CLR v Children's Guardian

[2017] NSWCATAD 158

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLR v Children’s Guardian [2017] NSWCATAD 158
Hearing dates:	24 October, 9 December 2016
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children's Guardian dated 2 February 2016 to refuse to grant the applicant a 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.
Catchwords:	CHILD Protection – working with children – negligent driving – whether intentional - no presumption of risk – assessment of risk – whether reasonable person would allow applicant direct contact with children – public interest – no real and appreciable risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection Legislation Amendment Act 2015 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
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 CBN v Children’s Guardian [2016] NSWCATAD 240 CHB v Children’s Guardian [2016] NSWCATAD 214 CMA v Children’s Guardian [2016] NSWCATAD 264 Children’s Guardian v BRL [2016] NSWSC 1206 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 Director of Public Prosecution v Smith (1991) VR 6 FZ v Commissioner for Children and Young People [2010] NSWCC 1201 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CRL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: H Grace (Applicant) V Hartstein (Respondent)   Solicitors: Zahr Partners (Applicant) Crown Solicitor (Respondent)
File Number(s):	2016/00377913, 1610128
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 CLR, requires a Working With Children Check clearance because she wishes to work as a teacher.

2. Although she was granted a clearance in 2014, a risk assessment was conducted for her when she was charged with a number of driving-related offences in July 2015. In November 2015, an interim bar was placed on her Working With Children Check clearance, which was subsequently cancelled on 2 February 2016.

3. The charges pertained to an alleged altercation between members of the applicant’s extended family. The applicant pleaded guilty to one count of negligent driving and three counts of failing to give particulars. As a result of the dispute, damage was sustained to three cars – including the applicant’s car – and a fence. The applicant was fined and, subject to a bond to be of good behaviour for six months, the charges were dismissed without a conviction being recorded. The applicant agreed to an apprehended violence order being made against her, which expired on 20 July 2016. The applicant has no other criminal history and there are no records for her in the NSW Police Force ‘COPS’ database.

4. For the reasons set out below, we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children and should be granted a Working With Children Check clearance.

Legal principles

5. 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 such a clearance (section 8 of the Act).

6. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have Working With Children Check clearances (section 3 of the Act).

7. 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 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.

8. Under section 27 of the Act, 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 of the Administrative Decisions Review Act 1997.)

9. 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].

10. 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. In this case there is no presumption that the applicant poses a risk to children.

11. 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).

12. 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).

13. 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 CLR has been used for the applicant's name.

Do the 2015 amendments to the Act apply?

14. The Child Protection (Working with Children) Act 2012 came into force on 15 June 2013 and was amended by the Child Protection Legislation Amendment Act 2015 on 28 September 2015. The amendments, which commenced on 2 November 2015, inserted s 15 (4A) and s 30 (1A) into the Act.

15. Relevantly to this application before the Tribunal, s30(1A) of the Act provides for an additional test to be satisfied by an applicant prior to an order being made which has the effect of enabling him or her to work with children. The additional test provides as follows:

30   Determination of applications and other matters

…

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.”

16. We consider that this additional test does apply in this case. This is because the Children’s Guardian notified the applicant of its decision to cancel her Working With Children Check clearance on 2 February 2016, which is after the commencement of s.30(1A) of the Act. See CHB v Children’s Guardian [2016] NSWCATAD 214 and CMA v Children’s Guardian [2016] NSWCATAD 264.

EVIDENCE

17. Substantial documentary evidence was provided to us and oral evidence given at hearing by the applicant and by the psychologist, Ms Edwina Cowdery. We have considered all the evidence before us, the most relevant of which is set out and considered below.

CLR

18. The applicant provided an affidavit and gave oral evidence before the Tribunal.

19. Having considered her affidavit and oral evidence, we are satisfied of the following:

• The applicant is the mother of two young daughters;

• The applicant cares for her nieces and nephews on a weekly basis;

• In 2015, the applicant obtained a Diploma in Early Childhood Education and Care and intends to complete a teaching degree in order to teach primary-aged school;

• The applicant engages in volunteer work for an organisation established to combat domestic violence.

20. In relation to the altercation on 12 July 2015, we are satisfied that it arose as a result of an ongoing family dispute and that the applicant’s erratic driving and subsequent damage to a fence in the neighbourhood were caused by her fear of being harmed by other members of her family. We are not satisfied that the applicant intended to cause harm to any person or property on the evening of the altercation.

21. We accept the applicant’s evidence that, on the night of the altercation, her nine-year-old cousin had hit a bottle over the applicant’s sister’s head and that the applicant had feared for her sister’s welfare and safety. No evidence has been produced by the respondent to dispute the applicant’s evidence in this regard.

22. We accept that the nine-year-old cousin had been a witness to the altercation but, on the evidence before us, do not accept that the applicant can be held responsible either for his presence at the altercation or any emotional harm that may have been suffered by him as a result of the incident. We accept the applicant’s evidence that she never intended to hurt anyone on the night of the altercation.

