CXZ v Children's Guardian

[2018] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CXZ v Children’s Guardian [2018] NSWCATAD 36

Hearing dates:

29 June 2017, 9 October 2017, 10 October 2017, 10 November 2017

Date of orders:

14 February 2018

Decision date:

14 February 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member
R Royer, General Member

Decision:

1. The decision of the respondent dated 2 December 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:

ADMINISTRATIVE LAW – Child protection – Working with children - Whether the applicant poses a risk to the safety of children – Assessment of risk - Findings in respect of criminal allegations –- No presumption of risk.

Legislation Cited:

Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Security Industry Act 1997

Cases Cited:

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIRComm 101

Category:

Principal judgment

Parties:

CXZ (Applicant)

Children’s Guardian (Respondent)

Representation:

Counsel:

 

J Macdonald (Respondent)

 

Solicitors:

 

Carson & Associates (Applicant)

  Crown Solicitor’s Office (Respondent)

File Number(s):

2017/23607

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 applied for a working with children check clearance on 1 October 2014 to enable him to work in hospitals as a security officer and to support his son in his sporting career.

2. After having conducted a risk assessment for the applicant, the Children’s Guardian, who is the respondent in this matter, refused to grant him such a clearance. The trigger for the risk assessment was a murder charge laid against the applicant in 1996, for which he was acquitted the following year.

3. The application for review of the decision by the Children’s Guardian to refuse the applicant a working with children check clearance was lodged within time and there is no dispute that the NSW Civil and Administrative Tribunal (‘the Tribunal’) has jurisdiction to hear and determine the application.

4. At the hearing held before the Tribunal, documentary evidence was filed by both parties and the applicant gave oral evidence, as did the psychiatrist engaged by the applicant, Dr Matthew Jones, and the psychiatrist engaged by the Children’s Guardian, Dr Stephen Allnutt.

5. For the reasons that follow, we have decided that the decision of the Children’s Guardian should be set aside and that the applicant should be granted a working with children check clearance.

6. Due to the sensitive nature of these proceedings, an order was made, under s 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 CXZ has been used for the applicant's name.

Legal principles

7. 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. (s 8 of the Act).

8. 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. (s 3 of the Act).

9. The Children’s Guardian has the power to undertake a risk assessment under s 15 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.

10. Under s 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 s 63 of the Administrative Decisions Review Act 1997.)

11. 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. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s 28 of the Act.

12. The jurisdiction of the Tribunal under s 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].

13. 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].

14. In Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42], Young CJ in Eq (as he then was) said:

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

Do the 2015 amendments to the Act apply?

15. In this application, the Tribunal is required to have regard to the matters contained in s 30(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) in deciding this issue.

16. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the applicant would be required to meet an additional test that did not apply at the time of making his application to the Children’s Guardian. The additional test that is provided by s 30 (1A) is:

(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:

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

2. It is in the public interest to make the order.

17. The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The applicant lodged his application for a working with children check clearance before the amendments commenced operation and as a result the amendments do not apply to these proceedings.

Issues

18. The question for the Tribunal is whether the applicant poses a risk to the safety of children, particularly in light of

1. his criminal record;

2. charges laid against him;

3. domestic disputes; and

4. his work history as a security officer;

Evidence

19. There was a large amount of written material tendered in this matter. Oral evidence was given to the Tribunal by the applicant and the psychiatrists, Dr Jones and Dr Allnutt.

Criminal record for CXZ

1995 offences

20. In 1995, the applicant pleaded guilty to theft, drug possession and assault police, for which he was fined. In a statement prepared for these proceedings, the applicant said:

This occurred…when I was deeply depressed..This was also during a period when I was using illicit drugs. ..I was in a bad place at that time and drug effected..I regret my actions. I have never repeated any similar actions.

21. In oral evidence before the Tribunal he stated that he hadn’t taken illicit drugs for twelve years.

22. Given that the offences occurred more than twenty years ago and, on the evidence before us, did not involve children, we have given little weight to them in assessing the applicant’s current risk to children.

No conviction recorded

23. In 1990, the applicant was charged with stealing for which no conviction was recorded.

24. In 1996, the applicant was charged with obtaining a benefit only part payable for which no conviction was recorded.

25. These matters are now over 20 years old and on the evidence before us, did not involve children. On this basis, we have given them little weight them in assessing the applicant’s current risk to children.

Acquittals for CXZ

1996 charges

26. As a young man, the applicant was charged with both the murder of his stepmother’s partner and with malicious damage to his property by fire. The charges were dismissed at committal for lack of evidence. Some years later, the applicant told the police about his involvement in the death of his stepmother’s partner. The applicant was found not guilty of murder, manslaughter or arson, by reason that he was acting as an automaton. It is not disputed that the killing of his stepmother’s partner occurred almost thirty years ago, at the behest of the applicant’s father and following a long history of sustained abuse of the applicant by his father.

27. In oral evidence before the Tribunal, the applicant denied that he would ever act in such a way again, telling the Tribunal that ‘no-one will ever have the control over me that my father had over me.’

28. In determining the weight to be given to these events, we have taken into account that almost three decades have since elapsed. We have also considered the findings of the psychiatrists, Dr Jones and Dr Allnutt, who have each prepared reports for the applicant, details of which are set out below. We accept the expert evidence of the psychiatrists that the applicant’s automatism was caused by an external factor, namely his father who was now dead, and that the event, which occurred thirty years ago, is historical and is not a relevant factor in assessing whether the applicant poses a current risk to the safety of children.

