CNE v Children's Guardian

[2017] NSWCATAD 41

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNE v Children’s Guardian [2017] NSWCATAD 41
Hearing dates:	4 October 2016
Date of orders:	30 January 2017
Decision date:	30 January 2017
Before:	J Anderson, Senior Member B Field, General Member
Decision:	The decision of the Children’s Guardian to refuse to grant the Applicant a Working with Children Check clearance is affirmed
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 – refusal of Working with Children Check clearance – what the correct and preferable decision is having regard to the material before the Tribunal -– where proceedings commenced for offence of attempt to murder – not proceeded with and Applicant charged with alternative offence of use offensive weapon to commit indictable offence – history of offences of violence and significant drug use – Subsequent rehabilitation and abstinence from drugs – whether the Applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CNE (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: A Perigo (Respondent) Solicitors: Macquarie Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610245
Publication restriction:	See Order (2)

REASONS FOR DECISION

1. The Applicant, CNE, seeks review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (“the Act”).

2. On 1 September 2015, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a working with children check clearance.

3. The Respondent conducted a risk assessment of the Applicant, and on 1 April 2016, determined to refuse the Applicant’s application for a working with children check clearance.

4. On 15 April 2016, being dissatisfied by that decision, the Applicant made this application for review of the respondent’s decision.

5. The matter was subject to directions hearing during which orders were made for the filing and service of documents. On 4 October 2016, a hearing of the application was held. At the conclusion of the hearing, the Tribunal directed the parties to clarify information contained in records produced by the Department of Family and Community Services (“the Department”) referring to the Applicant as a “Person Causing Harm“ (PCH) to a child.

6. Mr Tabchouri, representing the Applicant, provided a response to the Tribunal dated 20 October 2016. In his correspondence, Mr Tabchouri indicated he had contacted the Department and was awaiting written confirmation that the reference to the Applicant as a “Person Causing Harm” to a child could not be removed from the Department’s records. The Tribunal had not received correspondence from the Department or from the Crown Solicitor’s Office (representing the Respondent) at the time of writing these Reasons for Decision.

The Child Protection (Working with Children) Act

7. The objects of the Act are as follows:

3 Object of Act

The object of this Act is to protect children:

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

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

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

9. The Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant Working with Children Check clearance, or (b) there is a current application, by the person, to the respondent for the relevant Working with Children Check clearance: s 8(1).

10. Section 18 sets out how the respondent is to determine an application for a clearance. Subsections 18(2) and (3) provide:

18   Determination of applications for clearances

(1)  …

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

11. A person is subject to an “assessment requirement” if any of the matters specified in Schedule 1 of the Act apply. These include circumstances where proceedings have been commenced against a person for an offence specified in Schedule 2 of the Act if the offence was committed as an adult and the person is not because of those proceedings a disqualified person.

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

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

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

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

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

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

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

7. the person’s present age,

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

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

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

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

13. Having undertaken a risk assessment under section 15, on 1 April 2016 the respondent determined to refuse the Applicant’s application for a clearance as she was satisfied, pursuant to section 18(2), that the Applicant poses a risk to the safety of children.

Role of the Tribunal

14. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the respondent, including a decision to refuse a Working with Children Check clearance. That section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a Working with Children Check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) …

(3) …

(4) An Applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

15. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children’s Guardian. Administrative Decisions Review Act 1997, s 63.

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

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

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

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

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

21. In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

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

Administrative Decisions Review Act 1997

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

1. to affirm the decision of the respondent, or

2. to vary the decision, or

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

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

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

Child Protection (Working with Children) Act 2012

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

25. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."”

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

27. To assist in the interpretation of the Act, regard may also be had to the second reading speech for the Bill which became the present Act. Mr Dominello, the then Minister for Citizenship and Communities, on 13 June 2012 stated:

"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."

28. The Minister stated further:

"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 is 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."

29. In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an Applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

Burden of proof

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

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

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

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

Evidence before the Tribunal

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

35. The Applicant relied on his application, statutory declarations dated 24 November 2015, 20 April 2016 and 29 September 2016, a number of character references, documents relating to his tertiary studies, his income and employment, his financial commitments, and his correspondence with various persons. The Applicant also relied upon a report of Ms Danijela Savic, Clinical Psychologist dated 8 August 2016.

