Cya v Children's Guardian

[2017] NSWCATAD 230

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CYA v Children’s Guardian [2017] NSWCATAD 230
Hearing dates:	26 May 2017
Date of orders:	20 July 2017
Decision date:	20 July 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant Senior Member Professor P Foreman General Member
Decision:	The Tribunal affirms the respondent’s decision to refuse to grant the applicant a Working with Children Check Clearance
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with assaulting child – charges withdrawn by police – numerous COPS events and FACS notifications regarding safety of children in applicant’s care – whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Mental Health Act 2007
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949. R v Commission for Children and Young People [2002] NSWlRComm 101 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CYA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: E Windsor (Respondent)   Self- represented (Applicant)
File Number(s):	2017/00007235
Publication restriction:	Pursuant to Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 an order is made that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcast without the leave of the tribunal.

reasons for Decision

1. This is a review of a decision under the Child Protection (Working with Children) Act 2012 (the Act), to cancel the applicant’s working with children clearance check (WWCCC). The applicant works in childcare. On 28 June 2013, the Children’s Guardian granted the applicant a WWCCC. In 2014 the applicant was charged with assaulting her 3 year old child. In 2015 she was again charged with assaulting the same child. The charges occurred during an argument with her partner and other family members but were later withdrawn by police and did not proceed. The Guardian made further enquiries to police and the Department of Family and Community Services (FACS) and discovered previous incidents of family violence in which the applicant was both the victim and the perpetrator. On 15 December 2016, the Guardian decided to cancel the applicant’s WWCCC on the basis that she posed a risk to the safety of children. The Tribunal has considered all the relevant information and material and agrees the applicant does pose a risk to the safety of children and affirms the decision to cancel her WWCCC.

2. The applicant will be referred to as ‘CYA’ in this decision. She is 30 years old and mother of two children aged 6 and 2 years. CYA has worked in childcare for the previous 8 years and requires a WWCCC to continue to work in this industry.

Documents filed by Applicant

1. Statement of applicant attaching personal references, Federal Circuit Court Consent Orders dated 14 February 2013, and AVO final orders 10 December 2015 and copy of social media message from friend, Vanessa.

2. Report of Psychological Evaluation by Clinical and Forensic Psychologist, Istvan Schreiner dated 1 April 2017.

3. Statement of the Applicant's brother dated 10 April 2017.

4. Statement of Sarah Singh dated 6 April 2017.

5. Written outline of submissions filed 19 May 2017.

Documents filed by the Respondent

1. Section 58 documents including police brief and ERISP for 2014 and 2015 criminal charges, police record of events involving applicant, NSW health records and FACS records and notifications.

2. Further documents including letters, emails and records of discussions with previous employers of the applicant.

3. Written outline of submissions filed 24 May 2017.

Details of the trigger offences

Incident on 26 May 2015

3. On 26 May 2015 CYA was charged by police with assaulting her then 4 year old child. The child will be referred to as ‘RK’ in these reasons. She was also charged with assaulting her partner. The police alleged there was an argument at CYA’s home where she lived with her partner and two children. The argument was about money and during the argument, either CYA or her partner asked RK who he thought was the honest party. The police alleged CYA then slapped RK with her right hand to the left side of the child’s face making a loud slapping sound. The child immediately started to scream and cry at which point, CYA told him to get into bed and go to sleep. The child complied and got into bed but moved to the other side of the bed, away from CYA, before pulling the covers over himself.

4. CYA’s partner claimed to have witnessed the assault of RK and began filming CYA with his phone. CYA became aggressive and made threatening gestures towards him. She screamed at him and assaulted him by kicking his left leg. She also struck him with an open hand to the left side of his face.

5. The partner called the police and requested they urgently attend the home. CYA then said to the partner in front of RK, “I’m going to kill you”. Holding up a knife she said, “I’m going to chop you up”. She is then alleged to have said to RK, “Don’t tell the police I hit you, I slap you. If you did, watch what’s going to happen to you”. The partner tried to film this conversation but CYA took RK into the bedroom and closed the door.

6. The police attended the home and spoke to the child, RK on his own. RK told police that CYA had slapped him, saying, “Mummy slapped me like this”. The police then watched the mobile phone recording taken by CYA’s partner and charged CYA with various offences including assaulting RK and assaulting her partner.