2009 charges

29. In the early hours of January 2009 at the drive-through lane of a fast food outlet, the applicant cut in front of another driver who then shouted abuse at him. The applicant got out of his car, blows were exchanged and the driver’s window was smashed as it was being raised to close it. The applicant was subsequently charged with assault occasioning actual bodily harm and damage to property. Both charges were dismissed in the Local Court with the applicant’s claim of self-defence being accepted by the magistrate.

30. In oral evidence before the Tribunal, the applicant agreed that he and the complainant had ended up fighting on the ground at the fast-food outlet. He told the Tribunal that he had been acting in self-defence but regretted the incident and said that he shouldn’t have got out of his car to approach the other driver. He knows now to walk away from a provocative situation.

31. On the evidence before us, we find that the applicant displayed a lack of judgement in this incident. Nine years have now elapsed since the incident and on the evidence before it, the applicant has not since behaved in a similar manner. We accept the applicant’s evidence that he regrets his behaviour and, in view of the time that has now passed, give the incident little weight in a assessment of the applicant’s current risk to children.

CXZ’s history in security work

32. It is not disputed that the applicant has worked as a security officer for 28 years and has held his current security licence for approximately ten years.

33. A 2009 COPS event record refers to police attendance at a nightclub following ‘an assault involving numerous people’ where the applicant was on duty as a security guard. According to the event record, ‘police are unable to determine if an offence has occurred or if..night club security (employees) were involved in the incident in any way.’ No action was taken in relation to the matter.

34. There is no evidence before us that the applicant was involved in the assault. Accordingly, we give no weight to the record.

35. A July 2014 COPS event record refers to an incident whereby a female attending an emergency ward was restrained by security. According to the report, the applicant was working as a security guard on the evening in question. The record does not allege any unlawful behaviour by the applicant. On this basis, we have given no weight to the incident.

36. A February 2014 COPS event record refers to an argument between patrons and security at a club. According to the record, the status of the applicant in the event is ‘no formal action and witness.’ On this basis, we are not satisfied that the applicant in the argument and have given no weight to the record.

37. There is no evidence of inappropriate behaviour by the applicant in any other COPS events records relating to incidents during the applicant’s employment.

38. In his statement, the applicant explains that:

As a consequence of my employment as a security officer I deal with members of the public, many of whom are intoxicated and/or drug effected at the time of their interaction with me and other security officers…I have been employed as a security officer since 1989…My interactions with police, the COPS records and the fact that I have been convicted of assault in these circumstances over such a long period of time speaks highly for my personal integrity and restraint in a very volatile environment.

39. In oral evidence before the Tribunal, the applicant explained that he has now stopped working as a security guard in nightclubs. This is because there is too much violence to contend within such environments. He is now working as a security guard in a factory and in a shop.

40. We give weight to the fact that the applicant has had minimal interaction with the authorities in the course of a twenty-eight year career as a security officer in venues where violent behaviour is not uncommon.

CXZ’s family history and domestic disputes

41. The applicant has children with two former partners. To his first wife, he has two adult daughters. To his second wife, from whom he separated in 2002, he has three boys, the youngest of whom is 17 years old. We accept the applicant’s evidence that he has been the primary carer of the two older boys since 2002 and the youngest boy since 2015.

42. His first wife alleged that the applicant had been violent to her. This is stated in Family and Community Services (FACS) notes from the mid 1990s which also state that “none of what she said appeared to ‘ring true’; that she would tell one worker one thing then another something else” and that she was seen to have “very little parental attachment or responsibility taken for the children.”

43. In oral evidence before the Tribunal, the applicant agreed that he had once slapped his first wife across the face.

44. In an affidavit prepared for these proceedings, the applicant spoke of the dysfunctional nature of his second marriage and the fact that he and his second wife would drink and take illicit drugs together. He denied ever having taken illicit drugs around their children and confirmed that he had not used illicit drugs for over ten years.

45. He stated that:

I later discovered that during our periods of separation [my second wife] had contacted the police and made false allegations against me of assault, harassment, intimidation etc. I did not know about many of these allegations at the time and only found out about many of them either during the family law proceedings or as a consequence of the documentation obtained by the Children’s Guardian.

46. The applicant denies ever having hit his second wife:

I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional. However, [she] was always the aggressor. Throughout our relationship [she] was violent, controlling, aggressive and erratic…I have never punched her as she has claimed. My actions were always done in self-defence in response to [her] violence with the least amount of physical force possible…I cannot say what [her] motivations were for fabricating these allegations of violence against me other than that during and immediately after arguments she would be in a blind rage, after I left she contacted the police and made these allegations against me. [Her] behaviour was often erratic and irrational. Also, after separation we were involved in highly contentious child custody proceedings and she was seeking the full time custody of all three of our children.

47. In oral evidence before the Tribunal the applicant reiterated his statement that he had not hit his second wife but would simply defend himself when getting hit. No material was provided to dispute the applicant’s evidence in this regard.

48. The applicant gave evidence that he is now single having separated from his partner of three years, who he described her as a quiet, gentle woman who brought out the best in him. He denied any violence in the relationship.