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

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

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

38. The matter that caused the refusal of the Applicant’s application for a clearance was an offence of attempt to murder in respect of which proceedings were commenced against the Applicant in 2001. That charge was not proceeded with, and the Applicant was instead charged with the alternative offence of use offensive weapon to commit indictable offence. However, the fact that proceedings commenced against the Applicant for an offence of attempt to murder triggered a risk assessment by the Respondent (see clause (1)(b) of Schedule 1, and clause 1(ab) of Schedule 2 of the Act).

39. The agreed facts indicate that in 2001 the Applicant was in a relationship with a girlfriend, Miss S. The Applicant became aware that a man known to him (Mr K) had an interest in Miss S. The Applicant telephoned Mr K and left a message saying: “….stop playing with my girlfriend otherwise I will kill you”.

40. On the day of the offending, the Applicant received a telephone call from Miss S’ brother informing him that he had some information, and suggesting they meet. The Applicant met with him and another male before meeting with Miss S who was at the relevant time in the company of Mr K. An argument occurred between the Applicant, Miss S and Mr K.

41. Miss S and Mr K were walking together close to the kerb of a road when the Applicant, who was driving his father’s car, drove the car on the incorrect side of the road towards Miss S and Mr K. As the car approached, Mr K pushed Miss S onto the footpath. Mr K was struck by the car on the right knee, was thrown over the car’s bonnet and landed on the front lawn of a house. Miss S and Mr K got up and ran to the front door of the house, seeking assistance from the occupant.

42. The Applicant got out of the car and approached Miss S and Mr K. The Applicant told Miss S to come with him otherwise he would kill Mr K. Miss S refused to go with the Applicant and the Applicant returned to the car. Mr K and Miss S commenced walking to Mr K’s home, separating en route. The Applicant, accompanied by his two male acquaintances, proceeded to drive the car in the vicinity of Mr K. The Applicant drove the car at an estimated speed of 30-35 kilometres per hour, mounted a gutter and footpath and collided with Mr K, who was thrown over the bonnet of the car. The car hit a solid brick fence, demolishing it and causing extensive damage to the car. As a result of being struck by the car driven by the Applicant, Mr K suffered a skull fracture and closed head injury, as well as abrasions to his face, back and back of the head. He required surgery as a result of his injuries.

38. The Applicant participated in a police record of interview. During the interview, the Applicant said he had seen his girlfriend holding hands with Mr K and had also been informed by his girlfriend’s brother that his girlfriend and Mr K were kissing in the park. The Applicant admitted that he had smoked heroin three or four hours prior to the event. The Applicant admitted hitting Mr K with the car, indicating he was motivated by anger and revenge. The Applicant said his girlfriend had told him previously they would end up getting married, and at the time of the incident he couldn’t really concentrate or think what to do. He said “My brain just went crazy and then I did what I did”. The Applicant said he wanted Mr K to understand that what he did was wrong, but that he (the Applicant) did not intend to seriously hurt Mr K. The Applicant said that when he was really close he pressed the brakes but the car had already hit Mr K. The Applicant agreed that it was possible that by hitting someone with a car it could have caused much more serious injury and perhaps even fatal injuries.

39. As indicated in a previous paragraph of these Reasons, the Applicant was charged with attempt to murder. However, the charge was not proceeded with and the Applicant pleaded guilty to two counts of the alternative offence of use offensive weapon to commit indictable offence, namely assault and maliciously inflict grievous bodily harm. In 2003, the Applicant was convicted and sentenced to a fixed sentence of three months’ imprisonment on the first count, and a sentence of 20 months’ imprisonment on the second count, with a non-parole period of eight months.

40. In his oral and written evidence before the Tribunal, the Applicant admitted hitting the victim with the car. However, he could not recall hitting the victim him with the car more than once. He said that he punched the victim as well. The Applicant admitted to threatening the victim. The Applicant said that the offence was a very serious offence and that the victim could have died. The Applicant stated that he acted on impulse with no premeditation. He said he was enraged with anger and intended only to nudge the victim, and could not believe what he had done. He stated that on the day of the incident he apologised to the victim, who is now married with a child and who has forgiven him for his actions.