7. At court the police decided to withdraw the assault against RK and CYA pleaded guilty to assaulting her partner. The police advised the respondent the charge of assaulting RK were withdrawn because the partner, who had witnessed the assault, became increasingly unwilling to testify against CYA. The partner explained to police that CYA was making it difficult for him to see his child. The partner then later changed his evidence from his earlier statement to police, stating he did not actually see CYA assault RK. The charge against CYA of assaulting her partner then proceeded as there was ‘clear video footage of it happening’. CYA pleaded guilty and was sentenced to a section 9 bond which was subsequently overturned on appeal before the District Court and changed to a s10 bond without conviction.

8. During the hearing before this Tribunal, the mobile phone recording taken by the partner was shown. The recording runs for two minutes and shows CYA standing in front of a double bed with a young child lying on the far side of the double bed with blankets pulled up to his shoulder. During the entirety of the footage, CYA is loudly yelling expletives at her partner who is holding the camera. She calls him a ‘bitch’ and other offending names in English and her own cultural language. During the recording, CYA appears aggressive and threatening towards her partner. She appears to lash out with her hand towards the partner on a few occasions. The recording stops after two minutes. During the recording, the child is downcast but occasionally looks up at CYA. The child appears to look scared and nervous throughout the recording.

9. During cross-examination about the recording, CYA agreed the recording showed her having an argument with her partner. She denied assaulting him despite her pleading guilty to assault in Court. She did not agree the child looked scared or frightened during the incident as seen in the recording. She believed he looked ‘sad’. She also agreed the incident shown in the recording was one of a number of family violence incidents that RK had witnessed between herself and her partner. She stated during cross-examination that, in her view, RK was in no way impacted by witnessing these incidents apart from making him feel sad at these times.

Incident on 30 November 2014

10. On 30 November 2014, CYA was living with her mother, her brother and her son, RK in the same home. There was also an Apprehended Violence Order (AVO) in place protecting the mother against CYA. On this day, the police alleged that CYA had an argument with the mother demanding a lift to the shops. During the argument CYA broke numerous household items belonging to the mother. During the argument, she kicked her son, RK in the chest with enough force to cause him to fall backwards and strike his head on a concrete wall. RK was 3 years old at the time. The brother, who was present at the time, called the police and RK was taken to the hospital. He was treated for lower back pain and some tenderness over the crown of his head. He was required to stay overnight in the hospital for observation.

11. The police attended the home and took statements. The mother told police she observed CYA kick RK into a wall out the front of the house. The brother told police he saw his sister lift her left foot up and then saw RK hit the wall. It appeared to him that CYA had kicked RK. RK was sitting on the ground and crying and the brother told RK to come inside the house. He then locked the house, so CYA could not return and called the police. RK also told police, “Mummy kicked me into the wall and it hurt”.

12. CYA denied the charge of assaulting RK. She told police that the charges were fabricated and her brother and mother were lying.

13. The police withdrew the assault charge against RK as the mother and brother did not want to attend Court. CYA pleaded guilty to a breach of AVO and received a section 10 bond for 12 months.

14. In her statements and evidence before the Tribunal, CYA denied the allegation of kicking her son on 30 November 2014. Her brother also provided a statement to the Tribunal stating he did not see CYA kick RK and the police were mistaken. He was cross-examined during the hearing by telephone. However, his evidence was cut short as he became unavailable. He was therefore unable to provide any further explanation of his earlier statement made on the day of the incident which stated he believed his sister had kicked RK.

Applicable Law and legal principles

15. 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.

16. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s.4 of the Act.

17. The Children’s Guardian will consider those matters set out in s.15(4) of the Act in making a risk assessment. 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; s.18(2) of the Act

18. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision; s.27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s.27(4) of the Act.

19. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: BJB v NSW 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; R v Commission for Children and Young People [2002] NSWlRComm 101.

20. The issue for the Tribunal as required by s18(2) of the Act is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. It is well established that the test to be applied is whether the risk posed by the applicant is ‘real and appreciable in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the words that follow, namely, ”to the safety of children”…’ see Commission for Children and Young People v V (2002) 56 NSWLR 476.

21. In determining this application, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30(1A) of the Act. CHB v Children’s Guardian [2016] NSWCATAD 214 at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267.

Consideration of s.30(1) factors and Findings

a) Seriousness of any matters that caused the assessment in relation to the person

22. The allegations against CYA are that she assaulted her child, RK on 2 occasions when he was 3 years old in 2014 and when he was 4 years old in 2015.