49. On the evidence before us, we accept the applicant’s admission that he slapped his first wife. We also accept that the applicant’s second marriage was volatile. The allegations that the applicant was physically violent towards his second wife are serious ones. In light of the applicant’s evidence denying the allegations and the absence of evidence from the applicant’s second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her.

Apprehended Violence Orders

50. A final apprehended violence order (AVO) was issued against the applicant in 1995. In his statement, the applicant clarified that the AVO had been made for the protection of his first wife, by consent and without admissions, following allegations by his first wife that the applicant had made threats against her and her then partner. The applicant explained that he had been concerned that the partner had been sexually assaulting his daughters and that ‘the 1995 AVO arose in circumstances where I was trying to protect my children from harm.’

51. Given that the AVO was made by consent and without admissions and that we have been unable to test the veracity of the complainant’s version, we cannot make any positive findings about the alleged conduct of the applicant.

52. In 2000, an interim apprehended violence order was issued against the applicant for the protection of the applicant’s second wife but, according to the applicant’s statement, did not proceed to a full order. According to court papers before the Tribunal, however, an AVO was issued against the applicant on 22 June 2000 for a period of twelve months.

53. Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant.

54. Several COPS events records dating between 1999 and 2001 relate alleged incidents of violent behaviour by the applicant towards his second wife.

55. On the evidence before us, we are satisfied that from the mid 1990s to 2001, the applicant’s relationships were dysfunctional and marred by allegations of violence. We accept the applicant’s evidence that he has slapped his first wife. Later in this decision, we give consideration to allegations of violence within the applicant’s second marriage in the context of a case summary report prepared by the Independent Children’s Lawyer appointed by the Family Court during custody proceedings for the applicant and his second wife.

Family and Community Services material

56. Before the Tribunal are notifications to Family and Community Services (FACS) in relation to the applicant, which include apparent notifications from the applicant’s first wife. Notes from FACS caseworkers cast doubt on the reliability of the accounts by the applicant’s first wife and her ability to care for the children. For this reason, and in the absence of evidence by the applicant’s first wife, we give little weight to the notifications.

57. Later notifications were made by the applicant’s second wife in the course of acrimonious family law custody proceedings, which resulted in the applicant being favourably assessed and subsequently being given the primary care of his elder sons. For these reasons and in light both of the applicant’s denial of the allegations and the absence of evidence from the applicant’s second wife, we give little weight to the notifications.

Family law documents

58. On 9 November 2006, orders were made in the Family Court that the applicant’s two elder sons live with the applicant and have weekend and holiday contact with their mother. Orders were made for the youngest son to live with his mother and to have weekend and holiday contact with the applicant.

59. A 2006 expert (Chapter 15) report prepared for the Family Court by the psychiatrist, Associate Professor Quadrio, found that the three boys were ‘more strongly attached to their father than to their mother.’ Associate Professor Quadrio found that the youngest child, despite living with his mother, showed very little evidence of attachment to her. This gave Associate Professor Quadrio ‘cause for considerable concern about the quality of her parenting.’

60. Associate Professor Quadrio also found that the mother impressed ‘as a disorganised, traumatised personality, much preoccupied with her own trauma and it [is] likely that she has difficulty focusing on the needs of her children.’

61. By contrast, Associate Professor Quadrio made the following observations in relation to the to applicant:

The father’s commitment to the children appears to be quite unreserved… [He] presents as very child-focussed, he has considerable warmth and affection and relates to the children with lots of physical affection… He has led a very traumatised and traumatising life himself and has had a grossly abnormal upbringing and it was a considerable challenge for him to overcome those difficulties and provide a stable and appropriate environment for his children, yet it appears that he has been able to do so. He is strongly committed and motivated and the impression is that with assistance and guidance he can continue to provide reasonably well for the children…The father appears to have the best interests of the children at heart and seems capable of protecting them from harm.

62. She recommended that ‘provided that the court determines that the father’s commitment to the children and his personal rehabilitation is sincere and that the commitment he expresses is genuine then I would recommend primary residence of all three children with the father.’ It was her view that ‘the three children would benefit from remaining together and that the father appears to provide far more stability than is true of the mother.’

63. Given the expertise of Dr Quadrio and the comprehensive nature of the report, we give weight to it in our assessment of the applicant.

64. An affidavit by the applicant’s sister-in-law sworn in 2006 is before us. In it, she describes the applicant as overbearing, manipulative and argumentative and states that the applicant’s second wife told her that the applicant had been hitting her. It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant’s sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it.

65. An affidavit from the former partner of the applicant sworn in 2004 is before us. In it, she describes threatening behaviour by the applicant in 2002 and 2003 in relation to his contact with the children. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it.

66. In two affidavits sworn in 2004, the applicant replies to allegations in relation to his treatment of his second wife and other family members and describes living arrangements and the general circumstances of their three sons and the applicant’s step-children. We have given some weight to this affidavit given that the applicant was subject to cross-examination in these proceedings about those issues raised in the affidavit.

67. In an affidavit sworn in 2005, the applicant describes his relationship with his second wife and their children. We have given some weight to this affidavit given that the applicant was subject to cross-examination in these proceedings about those issues raised in the affidavit.

68. In two lengthy affidavits sworn in 2006, the applicant denies the allegations of violence and intimidation made by his second wife and by his sister-in-law. We have given some weight to this affidavit given that the applicant was subject to cross-examination in these proceedings about those issues raised in the affidavit.