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

46. It is approximately 16 years since the matter occurred.

47. The Applicant has further convictions for offences of violence. In 2005, the Applicant was charged with common assault. The police facts indicate that the Applicant and his co-offender stole money from a nail salon. A worker at the salon attempted to prevent the Applicant’s exit from the salon. In the process the Applicant grabbed the victim’s arm and pulled her away from the exit. The Applicant was convicted of offences, including common assault, and was sentenced to 4 months’ imprisonment.

48. In 2006, the Applicant was participating in a program at a drug and alcohol rehabilitation centre. On the day in question, he was being visited by his brother. A confrontation ensued between the Applicant and one of the centre’s staff members who had advised that the Applicant’s brother was required to leave. The Applicant threatened to punch the victim. No physical contact occurred. However, the Applicant punched one of the centre’s window, causing it to break and shatter. The Applicant was subsequently charged by police. He was convicted of offences, including common assault, and was sentenced to 10 months’ imprisonment with a non-parole period of six months.

49. In 2007, the Applicant was in prison serving a sentence of imprisonment. On the day in question he was the victim of an assault by other inmate/s of the prison. He was taken to hospital where he was being supervised by a prison officer. According to the police facts and the witness statement of the prison officer, the Applicant was attempting to leave the hospital room to have a cigarette against the officer’s instructions. The prison officer attempted to handcuff the Applicant and a physical altercation occurred. The Applicant struck the prison officer to the side of his head with a closed fist, causing the officer to fall onto the floor, landing on his thumb and hitting the back of his head on the tiled floor. While the officer was lying on the floor, the Applicant put both his hands around the officer’s neck, causing the officer to struggle to breathe. The officer, who was trying to strike the Applicant while the Applicant’s hands were around his neck, was able to loosen the Applicant’s grip and shout for assistance from hospital staff.

50. Police were unable to interview the Applicant at the relevant time as the Applicant was being treated with morphine for the injuries he had sustained during the earlier assault on him. However, he later told the police that he had been unconscious prior to the incident involving the prison officer. The Applicant was charged with assault of a law enforcement officer in execution of the officer’s duty and inflict actual bodily harm. He was convicted and sentenced to seven months’ imprisonment with a non-parole period of 5 months.

51. In 2009, the Applicant was observed by police to be in possession of a hammer in the early hours of the morning. At the relevant time, the Applicant was subject to bail conditions which included that he not enter a two kilometre radius of the area in which he was located. The Applicant was arrested for breaching his bail. The Applicant, who was observed by police to be unsteady and slurring his words, resisted arrest and was involved in an altercation with police. According to the police facts, the Applicant kicked the thigh of a police officer while being conveyed by police van to a police station. On being placed in a cell by officers, the Applicant moved towards one of the officers with his right fist clenched and pulled to the rear of his head. The officer moved his hand in front of the Applicant’s face, blocking the punch. The Applicant was charged with offences, including assault and resist officer in execution of duty, and was sentenced to 10 months’ imprisonment with a non-parole period of 4 months.

52. In his oral and written evidence, the Applicant said that his criminal offending occurred over the period of his 8 years of drug use. In relation to the 2007 offence, the Applicant said that he had been badly bashed in prison and had been knocked unconscious. He said that when he regained consciousness the prison officer’s hands were on him, and he retaliated. The Applicant did not agree with all of the police facts in relation to that offence. However, he admitted that he punched the officer. He stated that he later apologised to the officer. In relation to the 2009 offence, the Applicant said that he had taken Xanax tablets prior to the incident and was heavily under the influence of that drug at the time.

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

53. At the time of the trigger offending the Applicant was 19 years old.

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

54. At the time of the trigger offending, the victim was 22 years old.

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

55. There was a three-year age difference between the Applicant and the victim. The Applicant and the victim were acquainted with each other and with the Applicant’s then girlfriend.

