CWJ v Children's Guardian - [2017] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CWJ v Children’s Guardian [2017] NSWCATAD 227
Hearing dates: 5 May 2017
Date of orders: 19 July 2017
Decision date: 19 July 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
B Field, General Member
Decision:
The decision of the Respondent to refuse a Working with Children Check Clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Category: Principal judgment
Parties: CWJ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Mr Guterras (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00378524, 1610772
Publication restriction: Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act, disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.

REASONS FOR DECISION

Introduction

CWJ applied for a Working with Children Check (WWCC) clearance because he wants to work as a counsellor in mental health services. The Children’s Guardian (the Respondent) was required under the Child Protection (Working with Children) Act (2012) (the Act) to conduct a risk assessment because CWJ had been convicted of “wound with intent to do grievous bodily harm and malicious wounding” in 1993 (the “violent offence”).
There are no other complaints of violent conduct against CWJ and his only other contact with the criminal justice system are minor drug related offences, the most recent of which occurred more than 10 years ago.
The violent offence was perpetrated on a woman who had been in a relationship with CWJ for about 2 years. CWJ was aware that she wanted to end their relationship. CWJ has experienced difficulties throughout his adult life dealing with problems arising from interpersonal conflict, which resulted in a pattern of destructive behaviours such as attempts of suicide and addictions to cannabis and alcohol. On this basis the Respondent determined that CWJ posed a risk to the safety of children and refused to grant him a WWCC clearance.
CWJ seeks a review of this decision. The paramount consideration in undertaking this review is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: The Act, s 4.
The Tribunal finds that CWJ poses an unacceptable risk to the safety of children for the reasons set out below. The correct decision is to refuse to grant a WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63.

The material before the Tribunal

The Tribunal was provided with the following material:

Application received from the Applicant on 21 November 2016.

Section 58 documents filed by the Respondent received on 24 January 2017.

Further documents filed by the Respondent received 19 April 2017.

Submissions filed on behalf of the Respondent received 19 April 2017.

Documents received by RW by summons returned on 3 May 2017.

Letter from NS, Psychologist dated 7 February 2017.

Letter from the Applicant undated and received by Crown Solicitors on 6 March 2017.

Further submissions filed by the Respondent dated 15 April 2017 (which contained some amendments to the earlier submissions) and filed on 5 May 2017.

Documents received by Dr GD (psychiatrist) by summons returned on 5 May 2017.

Further documents received by Dr GD by summons returned on 5 May 2017.

A hearing was held in Sydney. CWJ was present and not legally represented. CWJ gave oral evidence at the hearing, as did the CWJ’s psychologist (NS).

The Applicant’s history in the criminal justice system

The violent offence took place in 1992. CWJ purchased 2 knives intending to hurt the victim because she was going to end their relationship. The victim was in CWJ’s car when he stabbed her lower back and then tried to strangle her. She escaped and CWJ pursued her, wrestled her to the ground and again tried to strangle her. He eventually released her and she ran away. He then went to a motel where he tried to kill himself with another knife he had purchased with this in mind.
CWJ was initially charged with “attempted murder” but pleaded guilty to “malicious wounding with intent to do grievous bodily harm”. He was sentenced to 500 hours of community service, which the Prosecution successfully appealed. The sentence was increased to a fixed term of 12 months imprisonment served by way of periodic detention, which was completed without incident.
In 2003 and 2006, the Applicant was convicted of drug related offences principally involving the possession and cultivation of cannabis for which he was fined and given community service orders.

Factors the Tribunal must take into account

Section 30 (1) of the Act provides the factors that the Tribunal must consider in reviewing the Respondent’s decision:

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.

CWJ was 22 years old at the time of the violent offence. The victim was 20 years old. The age difference was about 2 years and CWJ and the victim had been in a relationship together for about 2 years. CWJ is now 47 years old.

CWJ’s criminal record

The violent offence occurred 25 years ago and the drug related offences occurred more than 10 years ago. The isolated episode of violent conduct and the period of time that has elapsed since there has been any contact with the criminal justice system are factors in favour of CWJ.
CWJ asks the Tribunal to have regard to the leniency of the sentence given to him in relation to the violent offence. The initial sentence and the increased sentence on appeal, can both be regarded as in the low range. Notwithstanding this the Tribunal regards the violent offence to be at the serious end of the spectrum. CWJ’s conduct could have led to the victim sustaining fatal injuries. Further the victim was vulnerable. She was alone in CWJ’s car, was in a relationship with him and had no warning that he was intending to harm her.