69. In the first affidavit, he recounts the conversation he had with his brother who asked him whether he had hit his second wife. In reply, the applicant had said ‘Yes..when she hits or spits on me I slap her, would it be any different if [your wife] hit you or spat in your face, what would you do, would you hit her?’

70. The applicant then wrote ‘I am no longer in an abusive relationship and I am not now the person I was when I was in a relationship with [my first wife].’

71. In an affidavit sworn by the applicant’s sister in 2004, she states that she has real concerns about the applicant’s children residing with him. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The content of the affidavit was disputed by the applicant. The applicant’s sister was not cross-examined on the affidavit during the family law proceedings and did not give evidence before us in these proceedings. For these reasons, we give limited weight to its contents.

72. In an affidavit sworn by the applicant’s brother in 2004, he states his belief that the applicant had violent tendencies and wrote that the applicant had sexually assaulted him when they were children. The brother’s allegations are disputed by the applicant who gave evidence that the sexual contact he had with his brother when they were both children - the brother is two years younger than the applicant - was sexual exploration in the context of a dysfunctional upbringing. The applicant’s brother was not cross-examined on the affidavit at the time of the family law proceedings and did not give evidence before us in these proceedings. For these reasons, we cannot make a positive finding in relation to the allegations raised. We give consideration to the brother’s allegations later in this decision in the context of the risk assessment reports prepared for the applicant.

73. The case summary by the Independent Children’s Lawyer filed on 2 November 2006 notes that the applicant’s three sons had a good relationship with their father while their relationship with their mother was problematic. In relation to family violence, the Independent Children’s Lawyer stated that:

This is a major issue in the proceedings. All children demonstrate behaviour consistent with being exposed to family violence, both between the parties and in the parents’ household. Both parties admit to violence towards the other, in their lives together, to which the children were exposed.

74. We give some weight to this case summary as an expert opinion in relation to the situation of the applicant’s sons in 2006. On the evidence before us, we accept that the children witnessed violence between their parents.

75. In her affidavit sworn in 2004, the applicant’s daughter describes an acrimonious relationship with her father. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant gave evidence to the Tribunal in relation to his earlier relationship with his daughter. Taking into consideration the applicant’s evidence and the affidavit by the daughter, we accept that the relationship had been at times acrimonious but do not accept that the applicant was violent towards his daughter.

76. In her affidavit sworn in 2006, the applicant’s first wife describes his violence towards her. In oral evidence to the Tribunal, the applicant admits having slapped his first wife. Considering his evidence together with the affidavit of his first wife, we accept that the applicant had been physically violent towards his first wife by slapping her.

77. In her affidavit sworn in 2006, the applicant’s second wife describes her relationship with the applicant and his treatment of their children. In oral evidence to this Tribunal, the applicant disputed the contents of the affidavit which, it is agreed, was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife, who was not cross-examined on the contents of the affidavit either during the earlier proceedings or before this Tribunal. On the evidence before it, the Tribunal accepts that the relationship between the applicant and his second wife was marked by some physical violence.

78. In an affidavit sworn in 2005, a relative of the applicant’s second wife describes the applicant’s intimidatory behaviour. The contents of the affidavit were contested by the applicant who gave oral evidence before this Tribunal. It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife and that the relative was never cross-examined on its contents during the earlier proceedings. In light of the applicant’s evidence before the Tribunal disputing the material, and in the absence of further material from the relative, we give limited weight to the affidavit.

2005 incident with daughter

79. A 2005 COPS Events record states that the applicant’s daughter accused him of grabbing her and ‘shoving her down the stairs.’ The applicant’s daughter did not want any action taken against her father and ‘just wished police attend the address and remove her items which was done without incident.’

80. According to the applicant’s evidence, his then 16-year-old daughter had been staying with him for a couple of weeks. He found her behaviour rude and her language unacceptable. When she started to strike the applicant in the chest after he had refused to let her take her younger brothers to the movies (because he didn’t think she was responsible enough to do so), he grabbed her wrists to stop her hitting him, turned her away from him, and moved her towards the stairs, telling her she had to leave. It had been his intention to give her some time out rather than have her leave the house altogether. He denied pushing her down the stairs. In his oral evidence, he agreed that he could have handled the situation better by talking through his concerns with her. He has since taken classes to learn how to discipline his children appropriately including by giving them appropriate boundaries.

81. We have given some weight to the applicant’s oral and written evidence in relation to this incident. Given that the applicant’s daughter did not make a statement in relation to the incident and that the applicant disputes the version of events set out in the COPS event record, we give limited weight to it.

2008 report of son running away

82. The evidence before the Tribunal is that the applicant’s eldest son has had behavioural and mental health issues. A FACS report is before the Tribunal stating that the applicant’s eldest son had contacted police as he was ‘scared of his father who was yelling at him about being trouble at school.’ When police attended the son said that he did not have any fears for his safety and was happy to stay with his father. On the evidence before us, and given the contradictory aspects of the report, we give it little weight.

Narrative

83. Before the Tribunal is a narrative of the applicant’s early life published in 1998 by the applicant with the assistance of another writer. Whilst based on his life, the narrative was designed for a commercial audience and is written in a salacious manner. Given its age and the circumstances of its production, we have found it of limited probative value. Of greater probative value are the expert opinions prepared for the applicant, as detailed below, which are both consistent and comprehensive.