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

56. The victim was not a child.

(g) The Applicant’s present age

57. At the time of the Tribunal hearing, the Applicant was 35 years of age.

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

58. The Applicant has an extensive criminal history commencing as a child in 1996 and continuing through until 2010. After the trigger offending in April 2001, the Applicant committed further offences as follows:

• October 2001 - take & drive conveyance;

• January 2002 - shoplifting;

• June 2002 - shoplifting;

• August 2002 - shoplifting, larceny;

• April 2004 - shoplifting, custody of a knife in public place;

• October 2005 - common assault, larceny, possess prohibited drug; (See earlier paragraphs for details of the common assault offence);

• October 2006 - common assault, destroy/damage property;

• December 2006 - goods in personal custody suspected being stolen;

• March 2007 - goods in custody;

• May 2007 - fail to appear in accordance with bail undertaking;

• June 2007 - custody of knife in public place;

• October 2007 - assault law enforcement officer; (See earlier paragraph for details of the offence)

• January 2008 - receive/dispose stolen property;

• August 2009 - goods in custody;

• October 2009 – larceny, breach of bail, assault officer in execution of duty, resist officer in execution of duty, possess house breaking implements; (See earlier paragraphs for details of the assault offence)

• June 2010 - destroy or damage property.

59. The Applicant has a history of drug use, which has included the injecting of heroin and the use of cocaine. The Applicant has been called up for breaching good behaviour bonds. He has served a number of sentences of imprisonment between 2003 and 2011. His most recent sentence of imprisonment concluded in January 2011. The Applicant has also been subject to the supervision of the Probation and Parole Service during various periods. His last period of supervision ended in 2013.

60. The Applicant was in a previous relationship with a woman who gave birth to their daughter in August 2006. Both the Applicant and the woman were using drugs around the time of their daughter’s birth and afterwards. When their daughter was two months’ of age, the Applicant and the woman participated in a residential drug rehabilitation program at a treatment centre. Records produced by the Department indicate that during this period the Applicant and the woman attended the christening of their daughter. Upon their return to the centre, the Applicant was noted to have consumed alcohol, contrary to the centre’s policies. Following confrontation by the centre’s staff, the Applicant and the woman subsequently left the centre without their child.

61. In his oral and written evidence, the Applicant admitted consuming alcohol on the day in question. However, he denied abandoning his daughter, stating that he was prevented by the centre’s staff from being with his daughter upon his return to the centre, and was subsequently asked to leave. The Applicant stated that he was led to believe that Departmental case workers would be collecting the baby from the centre.

62. Records produced by the Department indicate that in November 2006, the Applicant took his daughter to hospital where she was observed to have extensive bruising on her face, temple and eye socket, and had bite marks on her arm. Departmental records indicate that when questioned by hospital staff about his daughter’s injuries, the Applicant’s version of events was inconsistent with the actual injuries sustained.

63. The Applicant was subsequently recorded on Department records as a person causing harm to a child. The Department applied for the removal of the Applicant’s daughter from his and his former partner’s care. Records produced by the Department indicate an initial plan was for the child to be restored to the Applicant and his former partner within two years. The child was placed under the responsibility of the Minister until she reaches the age of 18. She has been cared for by the Applicant’s parents in their home for many years. The child was not restored to the Applicant’s care, and the Applicant has not applied to regain parental responsibility of the child, who is now 10 years old.

64. In his oral and written evidence, the Applicant denies harming his child as alleged by records produced by the Department. He said that (in 2006) he had observed his partner bite their daughter and his daughter had also fallen from a pram. He stated that he did not disclose this information at the relevant time for fear of getting him and his partner into trouble, both of whom were under the influence of drugs at the relevant time.

65. The Applicant has participated in drug rehabilitation programs, including a residential program in about 2004/ 2005 and another in 2006. According to records produced by the Department of Corrective Services, the Applicant attended eight months of the residential program in 2004, reaching a senior level whereby he was a co-ordinator of the treatment program. The records also indicate the Applicant met his former partner while they were both part of the program [1] . The Applicant relapsed into drug use following his attendance in 2004/2005 and again in 2006.

    1. Exhibit R3, p 428

66. In November 2009, the Applicant referred himself to a residential drug rehabilitation program where he completed approximately seven months of treatment and rehabilitation. Records produced by the Department of Corrective Services noted in 2010 that “his performance and commitment to his recovery has been very encouraging” [2] . The Applicant reports that he has abstained from drugs for almost six years.