23. The 2014 allegation is denied by CYA and the charge was withdrawn. However, there is medical evidence that RK sustained an injury after the alleged assault and he was required to stay overnight in the hospital for observation. There are also two witnesses to the assault, albeit family members who appeared not to be on good terms with CYA at the time.

24. The 2015 allegation is also denied by CYA and the charge was withdrawn. However, CYA pleaded guilty to assaulting her partner. This charge was supported by the evidence of a mobile phone recording. It was shown to the Tribunal and shows CYA as aggressive and threatening towards her partner. It also shows her assaulting her partner to which she pleaded guilty. The recording also shows the child, RK witnessing the incident of threatening and violent behaviour. In the recording, the child appears scared and anxious.

25. Both allegations/ incidents of assault of RK are serious. Further, CYA’s assault of her partner and her threatening conduct towards him was witnessed by RK in its entirety and this is also a very serious matter.

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

26. The trigger offences were alleged to have occurred in November 2014 and May 2015. There are no offences against CYA since that time. However, there are 34 events recorded by COPS since that first trigger offence, relating to family violence and other matters involving CYA.

c) The age of the person at the time the offences or matters occurred.

27. CYA was 27 years old in November 2014 and 28 years old in May 2015.

d) The age of each victim of any relevant offence or conduct at the time it occurred and many matters relating to the vulnerability of the victim.

28. The victim was 3 years old when the 2014 incident occurred and 4 years old when the 2015 incident occurred. The victim was a very young child and lived in a family that regularly experienced family violence. The child is likely to have been confused and concerned when police and medical staff sought to assist and interview him over an allegation of assault against his mother. He was also very young and dependent on his mother to be protective of him. Given his age and family circumstances the victim was very vulnerable.

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

29. The difference in age between the CYA and the child is approximately 24 years. The victim is the son of CYA.

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

30. CYA was the mother of the victim and would have known he was a child.

g) The person’s present age

31. The present age of CYA is 30 years of age.

h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

32. CYA’s criminal record is made up of offences that occurred at the same time as the alleged trigger offences. CYA pleaded guilty to a breach of AVO that occurred in November 2014 and received a section 10 bond. She also pleaded guilty to assaulting her partner in May 2005 and on appeal, received another section 10 bond.

33. The NSW Police recorded 124 COPS events involving CYA (the majority being family violence related) between 2007 and 2016 with 34 events since the first trigger event in November 2014. The COPS events record incidents where CYA was both the victim and the defendant. A number of these events include CYA being in breach of AVOs as the defendant.

i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

34. CYA self-referred to a forensic psychologist, Mr. Schreiner who provided a report dated 1 April 2017. He concluded that CYA, ‘does not suffer from a psychological condition or suicidal ideation. Whilst she is a dominant individual and shows a tendency towards an “inflated self-esteem”, no psychopathology was observed’.

35. However, Mr Schreiner qualifies his opinion earlier in his report stating, ‘The test data suggest that she tends to present herself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals admit. She appears reluctant to admit to relatively minor faults of personal problems and she may be blindly uncritical of her own behaviour. She may minimise, or even be unaware of problems. Given these defensive tendencies, the interpretive hypotheses in this report must be reviewed with considerable caution.’

36. Mr Schreiner was cross-examined by respondent counsel. He stated that his report and opinion was based entirely on information provided to him by CYA. He did not receive any background information or documentation from CYA in preparing for the assessment. He agreed in cross-examination that he was not aware of significant and relevant matters when he made his assessment and conclusions. These matters included the charges against CYA in November 2014 and May 2015 of CYA assaulting her child that were subsequently withdrawn; the 124 COPS events involving CYA as both victim and defendant including 3 breaches of AVO as a defendant, history of mental health and suicide attempts including scheduling under the Mental Health Act (2007) on 3 occasions. Mr Schreiner agreed that based on the absence of this information his assessment and opinion set out in his report is not accurate. To provide an accurate assessment he would need to read and consider all the relevant material referred to.

37. During her evidence CYA agreed her children had witnessed numerous events of family violence involving herself, her partner and her mother. CYA also watched the recording shown to the Tribunal of the November 2015 incident where her son, RK is under a cover in bed, during a family violence event between herself and her partner. In evidence, she did not agree that her son looked scared or anxious or frightened. She described him as looking ‘sad’. She was asked about the impact of witnessing family violence events on her children and stated that her child, RK ‘had ignored everything that has happened. He is a happy child and there has been no impact.’