Applicant and relationship with siblings

84. Notifications were made to FACS in 2004 that as a child, the applicant had sexual relations with his younger brother and that he inappropriately touched his older sister. These allegations are also contained in affidavits prepared in relation to the Family Court dispute between the applicant and his older sister.

85. In oral evidence before the Tribunal, the applicant described the sexual contact with his brother and the inappropriate touching of his sister as being a result of their damaging upbringing and exposure to pornography. He told the Tribunal that he feels terrible about it.

86. For the following reasons, we give little weight to these allegations in assessing whether the applicant poses a current risk to the safety of children:

• The allegations are considered in the reports by the psychiatrists Dr Jones and Dr Allnutt (details of which are provided below), who both conclude that, given the dysfunctional upbringing of the applicant, the sexual contact between the siblings was historical and does not increase the applicant’s risk to children;

• The applicant’s siblings were never examined on the contents of the affidavits and did not give evidence at these proceedings to enable the Tribunal to explore the nature of the allegations;

• Despite the allegations being made in Family Court proceedings, the applicant was given primary care of his two elder sons.

87. In oral evidence to the Tribunal, the applicant stated that he had a good relationship with his siblings and had given stem cells to assist his brother who is suffering from cancer. He also stated that he is in contact with his stepmother. Nothing was put forward to us to dispute the applicant’s evidence in this regard.

References for CXZ

Applicant’s general practitioner

88. The applicant’s general medical practitioner provided a reference for the applicant in which he confirmed that the applicant has been his patient for over ten years and that he has found him to be ‘a caring and loving person and father’, that he has ‘never seen any abuse of his children’ and sees ‘no problem with him working and caring for children.’ The applicant’s medical practitioner was not required for cross-examination by the Children’s Guardian.

Applicant’s legal practitioner

89. The applicant’s legal practitioner provided a reference for the applicant’s initial application for a working with children check clearance in which he listed his period of professional contact as 15 years and stated that the applicant has demonstrated a great deal of personal growth and maturity and that he ‘conducts himself in a respectful and honourable manner in the most trying of circumstances demonstrating incredible restraint that most people could not achieve. He described the applicant as always ‘conducting himself appropriately in the presence of children and presents an excellent role model’ and states that he would allow his own children to have direct contact with the applicant without supervision.

90. Given that the legal practitioner acted for the applicant (on a pro bono basis) in these proceedings, we have given limited weight to his reference.

Professional and personal references

91. Further professional references are contained on file attesting to the applicant’s good character.

Psychiatric reports

92. An initial and supplementary risk assessment report was prepared for these proceedings by Dr Matthew Jones, a psychiatrist engaged by the applicant. An initial and supplementary risk assessment report was also prepared by Dr Stephen Allnutt, the psychiatrist engaged by the Children’s Guardian in this matter. The expertise of Dr Jones and Dr Allnutt has not been disputed and we have given weight to each of their reports, details of which are provided below.

Dr Jones

93. In a report requested by the applicant to be prepared for these proceedings, the psychiatrist, Dr Jones, found that the applicant does not pose a real and appreciable risk to the safety of children.

94. In relation to the applicant’s acquittal, some 20 years ago, on a charge of murder, Dr Jones found that ‘the factors relevant then are not relevant now in that [CXZ’s] father died 20 years ago and by then he had well and truly broken the bond and influence of that relationship. Although the circumstances…were extraordinary, including that it was CXZ’s first brush with the law, what is relevant is that the offence occurred thirty years ago.’

95. Dr Jones noted that the applicant conceded a history of domestic violence with his second wife and that there was ‘bilateral physicality’ but that he had never been charged with any violent offences related to domestic violence despite there having being a number of apprehended violence orders in place over the course of the relationship. He also noted that ‘there are no offences directed towards children, nor are there offences of a sexual nature towards adults or towards children.’

96. In finding that the applicant does not pose a real and appreciable risk to the safety of children, Dr Jones made the following observations:

[CXZ] is currently psychiatrically well and has good insight into his history and came across as an open and forthcoming historian. He currently has no specific treatment needs and is at no increased risk of relapse with respect to any drug or alcohol behaviour and is at the low risk of relapse with respect to any criminal behaviour. He is currently living a productive and meaningful existence and, despite criminality in his distant past, came across as a pro-social individual.

From a forensic psychiatric perspective, there is no evidence to suggest any increased risk specific to children for my violence, abuse, Neglect or sexual perspective. Even given his history of criminal behaviour and drug and alcohol use, which would normally indicate a general increase of recidivism, he would still likely be considered low risk due to positive factors both in the history and in an ongoing sense.

97. Dr Jones found the applicant to be a caring and loving single father who was actively involved in his children’s development and the development of other children. Dr Jones highlighted the following protective factors for the applicant:

• stable and consistent employment history and current circumstances;

• lack of mental health problems;

• absence of any drug or alcohol issues;

• stable close relationships which are active and engaging.

98. Dr Jones was asked to provide a supplementary report to consider allegations that, as a child, the applicant had engaged in unhealthy sexual practices with a sibling Dr Jones found that:

although the snippets of information indicated that unhealthy and possibly illegal sexual behaviour was going on in and around his childhood, in my opinion these events occurred in the context of an otherwise maladaptive and abusive childhood, and do not, in and of themselves, contribute to any elevation in his current level of risk. I am aware of no objective evidence of any sexual deviancy or sexual criminality throughout his life and, with the added information made available to me, my previous opinion remains on changed.