    2. Ibid, p 699

67. The Applicant has been in paid employment for the last five years. He has obtained a forklift licence and a heavy vehicle driver’s licence. He currently works as a truck driver. There is no evidence of any complaints or disciplinary proceedings in respect of the Applicant’s employment. An employer reference refers to the Applicant as “a committed individual in both his personal and professional life…………………..who leads by example” [3] .

    3. Exhibit R1, p 139

68. In 2011, the Applicant married his wife who he met while holidaying in Fiji. At the present time, there are no children of that marriage. The Applicant has paid rent for at least two years. Currently, he has a home loan and a car loan.

69. In December 2015, the Applicant successfully completed a Certificate IV in Community Services Work and he is currently studying for his Diploma of Community Services. The Applicant completed training courses with a drug and alcohol counselling service and undertook volunteer work with that service from January to April 2016. In his volunteer role, the Applicant provided assistance to people experiencing drug and alcohol issues. The coordinator of the service confirmed that there had been no disciplinary proceedings brought against the Applicant during his 52.5 hours of volunteer service, and had “found him to be a person of integrity, and a committed worker, intent on achieving his goal of developing a career in the community services sector”. The Applicant’s volunteer work was suspended, consistent with the service’s policies, following the Respondent’s refusal of the Applicant’s application for a working with children check clearance.

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

70. The Applicant relied on the oral and written evidence of Ms Savic, Clinical Psychologist. Ms Savic reviewed the Applicant on eight occasions commencing in May 2016. The sessions included cognitive behaviour therapy, anger management, and an assessment of the Applicant’s risk for the purposes of the Tribunal proceedings.

71. In addition to her clinical review, Ms Savic utilised a number of tools to assess the Applicant’s current psychological functioning and level of risk, including a Suicide Risk Assessment, Depression Anxiety and Stress Scale, State-Trait Anger Expression Inventory-2 (STAXI-2), Personality Assessment Inventory (PAI) and the HCR-20 (Assessing Risk for Violence). Ms Savic stated that the results of testing indicate the Applicant is emotionally stable and has stable relationships, is reasonably empathetic, and has reasonable control over the expression of anger and hostility.

72. In addition, Ms Savic utilised the HCR-20 tool for assessing the Applicant’s risk for violence. In her report, Ms Savic noted that much research and literature indicates that prior violent behaviour and the number of times it has occurred is perhaps the best single predictor (of future violence). However, she referred to there being some data which suggests that the relationship between past violence and future violence is greatest in the years immediately following the most recent violent episode and that the risk decreases with time.

73. Ms Savic recorded a high level of risk for the Applicant’s historical risk factors of History of Violence and Young Age at First Violent Incident. [Interestingly, Ms Savic recorded a low level of risk for the Applicant’s historical risk factors of Substance Use Problems and Relationship Instability, despite referring to the Applicant’s past drug use and relationship problems as being previous issues for the Applicant].

74. Ms Savic recorded a medium level of risk for Prior Supervision Failure. All other historical risk factors, as well as current factors and future factors, were recorded by Ms Savic as a low level of risk. Ms Savic calculated a score of 7 out of 40, which indicates a low risk. She concluded:

(The Applicant) has shown remorse during his psychological sessions, maintaining and living a positive future. The battery of psychometric tests all consistently report that he displays no identified issues with state and trait anger, no clinical scales were identified as significantly problematic in the Personality Inventory and in turn the Risk Assessment concluded Low Risk.

75. In her oral evidence, Ms Savic stated that the Applicant has high levels of insight into, and remorse for, his past behaviours. She also stated that the Applicant is at low risk of impulsivity and has great awareness of anger management strategies. Ms Savic is of the view that the Applicant does not require further treatment. Furthermore, Ms Savic stated the Applicant was open about his past history and answered questions in a truthful manner. Ms Savic’s professional opinion is that the Applicant does not pose a risk to the safety of children.

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

76. The Applicant provided a large amount of documentary evidence in support of his application, including evidence of his employment and income over the last several years, the education and qualifications he has attained, and a number of character references which support the changes he has made to his life.