38. These responses by CYA support the findings made by Mr Schreiner (para 42 above) and demonstrate CYA has little or no insight into the possible harm caused to children by witnessing violence and threatening behaviour. They also provide little confidence that CYA would actively protect a child given any similar scenarios in the future, or identify as potentially damaging for a child.

j) Any information given in, or in relation to, the application.

39. CYA stated the charges of assaulting her child were never prosecuted as they did not happen. Her family fabricated the allegations as they were not getting along with each other at that time. There was no evidence of assault and the police did not subpoena hospital records as RK sustained no injuries. The 124 COPS entries are primarily caused by the violence of her ex-partner and there are very few events in which she is the defendant.

40. CYA relies on the opinion of Mr Schreiner that she ‘does not suffer from a psychological condition or suicidal ideation’. She agrees she was scheduled three times under the Mental Health Act (2007). However, on each occasion she was not mentally unwell but the police made her feel she was unworthy to be a mother to her children and she agreed to go to the hospital because she was told to do so by police.

41. She is a good mother to her children. She referred to parental Consent Orders made by the Federal Magistrates Court in her family law proceedings dated 14 February 2013, giving her sole parental responsibility for her child, RK and ordering that he live with her.

42. CYA provided a reference from a Ms Singh who supported her application for a WWCCC clearance.

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

43. The respondent provided several letters from previous employers in the childcare industry who had employed CYA that in general terms, were not complimentary of her work performance and attitude. One employer referred to her being dismissed although CYA disputes this and states she left of her own accord. There were also other work references that were positive about CYA’s performance and approach to her work.

44. The respondent submitted there is ongoing concern for CYA’s mental health. She has a history of mental health illness as set out in the NSW health records of admissions to hospital for mental health reasons. She has been scheduled on 3 occasions under the Mental Health Act (2007). The most recent mental health event was in September 2016 and the record states, “…she felt like taking all of her medication and killing herself”. CYA provided no evidence that she is currently receiving treatment for her mental health. In evidence, she stated she had a counsellor but had not seen the counsellor since June 2015 as she could not afford the cost of each session.

Consideration

45. The Tribunal does not make a finding that CYA assaulted her child as alleged by the trigger offences. The evidence supporting the allegations was in the context of a family dispute. The statements were provided by family members who were themselves victims and defendants in various police matters against each other, and they then subsequently withdrew their statements. There is medical evidence of an injury to the child and an admission to hospital for treatment but not evidence that it related to an assault. The allegations were withdrawn by police and not tested by a court hearing.

46. However, the Tribunal relies on other factors in deciding that CYA poses a risk to the safety of children.

47. In its reasons for decision, the Children’s Guardian states ‘there is evidence [CYA] is impulsive, and unable to manage her tendency to engage in erratic and aggressive behavior in the presence of children.’ The Tribunal agrees with this conclusion. The mobile phone recording of the May 2015 incident shows CYA being aggressive and threatening towards her partner and assaulting him while her child is close by and watching. CYA takes no action to protect the child during the incident. The child appears anxious and frightened during the incident.

48. NSW Police record CYA as having 124 COPS events in which CYA is both the victim and the defendant. They are mainly family violence related and include three breaches of apprehended violence orders by CYA as the defendant. In evidence, CYA agreed that her children had witnessed some family violence incidents including the incident shown in the recording. However, she did not agree her child had been negatively impacted by these events other than making him sad. In her responses, CYA demonstrated little insight or understanding of the vulnerability of children, the impact of family violence on children and the need for protective strategies.

49. The Tribunal is also concerned that CYA has not engaged in any ongoing and recent therapeutic treatment for her mental health. She has been scheduled under the Mental Health Act (2007) on 3 previous occasions with the last schedule occurring in September 2016 but has not seen her counsellor since June 2015. Without treatment and a plan to manage her symptoms, her risk of engaging in erratic and aggressive behavior increases.

50. For these reasons the Tribunal finds that CYA poses a risk to the safety of children. Having found the applicant poses a risk to the safety of children, there is no requirement for the Tribunal to address the further criteria set out in s.30(1A) of the Act.

Orders

51. The Tribunal affirms the respondent’s decision to refuse to grant the applicant 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

Amendments

26 July 2017 - De-identifiying information under 'Documents filed by Applicant' to meet non-publication order

Decision last updated: 26 July 2017