99. In oral evidence before the Tribunal, Dr Jones reiterated his view that, despite the additional information provided to him and in the absence of any further witness testimony in relation to allegations made against the applicant, his initial opinion remained unchanged. He told the Tribunal that in an assessment of the applicant’s risk to the safety of children, he would give little weight to the altercation that had occurred in 2009 at the fast-food outlet (as detailed above) which was not a fresh occurrence but which had occurred eight years ago and so placed it in an historical rather than current context.

Dr Allnutt

100. The Children’s Guardian requested the psychiatrist, Dr Stephen Allnutt, to prepare a risk assessment report for the applicant. The applicant agreed to this. In preparing his report, Dr Allnutt was provided with documentation by the Children’s Guardian, including Dr Jones’ report for the applicant. On the evidence before him, Dr Allnutt found the applicant to pose a low risk to the safety of children.

101. Dr Allnutt stated that the applicant presented as cooperative and well groomed and that he had capacity for insight and judgment. He did not form the opinion that the applicant manifests a psychiatric condition. He agreed that the applicant’s automatism was caused by an external factor, namely his father who is now dead, and that there has been no recurrence of it in almost 30 years. Dr Allnutt noted that he was ‘unaware of any other significant evidence of a recurrence of the situation where his will was overborne by external influence since the trigger incident.’

102. In assessing whether the applicant poses a real and appreciable risk to the safety of children, Dr Allnutt made the following observations:

The applicant has never been charged with sexual offence against an adult or child (person under 18 years of age). There is report of sexual behaviour with his siblings when he was around aged 11, however this behaviour occurred with his brother who was less than five years younger than him and his sister who was older than him. Given his age in the age differential between his brother and sister and he, I would regard this as sexual experimentation. On this basis, it would be inappropriate to utilise a risk assessment tool for sexual recidivism.

103. In reaching his conclusion that the applicant is a low risk to the safety of children, Dr Allnutt made the following findings:

He has a moderate loading of historical risk factors associated with general aggression. He has however a number of protective factors that ameliorate his risk profile. In addition, consideration needs to be given to the absence of aggressive behaviour towards others over a number of years (outside of those related to his work), as the principle is that an absence of aggressive behaviour over time at risk, is associated with the reduction of risk for aggression in the future (this is probably also associated with his age, as there is a relationship between a reduction in risk profile and ageing, in addition to his discontinuation of substances and probable adoption of a more pro-social lifestyle by the applicant). The aggressive behaviour, involving children relates to his own children, in a domestic context, remains ambiguous. However there has been no complaint of aggression towards children since 2005. If it is determined that has previously engaged in domestic violence behaviour with prior partners, then there is concern about a child’s exposure to domestic violence (as a witness), if he became involved with a woman who has children under 18, and if domestic violence emerged. There is no evidence of the domestic violence in his last relationship and the last recorded episode was about 9 years ago. There are many ambiguities regarding the evidence – at this stage I would regard his current risk profile as pertains to children as being in the low range.

104. In a supplementary report, Dr Allnutt noted the applicant’s history of allegations for violent behaviour and did not change the opinion set out in his earlier report, noting that the case was one relying on the factual findings of the Tribunal itself.

105. In oral evidence before the Tribunal, Dr Allnutt was questioned about the sexual activity between with the applicant’s siblings. He noted that as the activity occurred when the applicant was still developing his sexuality and that no charged or complaints or convictions resulted, he could ‘only remain silent on this’ and that in the absence of further complaint, it would not be appropriate for him to pursue the matter.

106. In relation to the allegations of domestic violence against the applicant, Dr Allnutt noted that there have been no complaints for the past nine years and that his risk decreases as he ages. He expressed the view that the applicant’s experience of raising his younger children as a single factor would work in his favour. This is because raising children alone places stress on a parent and requires the potential for restraint. An absence of complaints in these circumstances would suggest conformity. He noted that the longer people go without incident, the lower their risk becomes.

107. It is Dr Allnutt’s view that the applicant has gained insight into the unlawful killing and has demonstrated both remorse and contrition. In relation to the applicant’s training and sporting environment, the absence of incident shows that the applicant is able to conform to the expected behaviour. He also noted that the applicant had been working as a security guard for twenty-eight years and advised that a risk assessment would consider the number of complaints made within this time in an industry known for its volatile environment.

The Applicant’s evidence in these proceedings

108. The Act imposes a duty on the applicant to disclose all relevant matters: s 27(4) of the Act. The applicant gave oral evidence to the Tribunal about which he was cross-examined at some length. In considering the totality of his evidence, we found the applicant to be a truthful and reliable witness.

109. We accept that the applicant was fined for the offences of theft and assault police that occurred in 1995. On the evidence before us and in light of the applicant’s oral evidence to the Tribunal, we are not satisfied that the applicant deliberately concealed this conviction. For this reason, we do not find him in breach of the provisions of s 27(4) of the Act.