77. The Applicant acknowledged his history of offences, which he states were committed in the context of his drug use and the funding of his drug habit. The Applicant stated that he became addicted to strong pain medication following a motor vehicle accident in 1999 for which he sustained serious injuries and spent a lengthy period of time in hospital and in recovery from his injuries. He stated that he started using heroin with a former partner and with former friends with whom he was socialising at the time. He stated that he had unsuccessfully attempted drug rehabilitation, with a subsequent relapse and consequent further offending.

78. As indicated in earlier paragraphs, in 2009 the Applicant entered into a residential drug rehabilitation program where he underwent treatment and rehabilitation for a seven month period. The Applicant states that he has not consumed drugs for almost six years and has not been convicted of any criminal offences since 2010. He has attended, and continues to attend, Narcotics Anonymous.

79. The Applicant stated that he has also undergone anger management training. This is corroborated by records provided by the Department of Corrective Services which indicate that while under supervision in 2011, a referral was made for an anger management course. It was also corroborated by the evidence of Ms Savic, who noted that the Applicant’s anger management skills were consistent with having being acquired through prior training.

76. The Applicant stated that he is a changed person, completely different from the person he was at the time of his offending. He stated he has a stable family life and his wife does not have a history of crime or drug use. The Applicant wishes to complete his Diploma in Community Services and pursue a career as a drug and alcohol counsellor so that he can help others in need.

77. The Applicant acknowledged that he and his former partner were not in a position to care for their daughter at the relevant time and that it was in his daughter’s best interests that she be cared for by his parents. The Applicant has supervised contact with his daughter. That supervision is provided by the Applicant’s parents, with whom he has a close relationship and is in regular contact. He provides some financial assistance to his daughter. The Applicant has indicated a wish to regain parental responsibility of his daughter. However, he has not yet attempted to do so and acknowledges the stability of the environment and care provided by his parents. He stated that he has also been advised the process to regain custody of his child is likely to incur significant legal fees.

78. The Applicant provided a number of character references which corroborate the significant changes he has made to his life. These include letters of support from his mother and father and personal references by Mr Y, a community support worker with a non-government community justice program, and by Mr L, a clinical consultant with the Department’s Community Justice Program.

79. In his reference, Mr L states that he has known the Applicant for more than six years, during which he has known the Applicant to be free from illicit substances and to be serious in maintaining a strong recovery. Mr L stated:

(The Applicant’s) historical issues regarding substance use has assisted him with drawing on past negative choices and utilising his experiences in a positive manner. (The Applicant) is highly regarded as a role model to young people, experiencing similar circumstances (the Applicant) has had to endure and overcome and is looked up to and respected at the highest level. (The Applicant) has demonstrated remorse on many occasions, in relation to the choices he has made as a young person and has worked and continues to work towards moving forward. I would request the court to seriously consider, providing (the Applicant) with the opportunity to fulfil his career choices, working in the community service sector and applying his lived experiences to supporting young people, experiencing similar situations and difficulties.

84. It is noted that Mr Y and Mr K are recorded on records produced by the Department of Corrective Services as having visited the Applicant while the Applicant was serving his most recent sentence of imprisonment which concluded in January 2011. Their relationships to the Applicant are recorded as “friend” [4] . It is also noted that when contacted by an officer of the Respondent conducting a reference verification check, Mr Y confirmed that he met the Applicant while a patient in a rehabilitation unit, and has never had contact with the Applicant in a professional capacity with his employer [5] .

    4. Exhibit R4, p1373

    5. Exhibit R1, p152

85. The Applicant referred to the treatment he has undertaken, including cognitive behaviour therapy, anger management, and drug rehabilitation. In addition, he states that during the course of his studies he has also learned about domestic violence and the impact of violence in the community. The Applicant said he has a very strong support network comprising his family, his teachers and students at TAFE, and friends who are former drug users who have completely changed their lives and currently occupy senior positions in community services’ organisations.

86. Mr Tabchouri for the Applicant submitted that the Applicant’s trigger offending was not a random act, but arose from a pre-existing relationship and was committed when the Applicant was only 19 years of age and of considerably less maturity. Mr Tabchouri submitted that the Applicant has served his time in prison and has gained insight and maturity. Mr Tabchouri submitted that the Applicant’s other criminal offences were minor offences committed in the context of the Applicant’s drug use at the relevant time.

