed his ex-wife to her home and punched her with a closed fist. The applicant was not cross-examined about the circumstances of the offence nor was it put to him that the information in the fact sheet was correct. For this reason, the Tribunal gives limited weight to the material in the fact sheet. The Tribunal does accept, however, that the behaviour of the applicant on this occasion was such to found convictions for assault occasioning actual bodily harm, stalk/intimidate intend fear of physical/mental harm and enter enclosed land without lawful excuse, for which he was sentenced to 200 hours of community service.

The period of time since those offences or matters occurred and the conduct of the person since they occurred - s30 (1)(b)

73. The applicant’s last offence was in 2009.

74. In 2014, the applicant’s ex-girlfriend complained that the applicant had ‘received about 200 text messages from him.’ She declined to make a police statement in relation to the complaint.

75. The applicant agreed that he had sent messages to his ex-girlfriend. He agreed that some were nasty but told the Tribunal that none were threatening. He gave evidence that some of the messages had been sent in an attempt to get back his bond from his former apartment. When approached by the police, he had agreed not to harass his ex-girlfriend.

76. On the evidence before it, the Tribunal is not satisfied that in sending his ex-girlfriend the relevant text messages he was engaging in stalking or intimidating behaviour. The Tribunal accepts the submission by the applicant’s solicitor, Mr Madden, that there did not appear to be a substantial increase in text messages sent by the applicant during the period in question, when compared to the previous billing period. The Tribunal also accepts that the evidence does not show that the applicant sent 200 text messages to his ex-girlfriend in the period from the time of their break up until 16 May, including 27 phone calls in one evening. The ex-girlfriend did not provide a statement to clarify the complaint nor did she give evidence before the Tribunal. The evidence contained in the material received by the telephone company is that the applicant made only eight calls to the ex-girlfriend’s number that evening. On the evidence before it, the Tribunal is unable to give any weight to the submission that in telephoning his ex-girlfriend following their break-up in 2014, including during the early hours of the morning, the applicant was engaging in stalking or intimidatory behaviour.

77. There is no dispute that in 2012, the applicant was approved as a kinship carer for a fifteen-year-old girl (‘the foster child’). Whilst the foster placement lasted only five months, no criticism of the applicant is made about this. Indeed, the applicant’s evidence to the Tribunal that is that in the course of the placement, the foster child drank alcohol with friends while the applicant was away from his house and that, on two occasions, the foster child had caused substantial damage to his house. After the first occasion, CHZ gave her another chance but on the second occasion, he decided he couldn’t continue with the placement.

78. CHZ’s evidence is undisputed that he still speaks to the foster child, that he had apologised to her because he didn’t think he had ‘done a good job’ and that it had been the hardest thing for him to ‘tell her she couldn’t come back.’

79. CHZ’s account of the foster placement, which was not disputed, impressed the Tribunal. It demonstrated CHZ’s relatively recent ability to manage, without resorting to anger or violence, the aftermath of the destruction of his house and property within it. For the Tribunal, it carries great weight in an assessment of CHZ’s personal development in recent years and his success in anger management.

80. In recent years, the applicant has completed a Certificate IV in Community Services. He was placed in an indigenous organisation where he has continued to work and where he is seen as a loyal and dedicated employee.

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

81. The applicant was born in 1976 and is now 40 years old. The first offences occurred in 1997 when the applicant was 20 years old and the last offence occurred in 2009 when the applicant was 32 years old.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim-s30 (1)(d)

82. The two victims were the former partners of the applicant. Their ages are unknown.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person -s30 (1)(e)

83. The difference in ages is unknown and, the Tribunal accepts, irrelevant to the determination of this application for review.

Whether the person knew, or could reasonably have known that the victim was a child-s30 (1)(f)

84. The victims were not children. There is nothing before the Tribunal to dispute the applicant’s evidence that his children were never present when the applicant was violent towards their mother and were not aware of their father’s violent behaviour towards their mother.

85. The Tribunal accepts, however, that it is likely that their father’s violence towards their mother has had an impact upon the children.

The person's present age - s30 (1)(g)

86. The applicant is now 40 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred -s30 (1)(h)

87. The Tribunal accepts that that the applicant has a serious record of domestic violence against two of his intimate partners, which has resulted in several criminal convictions, as outlined above, and numerous apprehended domestic violence orders.

88. As outlined above and on the basis of the evidence before it, the Tribunal has given no weight to the submission that his telephone calls and texts to his ex-girlfriend in 2014 amounted to stalking behaviour by the applicant.

89. The Tribunal similarly gives no weight to the allegations that in 2005, the applicant threatened to burn his ex-wife’s house down, to hurt himself and his children by driving his car into a tree and by threatening his ex-wife that she wouldn’t see the children again. CHZ denied ever having said this and although his ex-wife had provided a reference in support of CHZ in these proceedings, in which she gave her telephone number and offered to answer any further queries, she was not required for cross-examination by the Children’s Guardian.

90. The Tribunal gives weight to the glowing endorsement of the applicant by his employer who had assessed him as a ‘low risk’ and who describes him as a loyal and committed employee.