Matters to be taken into consideration – section 30(1)

110. In determining this application, the Tribunal "must consider" those factors set out in s 30 (1) of the Child Protection (Working with Children) 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 (s 30 (1)(a))

111. The trigger for the risk assessment was the fact that the applicant had been charged with murder in 1996. This, according to counsel for the Children’s Guardian, was pursuant to schedule 1.1(1)(b) of the Act which sets out the following assessment requirement trigger: namely that proceedings have been commenced against a person for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

112. Clause 1 of schedule 2, as it now stands, specifies murder as such an offence.

113. On 1 October 2014, however, when the applicant applied for a working with children clear clearance, clause 1 of schedule 2 of the Act specified only murder of a child as a disqualifying offence rather than murder generally. As the law to be applied is the law at the time of the application for a working with children check clearance, the respondent is in error in identifying the applicant’s charge of murder as the offence triggering a risk assessment under the Act. We note, however, that the Children’s Guardian also has a general discretion to conduct a risk assessment under s 15(3) of the Act.

114. We accept that the charge of murder, for which the applicant stood trial and was subsequently acquitted, was very serious.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b)

115. Over thirty years have passed since the homicide occurred and it has been twenty years since the applicant was acquitted of the charge of murder in 1997.

116. Since this time, he has had no criminal convictions. In 2000, an AVO was made against him. In the absence both of details of the granting of the AVO and any evidence from the complainant, we do not give it any weight in determining whether the applicant currently poses a risk to children.

117. In the course of acrimonious family law proceedings, charges of intimidation and assault that had been laid against the applicant in relation to the applicant’s second wife were either dismissed or withdrawn. In the absence of evidence from the complainant, we are unable to make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.

118. A wealth of documentation from the 2002 and 2003 Family Law proceedings is before us, including statements alleging violence by the applicant, details of which are set out above. On the evidence before us, it would appear that the statements were not subject to cross-examination before the Family Court nor did the makers of the statements give evidence before this Tribunal. Given the serious nature of this matter, we are not satisfied, on the evidence before us, that we can make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.

119. We accept the applicant’s evidence that he had slapped his first wife. On the basis of the case summary report prepared by the Independent Children’s Lawyer in the applicant’s family law proceedings, we accept that his sons witnessed violence between their parents. On the evidence before us, we accept that have been no further allegations of violence between the applicant and his second wife and that the applicant is seen to be a loving and caring father.

120. In the course of these Family Law proceedings, allegations were made that, as a child, the applicant sexually assaulted his brother, who is two years his junior, and inappropriately touched his sister, who is a year older than him. On the evidence before us, we accept that sexual contact took place between the applicant and his brother when they were both children and that the applicant inappropriately touched his older sister, again when they were both children. As set out above, given the historical nature of the incidents and in light of the opinions of Dr Jones and Dr Allnutt that the incidents do not increase the applicant’s current to children, we give them little weight in assessing the applicant’s current risk to the safety of children.

121. There have been a series of notifications to FACS/DOCS since the applicant’s acquittal in 1997, many of which appear to have been made by the applicant’s first wife, whose reliability was questioned by caseworkers, and by the applicant’s second wife, in the context of acrimonious family law proceedings that resulted in the applicant being given the primary care of his elder sons. As set out above, in the absence of corroborating material, we are unable to make any positive findings in relation to these notifications.

122. There are COPS event records for the applicant in relation to a dispute with his daughter in 2005 and a dispute with his son in 2008. Having assessed the evidence before us, as set out above, we give it little weight in an assessment of the applicant’s current risk to children.

123. In 2009, the applicant was acquitted of a charge of assault. Whilst we accept that the applicant showed a lack of judgement during the incident, for the reasons set out above, we give little weight to it in assessing whether the applicant poses a current risk to the safety of children.

124. We have noted the applicant’s long working history as a security officer and given the lack of evidence before us, we are unable to make any positive findings in relation to the small number of COPS events involving incidents at venues where the applicant had been working as a security officer. It is not contested that during the applicant’s long working history as a security officer, he has not been subject to any disciplinary proceedings.

The age of the person at the time the matters occurred (s 30(1)(c))

125. The applicant was 26 years old at the time.

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 (s 30(1)(d))

126. The victim was a 39-year-old adult in a relationship with the applicant’s stepmother.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s 30(1)(e))

127. The victim was 13 years older than the applicant.

Whether the person knew, or could reasonably have known that the victim was a child (s 30(1)(f))

128. The victim was not a child.

The person's present age (s 30(1)(g))

129. The applicant is currently 55 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s 30(1)(h))

130. In 1990, the applicant was found guilty of stealing. No conviction was recorded.

131. In 1995, the applicant pleaded guilty to assault police, attempt theft of motor car and cause injury, for which he was fined.

132. In 1996, the applicant was found guilty of obtaining a social security benefit that was only part payable. No conviction was recorded for the offence.

133. Since 1996, the applicant has worked as a security officer. Since 2002, he has had full-time care of his elder sons. Since 2015, he has also had the full-time care of his youngest son.

134. Consideration of any notifications and police reports made against the applicant since 1996 have been considered above.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

135. The Children’s Guardian submits that the circumstances of the killing demonstrate a psychological vulnerability in the applicant, making him susceptible to coercion from people he is fearful of and showing a lack of resilience to defend his own convictions. This, however, is not supported by the findings in the risk assessment reports prepared by Dr Jones and Dr Allnutt.

136. In relation to the homicide, Dr Jones found that the factors relevant then are not relevant now given that the influencing figure, namely the applicant’s father, has been dead for 20 years.