87. Mr Tabchouri said the Applicant has proven to be a hardworking and reliable individual who has worked very hard to change his life to create a positive future. Mr Tabchouri submitted that the Applicant has undertaken significant rehabilitation, has appropriate support mechanisms in place, and neither he nor the community should be deprived of the opportunity for the Applicant to work in his chosen occupation in the provision of services to the community.

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

88. The Respondent opposes the application. Counsel for the Respondent noted the changes the Applicant has made to his life and the passage of time since the trigger offending occurred. However, Counsel for the Respondent submitted that the Applicant’s trigger offending was serious, was committed in the company of others, and may be seen as premeditated. In addition, Counsel for the Respondent submitted that the Applicant’s total criminal record is serious and his offences are still recent.

CONCLUSION

89. In this matter, the role of the Tribunal is to review the decision of the Children’s Guardian to refuse the Applicant a working with children check clearance, and to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law.

90. There is no presumption that the Applicant poses a risk to the safety of children by reason of his offending, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.

91. It is acknowledged that Applicant’s crime has not involved children. The trigger offending was committed almost 16 years ago and therefore a significant passage of time has elapsed since its occurrence. The Applicant received punishment for his crime and completed his sentence. He has accepted responsibility for his past actions and is remorseful. He has engaged in treatment and counselling to address his violent offending and his use of drugs. In this regard, the Tribunal finds that the Applicant is genuine and motivated in his desire to change his life and to help people with drug and alcohol issues in their recovery journey, and to lead, by example, healthier and more productive lives.

92. However, the Tribunal finds that the Applicant’s trigger offending involved a serious and deliberate act of violence and caused harm to the victim, and it is indeed fortunate that the victim was not killed or more seriously injured. Furthermore, it cannot be said that the Applicant’s trigger offending in 2001 was an isolated act of violence. Rather, the Applicant went on to commit further offences of violence in 2005, 2006, 2007 and 2009. It is recognised that the Applicant’s later offences were of lesser severity than the trigger offending and were committed in the context of significant drug use. However, the Tribunal does not accept that the Applicant’s subsequent offences were minor or trivial as suggested by Mr Tabchouri. It is acknowledged that the Applicant was affected by substances in relation to the 2009 offence, and had been the victim of a serious assault immediately prior to the 2007 offence. Nonetheless the Applicant’s actions demonstrated a disregard for the safety and welfare of others. The fact that sentences of imprisonment were imposed is indicative of their seriousness and the context in which they were committed.

93. In addition, the Tribunal accepts the Respondent’s submission that the Applicant’s violent offending is still relatively recent, with his most recent violent offending occurring in 2009 and his release from prison occurring in 2011. The Applicant’s supervision period has ended only in 2013. The Applicant has therefore not yet experienced an extended period of time without supervision or formal restrictions in place. This is particularly relevant given his significant history of drug use and his extensive contact with the criminal justice system.

94. In addition, the Tribunal notes that the Applicant has had previous attempts at rehabilitation only to relapse into drug use and further violent offending. In this regard neither prior drug rehabilitation (which included a number of months in a residential program) nor prior sentences were effective previously in preventing the Applicant’s continued offending.

95. The Tribunal accepts that the Applicant has now experienced almost six years of abstinence, which is longer than any previous periods of abstinence. This has coincided with an absence of any further criminal convictions in this period. However, although it is clear that the Applicant has made significant changes to his life, his drug use and offending cannot be said to have occurred in the more distant past. His drug rehabilitation was completed prior to his most recent prison sentence. His anger management course was undertaken while under supervision. His treatment by Ms Savic occurred in 2016 in the context of his application to this Tribunal. Taking into all of the material before it, the Tribunal could not, at the present time, be satisfied that there is not a real and appreciable risk of relapse into drug use and that there is not a real and appreciable risk of violent offending.

96. The Tribunal notes that since 2007, there have been no further notifications of child protection issues concerning the Applicant. The Tribunal finds that the reference to the Applicant on child protection records as a person causing harm relates to the Applicant’s conduct in previous years which gave rise to the child’s removal from his and his former partner’s care. In the Tribunal’s view, and in absence of clarification by the Respondent, it does not necessarily reflect the Department’s present characterisation of the Applicant.