The likelihood of repetition of the offences or conduct and the impact on children of any such repetition

The isolated nature of CWJ’s violent conduct suggests the likelihood of a repetition of the violent offence is low. If it was repeated and perpetrated on a child it would have a devastating impact.
The Respondent submits that the violent offence is part of a pattern of CWJ’s unpredictable and disturbed behaviour in response to stress and points to the substantial evidence obtained by the Respondent that supports this. The question for the Tribunal to consider is to what extent this pattern of behaviour amounts to CWJ currently posing an unacceptable risk to the safety of children.

CWJ’s response to stress

CWJ said that the violent offence occurred because his mental health had deteriorated in response to the stress of a relationship ending. This is noted to be part of a pattern of responses in the pre-sentence report prepared in 1993, which states CWJ “appears to have difficulty dealing with rejection and conflict internalising such experiences to the point of self-mutilation and aggressive outbursts”. CWJ acknowledged he has had difficulties with his mental health, particularly in response to stressors arising from personal relationships, for most of his adult life.
CWJ explained that he was born overseas and came to Australia as a young man. He said he was “exceptionally naïve” and “immature” having been raised in a “strict Catholic household”. He was adopted as an infant, which he said led to issues of “loss and rejection”. He engaged in self-destructive behaviours, including attempts at suicide and alcohol abuse from an early age. He said he struggled with “deep and melancholic depression over many years” and used alcohol and cannabis to “self-medicate”. He has also been addicted to gambling. CWJ said when his mental health is poor he feels greater levels of frustration.
The medical records obtained by the Respondent contain references to CWJ’s mental health and substance abuse problems at times requiring hospitalisation. The triggers noted in these records consistently refer to problems arising from personal relationships and the use of cannabis and alcohol.
The records also refer to an incident where problematic relationships with work colleagues contributed to a deterioration of CWJ’s mental health. CWJ saw a psychiatrist (GD) in 2004 in order to provide a court report for a work related compensation claim. This is the only psychiatric report available to the Tribunal. In this report GD diagnosed a “Major Depressive Disorder”. GD said that CWJ was “irritable and always had a bad temper” and on one occasion “punched a wall” in the work place. In relation to his fitness to return to work, GD said provided CWJ stops using cannabis, he is fit for duties. GD also notes CWJ was experiencing relationship difficulties and needed anti-depressants and time off work.
CWJ said the circumstances he found himself in at this workplace made him angry because other staff members were “ganging up” on him. He confirmed he punched a wall on one occasion but did not feel violent towards his co-workers. He said he was not coping well with the situation and was in a “bad way”.
GD’s description of CWJ’s reaction to stress in the workplace is consistent with the deterioration in CWJ’s mental health that is noted to arise in response to stress arising from problematic personal relationships. When CWJ’s mental health deteriorates, the evidence presented is that it includes major depressive episodes, attempts to harm himself or commit suicide, and problematic use of cannabis and alcohol.
CWJ sought to assure the Tribunal that despite this history of mental health and substance abuse problems, he has never harmed children and that he never would. He points to the fact that he completed 500 hours of community service as part of his initial sentence for the violent offence without incident. CWJ said his capacity to cope with stress has improved since becoming a parent because it brings “more responsibilities”. He said he has developed greater awareness of the symptoms that indicate his mental health is deteriorating. He is currently taking a “low dose” of anti-depressant medication and regularly calls on the support of his GP (TD) and his psychologist (NS) when he feels he needs to. Despite having been advised in the past to not use cannabis because of the potential risk to his mental health, he said he uses it on occasions, but is no longer addicted to it. He said TD told him he could use cannabis now and again, “just not all the time”. He said when he is caring for his children, he only uses it after they go to bed.
CWJ acknowledges he has struggled with his mental health for most of his adult life and accepts that his mental health still deteriorates from time to time in response to stress arising from interpersonal issues. CWJ has only provided limited evidence of the change or improvement in the way in which he is currently able to respond to these interpersonal stressors.