137. Dr Allnutt also agreed that the applicant’s automatism was caused by an external figure, namely his father who is now dead, that there has been no recurrence of it in almost 30 years and that there was no significant evidence of a recurrence of the situation where his will was overborne by external influence since then. In light of these findings, we do not accept the respondent’s submission that the factors which diminished the applicant’s responsibility for the homicide thirty years ago elevate his current risk of harm to children.

138. It is the view of both Dr Jones and Dr Allnutt that the applicant poses a low risk to the safety of children.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

139. The applicant has given evidence that he has been a single father for the past fifteen years, initially with the full-time care of his two elder sons and now also with the full-time care of his youngest son.

140. A reference from his doctor, who was not required for cross-examination, describes the applicant as a caring and loving father and states that he sees ‘no problem with him working and caring for children.’

141. The applicant also submits that over the past 30 years, he has successfully rehabilitated himself during which time he has had a long working history as a security officer and has successfully parented his children.

Any other matters that the Children's Guardian considers necessary (s 30(1)(k))

142. The Children’s Guardian has not put forward any other matters for the Tribunal to consider.

Conclusion on section 30(1) matters

143. For the following reasons, we are of the view that the applicant does not pose a real and appreciable risk to children.

144. We accept that the applicant was subjected to abuse from his father during his childhood and early adulthood. We accept that, in the context of this relationship, as an eleven-year-old boy, the applicant inappropriately touched his twelve-year-old sister. We also accept that he and his younger brother (who is two years younger than him) engaged in sexual activity as children. In the absence of oral evidence from the applicant’s brother, we accept the findings of Dr Allnutt and Dr Jones that, on the evidence, this amounted to sexual experimentation in the context of a dysfunctional upbringing rather than being indicative of abuse by the applicant.

145. We also accept that during the 1990s, the applicant was charged with an offence of social security fraud and an offence of stealing. No conviction was recorded for either charge. Given the nature of each charge, the time that has now elapsed and the fact that no conviction was recorded for either matter, we find these matters to be of no relevance to an assessment of whether the applicant currently poses a risk to the safety of children. For this reason, we give no weight to them.

146. In 1997, the applicant was acquitted of the murder of his stepmother’s partner on the basis that he was acting as an automaton. The facts and circumstances of the killing are confronting and difficult. We give weight, however, to the opinion of both the psychiatrist engaged by the applicant, Dr Jones, and that of the psychiatrist appointed by the Children’s Guardian, Dr Allnutt, that the killing occurred as a result of the applicant’s father’s abusive control over him and, given that his father is now dead, would not reoccur. That the two psychiatrists concur in this opinion gives us further confidence in their individual assessments. On this basis, we find that, despite the awful circumstances of the killing, it is of little relevance to a consideration of whether the applicant currently poses a risk to the safety of children.

147. We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant’s children witnessed violence between their parents and accept this this would have been detrimental to them.

148. On the evidence before us, we are satisfied, however, that the domestic violence between the applicant and his second wife is no longer ongoing. We give weight to the Family Court orders in 2006 giving primary care of his two elder sons to the applicant and note the requirement of the Court to consider the best interests of the children in the making of orders. We also give weight to the findings of Dr Quadrio in her report to the Family Court in which she found the applicant to be a caring and involved parent to his sons.

149. We are not satisfied that the applicant’s behaviour towards his daughter in 2006 was physically violent. In the absence of oral evidence by the applicant’s daughter, we accept the applicant’s evidence that he had marched her down the stairs in response to her behaviour. We accept the applicant’s evidence that he would now manage the situation differently and would not have told his daughter to leave the house in response to her behaviour.

150. We have given some weight to the altercation that occurred at the fast food outlet in 2009. We find the applicant’s behaviour to have been ill-considered and note his evidence to us that he should never have got out of his car. We accept the findings of the magistrate that the applicant acted in self-defence.

143. We note that the applicant has worked as a security guard for 28 years in volatile and often violent locations and give weight to the fact that, on the evidence, the applicant has never been charged for an offence during his employment. We also give weight to the evidence before us, undisputed by the Children’s Guardian, that the applicant has held his current security licence for a decade. We note that it is a prerequisite of the grant of a security licence that an applicant be a fit and proper person and that it would be in the public interest for the applicant to hold such a licence. (see s 15(1) and s 15(3) of the Security Industry Act 1997)

144. Although much of the evidence before us deals with events that took place up to thirty years ago, our task is to assess whether the applicant currently poses a real and appreciable risk to children.

145. In determining that the applicant does not currently pose a real and appreciable risk to children we have given particular weight to:

• the findings of the psychiatrists Dr Allnutt, engaged by the Children’s Guardian, and Dr Jones, engaged by the applicant, each of whom determined the applicant to be a low risk – rather than a real and appreciable risk - to the safety of children;

• the evidence before us that in 2006 the Family Court placed the applicant’s two older sons in the applicant’s care where they remain;

• the evidence before us that the applicant is an attentive and caring father who has been the primary carer of his elder sons since 2002 and that of his youngest son since 2015;

• the fact that, for the past decade, there have been no DOCS or FACS reports in relation to the applicant or his children.

154. For the reasons set out in this decision, we are satisfied that the applicant does not pose a real and appreciable risk to children.

Orders

1. The decision of the respondent dated 2 December 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.

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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: 14 February 2018