23. We are not satisfied that the applicant has been untruthful in her evidence. No evidence has been produced to refute what she has says. We accept that on the night of the altercation, the applicant feared for her safety and for that of her sister and sought to get away from the area in which the dispute was taking place. We accept that it was in this context that damage occurred to a front fence and to the applicant’s motor vehicle.

Character references

24. A series of character references for the applicant have been provided to the Tribunal. None of the referees were required by the respondent for cross-examination.

25. On the evidence before us, we accept that:

• For over five years, the applicant has been a volunteer for a community organisation run by her sister. There is no evidence before us that any complaints, reports or disciplinary actions have been made during this time.

• The applicant regularly babysits her nieces and nephews.

• The applicant is a caring mother to her own children.

Psychological assessment

26. Ms Edwina Cowdery prepared a psychological assessment for the applicant which has been considered by the Tribunal in these proceedings. Ms Cowdery also gave oral evidence before the Tribunal. Both in her report and in her oral evidence, she stated that in light of her assessment of the applicant, it was her view - and remained her view, following additional information being given to her in the course of the hearing - that the applicant does not pose a risk to children.

27. On the basis of Ms Cowdery’s psychological assessment and oral evidence, we accept that although the applicant’s presentation was consistent with a significant depressive experience, she is not within the clinical range for depression and has a stable and positive self-evaluation with a low tendency towards aggression. We accept that, according to her assessment, the applicant is less likely to be confrontational when given the chance. We accept that she may have a tendency to portray herself in a positive light and have considered her evidence in that light.

FINDINGS AND REASONS

28. In determining this application, the Tribunal "must consider" those factors set out in section 30 (1) of the Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

29. The matters that caused a risk assessment for the applicant and the subsequent cancellation of her Working With Children Check clearance are as follows:

• an altercation involving the applicant and members of her extended family on 12 July 2015; and

• the applicant’s subsequent charging with offences relating to this altercation.

30. On the evidence before us, we are satisfied that of the 15 charges initially laid against the applicant, 11 were withdrawn and the applicant pleaded guilty to the remaining four, namely one count of negligent driving, which was dismissed upon the applicant entering into a good behaviour bond to be of good behaviour for six mouths, and three counts of failure to give particulars, for which she was fined.

31. We accept the applicant’s evidence that she did not intend to cause injury or damage on the evening and accept that she feared for her safety. She provided an affidavit and was subjected to cross-examination by the respondent. We note that there was no evidence called to dispute the applicant’s evidence in this regard.

32. Whilst we accept that the applicant could not recall all details of the evening, we are not satisfied that she was deliberately evasive in her event and do not find that she was in breach of s27(4) of the Act which requires an applicant to fully disclose any matters relevant to the application.

33. In relation to those more serious initial charges against the applicant that were later withdrawn, no evidence was provided about them such that we could be satisfied that they should be taken into consideration in this matter. Accordingly, we have given no weight to those charges that were initially laid against the applicant and subsequently withdrawn.

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

34. The alleged conduct took place in July 2015.

The age of the person at the time the matters occurred (s30(1)(c))

35. The applicant was thirty-three at the time the alleged conduct look place.

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))

36. According to the respondent, there were a number of adult victims in addition to a nine-year-old boy who is a cousin of the applicant. On the evidence before us, we cannot be satisfied of this. We accept the evidence of the applicant that her nine-year-old cousin hit her sister with a bottle but, on the evidence before us, we cannot be satisfied that the applicant bore any responsibility for the child’s actions nor that she was responsible for his presence at the time of the altercation. There is no evidence before us to enable us to find that the child was a victim of any relevant offence involving the applicant.

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

37. Whilst it has been alleged that there were adult victims and one nine-year-old victim, on the evidence before us and as set out above, we cannot be satisfied that this is the case.

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

38. We do not accept the respondent’s submission that the applicant’s nine-year-old nephew was a victim of any criminal behaviour by the applicant.

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

39. The applicant is thirty-five years old.

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

40. The applicant has been convicted of one count of negligent driving. In relation to traffic offences, she has been convicted of three counts of failure to provide particulars. She agreed to an apprehended violence order being made against her, without admissions, which lapsed last year. The applicant has no other criminal history.

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))

41. On the evidence before us, we are satisfied that it is unlikely that the applicant will engage in any behaviour or conduct that would have a detrimental effect on children. On the evidence before us, we are satisfied that the applicant did not intend to cause any harm on the night of the altercation and was fearful for her safety and that of her sister. We are satisfied that she has complied with the terms of the apprehended violence order and her good behaviour bond. We accept that she is committed to becoming qualified as a teacher and to raising her young daughters.