91. The Tribunal also gives weight to the fact that in 2012, the applicant was approved by the Department of Family and Community Services as a kinship placement. Although the placement ceased after 5 months, the Tribunal was impressed by the way in which the applicant explained how he dealt with the damage sustained to his house by the foster child. From his evidence, the Tribunal was satisfied that in recent years, the applicant has learnt and applied strategies to manage his anger. The Tribunal was also impressed by the steps that he has taken to lower his alcohol input and to improve his relationship with his ex-wife, such that they are able to successfully co-parent their children.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition -s30 (1)(i)

92. On the evidence before it, and given that the Tribunal has given no weight to the allegations that the applicant engaged in stalking or intimidating behaviour in 2014, the Tribunal accepts the opinion of Ms Hare that the applicant has a low risk of the applicant engaging in violence towards an intimate partner in the future and does not present an imminent risk of this. The Tribunal is satisfied that the applicant has lowered his alcohol intake and now only drinks one evening a week, generally on a Saturday night.

92. The Tribunal accepts that when drinking, the applicant may drink up to seven standard drinks - or more, on exceptional occasions – and accepts the evidence that this reflects a binge pattern of alcohol use at a volume that is outside recommended healthy limits. The Tribunal also accepts that on the basis of the Alcohol Use Disorders Identification Test administered by Ms Hare, the applicant’s drinking falls in the lower end on the scale of hazardous drinking. The Tribunal accepts that were the applicant to engage in any violence against an intimate partner, his children might well be impacted by this.

93. The Tribunal accepts, however, that the applicant now has insight into his past behaviour and has made significant progress with his education, the reduction of his alcohol intake, his employment and his ongoing relationship with the mother of his children.

94. In 2012, he was approved by the Department of Family and Community Services as a foster carer and there is nothing before the Tribunal to indicate that any concerns about him were raised during the foster placement.

95. His last conviction was 2009 and since this time, the evidence is that he has worked hard to establish a working and co-operative relationship with the mother of his children and that he has gained the respect and praise of his employer.

96. His evidence and that of his ex-wife is that he is a devoted and supportive father to his children. There is nothing before the Tribunal to dispute this.

Any information given by the applicant in, or in relation to the application – s30 (1)(j)

98. The applicant submitted that weight should be given to the fact that:

• he has never physically disciplined his children; and

• his academic results have been impressive;

• his employer assessed him to be a ‘low risk.’;

• he is ambitious in his work and wishes to be promoted to a training role with his current employer;

• he has taken steps to reduce his alcohol intake;

• in 2012, he was assessed by the Department of Family and Community Services to be a suitable foster carer. In making this assessment the Department of Family and Community Services was using similar criteria to that to be applied by this Tribunal; and

• Ms Hare assessed the applicant as being ‘nil risk to children outside the family.’

99. On the evidence before it and having given consideration to those issues highlighted by the applicant, the Tribunal is satisfied that the applicant has a positive and interactive relationship with his children and has taken steps to address his earlier offending behaviour.

Any other matters that the Children's Guardian considers necessary –s30 (1)(k)

100. It is the submission of the Children’s Guardian that when considered as a whole, CHZ’s conduct amounts to a real and appreciable risk to children.

101. The Children’s Guardian submitted that weight should be given to:

• his history of domestic violence against intimate partners and the risk that he will re-offend towards anyone who angers him;

• the fact that he still drinks to a ‘moderate level of hazardous drinking’;

• the allegation that he sent 200 text messages to his ex-girlfriend in 2014;

• the lack of insight displayed by the applicant in relation to the effect of harm caused to children by the application of domestic violence to their mother.

102. In consideration each of these submissions, the Tribunal accepts that weight should be given to the seriousness of the applicant’s criminal record and that in considering the risk that he will re-offend, his alcohol consumption should be taken into account.

103. The Tribunal is mindful that its jurisdiction in this application is protective and not punitive in nature. On the evidence before it, the Tribunal accepts that the applicant’s history of violence against intimate partners is poor. The Tribunal is also satisfied that the applicant’s last conviction was in 2009 and that since this time, the applicant has undertaken further study and has successfully found further employment following the closure of the company where he had been previously employed. The evidence of both the applicant and his ex-wife is that he is a committed and loving father to his children. Although a complaint was made to the police by the applicant’s ex-girlfriend about texts sent to her and calls made to her after their break-up, the ex-girlfriend declined to make a statement or an application for an Apprehended Domestic Violence Order. The evidence before the Tribunal is that numerous calls were made to settle a dispute involving a rental bond paid by the applicant. In the absence of evidence from the ex-girlfriend to clarify the nature of the calls or further evidence of action taken in relation to them, the Tribunal has not given any weight to these allegations.

Conclusion

104. In this case, a Working With Children Check clearance must be granted to the applicant unless the Tribunal is satisfied that he poses a risk to the safety of children.

105. As set out above, the evidence before the Tribunal is that, whilst the applicant has a criminal record involving violence towards two intimate partners, it is now eight years since his last offence. Since this time, the Tribunal is satisfied that the applicant has established an amiable and constructive relationship with the mother of his children, who has provided a letter in support of the applicant’s application for a Working With Children Check clearance.

106. On the evidence before it, the Tribunal accepts that the applicant was approved by the Department of Family and Community Services as a foster carer and is a committed and loving father to his children.

107. For the reasons set out above, no weight has been given to the 2014 complaint made by the applicant’s ex-girlfriend. On this basis, the Tribunal is satisfied that the applicant has a low risk of engaging in violence against an intimate partner and does not pose a real and appreciate risk to the safety of children.

108. In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a Working With Children Check clearance.

Order

1. The decision of the Children’s Guardian dated 13 November 2015 to refuse the applicant’s Working With Children Check clearance is set aside.

2. In substitution for that decision, the following decision is made: The applicant is granted a Working With Children Check clearance.

**********

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

Registrar

Decision last updated: 24 April 2017