TD provided a professional reference in support of CWJ but was not available to give evidence at the Hearing. He has been treating CWJ for about 16 years and the treatment records obtained by the Respondent include records of contact up to March 2017, which notes “Melancholic Depression – stable”. This reason for contact appears regularly throughout TD’s treatment records. TD provides a diagnosis of “major depressive illness” but said CWJ is currently in “excellent physical and psychological condition”. TD says he is “very satisfied” that CWJ is “safe”. TD said he is aware that CWJ is pursuing further education in mental health and offered “I will provide him a placement in the substance unit which I attend”.
TD’s reference is supportive of CWJ. But it is given in the context of their ongoing therapeutic engagement and is not in the form of an independent expert report or reference. TD does not provide specific details of CWJ’s current cannabis or alcohol use, or CWJ’s current capacity to cope with situations of stress, particularly with reference to CWJ’s past history of mental health and substance abuse problems.
TD referred CWJ to an “allied health professional” (RW) in 2012. Around the same time he also referred CWJ to a psychologist (NS). CWJ said TD wanted a “different perspective”. RW saw CWJ from August to October 2012 and reported back a “long term history of drug and alcohol use now aggravated by marriage breakdown causing return to wide mood swings and depressed state”.
NS has been providing CWJ “psychotherapy and counselling for substance use, gambling and depression” for about 5 years. The notes produced by NS indicate that CWJ has a “generalised anxiety disorder”. NS told the Tribunal he has never observed CWJ to be psychotic although in 2015, he wrote to TD because he was concerned CWJ was presenting with disturbing behaviour including auditory hallucinations. NS said his concerns were later alleviated because CWJ explained he was only hearing his own thoughts and voice in his head. NS said he has seen CWJ “elevated, distressed and sad” and considered his suicide attempts to be “mal-adaptive”. As recent as 2016, NS recorded CWJ experiencing relationship difficulties, which impacted on his mental health, particularly thoughts of suicide and feeling depressed.
NS considers that CWJ’s depression is reactive to stressful situations but he is able to function at work and maintain his family responsibilities. He has seen an improvement in the way in which CWJ responds to relationship difficulties. He said CWJ’s current alcohol and cannabis use is “no more mal-adaptive than any other person” but he also agreed that CWJ is prone to use cannabis, alcohol and gambling to self-medicate and has poor impulse control when he is anxious.
NS said he conducted psychometric testing on CWJ in relation to depression, anxiety and stress but could not recall when this occurred or any specific findings. He said that he did not consider CWJ to have a propensity for violent conduct or anger management issues but did not provide any specific details of the basis on which he has formed that view. He said CWJ has responded to his treatment “very well” and “has become a good carer to his family and takes an active role in providing intervention for his special needs child”. NS says “as far as I know [CWJ] has addictions under good management. I have seen no evidence of violent behaviours towards children”.
NS also confirms CWJ seeks help from him when he feels he needs to. NS is aware of CWJ’s “past troubles” and the “charges laid against him” and considers there are “no safety issues in working with children”. NS said he is also employed as a “child protection counselling provider”, which requires him to make reports about children at risk. CWJ reported to him concerns he had about the care provided by the “mother of his children”, which NS considered was CWJ demonstrating to him “protective” behaviours towards his children. However NS and CWJ agreed this was at a time when there was conflict between CWJ and his partner. NS said that in his opinion CWJ does not pose a risk to the safety of children.
In considering the evidence provided by NS, the Tribunal notes that he said his role is to “support” CWJ, a role he adopts with all his clients. NS also conceded that he did not have access to all the material available to the Respondent. NS has not set out in any detail with particular reference to CWJ’s history of mental health and addiction issues, the basis on which he holds the view that CWJ does not currently pose a risk to the safety of children. NS has not provided detailed expert evidence of CWJ’s capacity to respond to stressful situations in his personal life or at work. Balanced against the weight of evidence presented to the Tribunal of CWJ’s problematic behaviours in response to interpersonal conflict, the Tribunal does not accept the opinion of NS that CWJ does not pose an unacceptable risk to the safety of children.