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

42. We have given weight to the evidence of Ms Edwina Cowdery, which included both her expert report and her oral evidence at hearing. Her findings that the applicant is not prone to aggression and does not pose a real and appreciable risk to the safety of children are consistent with the applicant’s evidence and the rest of the evidence before us.

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

43. We do not accept that the applicant has been dishonest or evasive in her evidence nor that she has been in breach of s27(4) of the Act, which requires an applicant to fully disclose to the Tribunal any matters relevant to the applicant. We accept that there have been some inconsistencies in the applicant’s evidence in relation to the details of the altercation. In our view, these inconsistences are not evidence of dishonesty or evasiveness by the applicant and are not, in our view, relevant to the question of whether the applicant poses a risk to children.

44. Any inconsistencies could have been clarified had the respondent called witnesses in its case, however, it did not do so. Eleven charges against the applicant were withdrawn and in relation to the remaining charges, the applicant pleaded guilty with the relevant facts sheet in evidence before the Tribunal. Her evidence was, in our view, consistent with the facts sheet.

45. There is no evidence before us that the applicant intended either to sustain damage to the motor vehicle or to the neighbouring fence. On the evidence before us, we are satisfied that the applicant’s poor driving was not intentional but as a result of her fear for her own safety and that of her sister. There is insufficient evidence before us to make any findings in relation to any violence perpetrated by the applicant’s nine-year-old cousin. We accept the respondent’s submission that it is damaging for children to be witnesses to violence but we cannot be satisfied on the evidence that the applicant intended any violence on the night in question. For this reason, we are not satisfied, on the evidence, that the applicant’s behaviour on the night in question, revealed her be a risk to the safety of children.

Conclusion

46. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, she must be granted a Working With Children Check clearance.

47. For the reasons provided above, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children.

48. We are satisfied that, on the evening of the altercation, the applicant did not intend to cause harm either to anyone or any property. We are also satisfied that the applicant is the mother of two children and that no concerns have been raised either in her role as a mother or as a volunteer at an organisation to combat domestic violence. We accept the findings of the psychologist, Ms Edwina Cowdery, which, together with the rest of the evidence before us, satisfy us that the applicant does not pose a real and appreciable risk to the safety of children.

Subsection 30(1A) of the Child protection (Working with Children) Act

49. As we have found that the applicant does not pose a real and appreciable risk to children, we will now consider the following additional matters contained in s30(1A) of the Act.

Would a reasonable person allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work?

50. The section assumes that the reasonable person is aware of those relevant facts of which the Tribunal has knowledge (see CHB v Children’s Guardian [2016] NSWCATAD 214).

51. In this case, the relevant facts are as follows:

• The applicant was initially charged with fifteen offences following the altercation on 12 July 2015;

• All but four charges were subsequently withdrawn;

• The applicant pleaded guilty to one count of negligent driving, which was dismissed upon the applicant entering into a good behaviour bond to be of good behaviour for six mouths and three counts of failure to give particulars for which she was fined;

• There is no persuasive evidence before the Tribunal that the applicant’s negligent driving was intentional or that she intended harm to any person or property;

• The applicant gave evidence before the Tribunal and provided a statement in support of her application;

• The applicant has completed a Diploma of Early Childhood Education and Care and has been a volunteer for an organisation assisting victims of domestic violence;

• The applicant has two young daughters. There is no evidence before the Tribunal that she has ever come to notice of the authorities in relation to her daughters;

• The psychological report prepared by Ms Edwina Cowdery concludes that the applicant does not pose a risk to children.

52. Based on these relevant facts, the evidence of the applicant and the findings of the psychologist, Ms Edwina Cowdery, we are satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not supervised by another person while the applicant was engaged in any child-related work.

Is it in the public interest to make the order?

53. We must also be satisfied under the second part of s.30 (1A) of the Child Protection (Working with Children) Act that the order is in the public interest.

54. The public interest considers the wider community interests over private interests.

55. In Director of Public Prosecution v Smith (1991) VR 6 the Court held:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

56. The Tribunal must also consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

57. As set out above, on the evidence before us, we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children. We are satisfied, on the evidence, that the applicant did not intend to harm anyone or any property during the altercation in July 2015 and that the damage that did occur to property was unintentional and as a result of the applicant’s fear for her own safety and that of her sister. There is no evidence to dispute that the applicant is anything but a loving and committed parent and aunt, and a longstanding volunteer for an organisation seeking to help victims of domestic violence.

58. She is the holder of a Diploma in Early Childhood Education and Care and has ambitions of qualifying as a teacher. Without a Working With Children Check clearance, she will be unable to work as a teacher. Taking into account all the information before us, we are satisfied that it is in the public interest to grant the applicant a Working With Children Check clearance.

Orders

59. The orders are as follows:

1. The decision of the Children's Guardian dated 2 February 2016 to refuse to grant the applicant a 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: 07 June 2018