97. The Tribunal takes into account the Applicant’s assertion that he was asked to leave the rehabilitation centre in 2006 and did not abandon his child. The Tribunal also has regard to the Applicant’s claim that he was not responsible for the injuries to his child which occurred not long after the incident at the centre. The Tribunal notes that the Applicant was not charged with offences arising out of those matters and the Tribunal need not make specific findings about whether they occurred as alleged by the records produced by the Respondent. However, the Tribunal is satisfied that the circumstances surrounding those matters means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven, as contemplated by his Honour Justice Beech-Jones in BKE[6] . In this regard, the Tribunal notes that the Applicant was using drugs around the time of those matters, he was spending periods of time in prison, and was clearly not in a position to care for a child. The Tribunal also notes that the removal of the child from the care of the Applicant and his former partner does not appear to have been contested and an initial plan for restoration did not occur. The Tribunal was satisfied that at the relevant time neither the Applicant nor his (then) partner was in a position to provide appropriate care to the child and therefore the child was at risk of harm.

    6. BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [29]

98. In the view of the Tribunal, it is of relevance that the Applicant has not sought subsequently to alter the arrangements that have been in place in relation to the care of his daughter. The Tribunal accepts that the stability of her care has been an important consideration for the Applicant. Indeed, there is no evidence to indicate that his parent’s care of the child has been anything other than appropriate and loving. However, the lack of direct and unsupervised access with his child has meant that there is limited evidence before the Tribunal as to the Applicant’s conduct with children since 2007.

99. In addition, the Applicant’s character references, although corroborative of the changes the Applicant has made to his life, contain little information about the Applicant’s contact with children and do not refer specifically to the Applicant’s application for a working with children check clearance.

100. The Tribunal acknowledges that the Applicant has been assessed by his treating psychologist as presenting a low risk of violent reoffending. The Tribunal takes into account Ms Savic’s testing and review of the Applicant, but was somewhat cautious of the fairly limited way in which her assessment dealt with the Applicant’s significant history of drug use and relapse, and the period of time since the Applicant’s criminal offending. Moreover, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the Applicant poses a risk to the safety of children.

101. The Tribunal accepts that if the Applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. Whilst the Applicant has indicated he does not propose to work with children exclusively, this is not necessarily material to the Tribunal’s determination.

102. 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. As indicated earlier, the Applicant’s trigger offending was serious and involved violence. The Applicant has committed further acts of violence since that time. Whilst children were not victims of the Applicant’s offences, it is clear that children can be indirect victims of violence. If the Applicant were to re-offend the harm to a child victim may be significant. The Tribunal cannot be satisfied that the Applicant does not pose a risk to the safety of children.

103. Therefore, on the balance of probabilities and taking into the seriousness and gravity of the Applicant’s offending, the Tribunal finds that at the present time the Applicant poses a risk to the safety of children and should not be granted a working with children check clearance.

104. Finally, the Tribunal recognises the challenges faced by the Applicant as he has sought to make changes to his life. He is to be commended for embarking on a path of rehabilitation, and it is hoped that he will continue to make positive lifestyle choices. The Tribunal’s refusal on this occasion to affirm the Respondent’s decision to refuse a working with children check clearance does not necessarily mean that the Applicant will fail to obtain a clearance in the event he makes a further application at some time in the future. Whilst a person is prevented from making a further application for a period of five years after the refusal notice was given, a change of circumstances can invoke the discretion of the Children’s Guardian to permit a further application earlier than five years (see section 13A of the Act).

105. The Applicant may wish to consider an early application for a working with children check clearance in the future. However, it will be a matter for the Children’s Guardian to determine, on the information provided by the Applicant at that time, as to whether that application be permitted.

ORDERS

1. The decision of the Children’s Guardian dated 1 April 2016 to refuse to grant the Applicant a working with children check clearance is affirmed.

2. The disclosure of the name of the Applicant and any victim or child referred to in these reasons is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Endnotes

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

Registrar

Decision last updated: 30 January 2017