Any information given in, or in relation to, the Application

The Applicant’s insight into the violent offence

The Respondent submits CWJ lacks insight into the seriousness of his violent conduct against the victim because he refers to himself as also a victim, for example, he said: “I harmed myself more than I harmed her”. CWJ sought to clarify this saying: “I feel I did not express myself clearly and there may have been some misunderstanding. At no stage have I considered myself the victim in the matter for which I have been refused a WWCC and can only imagine the horror experienced at my hands. I can never forgive myself so I understand why you also have reservations in giving me this opportunity”.
CWJ told the Tribunal that he had been suffering from a “psychosis” and had “lost control” of himself. He concedes he intended to harm the victim because she had hurt him and he was not able to “deal with what was going on” for him at the time. He accepted he was not diagnosed with a “psychosis” at the time but he said he felt his actions were out of his control. He said however it was “certainly my fault”.
CWJ refers to the violent offence as “one isolated incident taking two minutes in real time” but he wrote to the Crown Solicitors saying “I cannot, at this time, in my life, believe that I could commit an act of such atrocity. I can only imagine the fear and horror I had struck into the heart of a woman I claimed to love at the time. This I deeply regret, and it was by far the worst experience in my life. I attempted suicide moments after, being unable to live with what I had done. I can only imagine how my victim would have felt”. CWJ said “I tell this story not to excuse my actions in regards to the events which transpired in 1993, but paint a picture of the deeply troubled and lost young man that committed a horrible atrocity to a young woman whom he was supposed to have loved, and tried to then visit an equally horrible punishment on myself”. CWJ’s pre-sentence report states that when discussing the offences, he “repeatedly broke down and has displayed a consistently high level of remorse for his actions”.

The Tribunal considers that CWJ feels genuine remorse and takes responsibility for his actions, but does so only in the context of his belief that his conduct was the product of poor mental health and his limited capacity to cope with his feelings at that time.
CWJ submits that now he is more aware of his mental health, better able to cope with his feelings and seeks help when he needs to. But there is insufficient independent expert evidence of how CWJ is currently better able to respond and deal with interpersonal conflict or stress to satisfy the Tribunal that he does not pose a risk to the safety of children should such stressors arise for example, in a potential workplace.

CWJ’s current circumstances

CWJ is currently separated from his partner with whom he has 4 children. One of his children has “special needs” and he sees his children 5 days a fortnight. He provided certificates of attendance of programs which support parenting of children.
CWJ currently works in a retail outlet selling men’s clothing 3 days a week. He has worked there “on and off” for about 7 years. He said there have been times when he has to be off work for extended periods due to his mental health. His employer provided a written reference (undated) to the Respondent, who described himself as a “friend and an employer”. He has known CWJ for over 8 years and says he is “fantastic with children”. He says CWJ is “level headed and easy to instruct as he strives to be a high achiever in the workplace”. This reference does not refer to the violent offence and while it is supportive can only be afforded limited weight.
CWJ has undertaken courses including horticulture, mental health and counselling. He has completed a Certificate IV Mental Health and is enrolled to do a Diploma of Counselling. CWJ has expressed a desire to help others including vulnerable children, who are experiencing mental health problems similar to the ones he has faced. He wants to pursue a career in counselling or mental health, not specifically with children, but said he would “welcome the chance to work with children with emotional difficulties”.

Conclusion and orders

The violent offence was serious. CWJ has a long history of responding to stressors arising from interpersonal issues or conflict in destructive and problematic ways. In light of this, there is insufficient independent expert evidence of to what extent if any, CWJ is now more able to respond to these sorts of stressors. The word “risk” refers to “real and appreciable” risk, one that is greater than the risk posed ordinarily by any adult (BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523). The Tribunal finds on the balance of probabilities that CWJ poses a real and appreciable risk to the safety of children.
As the Tribunal has determined that CWJ poses an unacceptable risk to the safety of children, it is not necessary to consider the reasonable person and public interest test.
The Tribunal orders that:

The decision of the Respondent to refuse a Working with Children Check Clearance is affirmed.

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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: 19 July 2017

Medium Neutral Citation:	CWJ v Children’s Guardian [2017] NSWCATAD 227
Hearing dates:	5 May 2017
Date of orders:	19 July 2017
Decision date:	19 July 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member B Field, General Member
Decision:	The decision of the Respondent to refuse a Working with Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Category:	Principal judgment
Parties:	CWJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr Guterras (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378524, 1610772
Publication restriction:	Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act, disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.