CYW v Children's Guardian - [2017] NSWCATAD 313

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CYW v Children’s Guardian [2017] NSWCATAD 313
Hearing dates: 11 August 2017
Date of orders: 30 October 2017
Decision date: 30 October 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
S Davison, General Member
Decision:
(1) The decision to cancel the Applicant’s Working with Children 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)
Category: Principal judgment
Parties: CYW (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Mr Calokerinos (Applicant)
Mr Guterras (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00053562
Publication restriction: 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

The Applicant “CYW” seeks a review of the decision made by the Children’s Guardian (“the Respondent”) to cancel her Working with Children Check (WWCC) clearance. CYW has been an authorised foster carer of three young girls (the foster children). In 2016 her biological son (“J”) was charged with assault of one of the foster children (“S”). The assault comprised of J hitting S several times with a belt as a form of punishment or discipline. This came to the attention of the Respondent, which triggered a risk assessment pursuant to section 15 (3) of the Child Protection (Working with Children) Act 2012 (“the Act”). The trigger was information indicating CYW neglected a child in her care by not protecting her and not providing a supportive environment following a domestic incident during which S was harmed. The Respondent determined that CYW posed a risk to the safety of children.
The Respondent argues that CYW’s capacity to care for children, including to protect them from harm, is not sufficient in order to find that she does not pose a risk to the safety of children. Evidence was presented that CYW relied on J to discipline the foster children. The charges against J were proven beyond a reasonable doubt in the Local Court and the conviction upheld on appeal in the District Court. The Tribunal accepts this finding, including that the assault occurred in the context of J disciplining or punishing S.
The evidence CYW gave in the Local Court and to the Tribunal suggests a preference to protect members of her own family, in particular her son J, over the care and protective needs of the foster children. CYW expressed a strong wish to resume care for the foster children, however the evidence in support of her application does not outweigh the concerns that arise in relation to her capacity to protect children from harm. The Tribunal finds CYW poses an unacceptable risk to the safety of children for the reasons set out below.
The Tribunal finds that the correct decision is to affirm the Respondent’s decision to cancel the Applicant’s WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63.
The Tribunal was provided with the following material:

Application received on 20 February 2017.

Submissions received on behalf of the Applicant on 14 June 2017.

Bundle of documents received from the Applicant’s solicitors on 20 June 2017.

Bundle of documents received from the Applicant’s solicitors on 28 April 2017.

Affidavit made by the Applicant on 6 December 2016.

Section 58 documents filed by the Respondent received on 9 June 2017.

Further documents filed by the Respondent received 13 June 2017.

Further documents filed by the Respondent received 15 June 2017.

Further documents filed by the Respondent received 3 August 2017.

Submissions on behalf of the Respondent received 13 June 2017.

CYW has separate proceedings in this Tribunal against the decision to cancel her authorization as a foster carer.

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.

The seriousness of the offence

In about 2010, the victim and her younger sister were placed in foster care with CYW, her late husband and their son J. At the time the girls were fostered they were 4 years and 2 years of age, respectively. A third foster child (a sister aged 2 days) was placed with the family in 2011.
The assault occurred in March 2016. J was 20 years old. He was convicted in the Local Court of assault occasioning actual bodily harm (section 59 (2) of the Crimes Act 1900 (NSW)) (“the assault”). The circumstances of the assault were that CYW had discovered that S opened a social media account despite being forbidden from doing so. CYW asked J to delete this account, which he did. He was convicted of hitting S several times with a belt after deleting the account, causing her significant bruising and red marks to her legs. There is evidence, which the Tribunal accepts, of S being distressed and physically injured by the incident. In convicting J, Her Honour in the Local Court found the injuries were “serious”. The Tribunal also considers the assault to be a serious matter.
During the criminal proceedings, conflicting evidence was presented about CYW’s proximity to the assault and her knowledge of it occurring. CYW gave evidence that S had fallen off her bike and that is how she sustained these injuries. The Magistrate did not accept CYW’s evidence and in doing so characterised CYW as an “unreliable witness”. Her Honour found the injuries were not consistent with falling off a bike but were consistent with being hit by a belt.
At the hearing CYW was asked whether she now accepts the assault had occurred. CWJ said “I accept what the court said. I have no choice”. She said “I did not see or hear anything but I have to go with what the court said”.
CYW does not, however, fully accept that S is telling the truth about the assault. At one stage during her evidence she told the Tribunal “S is a compulsive liar”. CYW provided information to the Respondent in the risk assessment process about behavioural issues and examples of occasions when S had not told the truth. Of concern was that CYW had not seemingly taken into account that S disclosed the assault to trusted professionals within days of it occurring and that these disclosures were consistent with each other in the detail of what happened and consistent with the injuries she sustained.
The Respondent obtained information suggesting S disclosed that J had struck her on previous occasions, sometimes with his hand or his belt, and that CYW knew about this. In 2014, there was an investigation following a disclosure made by S’s younger sister to a caseworker that J hit S and left a mark on her back or bottom. CYW was interviewed, as was J and other family members. The investigation did not substantiate allegations of physical harm but the investigator records J as saying that he was relied upon to discipline the children, although did not admit to using physical force. He referred to making the children do “star jumps”. CYW confirmed in her evidence to the Tribunal that this was something J would get the foster children to do but only as a “fun” activity. At the conclusion of this investigation, CYW was counselled not to use J to discipline the foster children.
CYW maintained throughout the hearing that J had no involvement with the discipline of the foster children. When asked about the comment J made to the investigator, CYW said he was “trying to upset her (the investigator), being 19 years old and silly”. However following the assault in 2016, a further investigation was undertaken and J said to the investigator with respect to his role in disciplining the children that “nothing changed”.
CYW’s sister told the investigator in 2016 that she had observed J threatening S with a belt in his hand in 2015 and on one occasion had to stand between them to protect S from being hit. She said she had also seen CYW’s (now late) husband hit S till “her little bottom was red raw”. She said she took a photo of S’s injuries and reported it to the family GP. She referred to CYW and J calling S a liar, however she did not think S lied about being hit by J or by CYW’s late husband.
When asked about the information given by her sister to the investigator, CYW said she had never seen any injuries sustained by S arising from being disciplined. In relation to the incident when J is said to have threatened S with a belt, CYW said “but he never did anything”. CYW said she bathed the foster children every night and would have seen something untoward like injuries sustained by a belt. She said “kids always have marks on them”. When specifically asked about whether they would have welts across their legs she said “not generally”. CYW told the Tribunal she would need to see bruises in order to believe that S had been assaulted.
The information provided to the investigator from other family members also included CYW having difficulties coping with the foster children following the death of her husband and this in part was why she relied on J to discipline the foster children. Comments were made about the foster children being exposed to domestic violence when CYW’s late husband was alive. CYW denied this. No family members, including J, gave evidence at the Hearing. The Tribunal makes no findings in relation to the allegations that the foster children were exposed to domestic violence.
The assault perpetrated on S was however, was proven beyond a reasonable doubt in a court. The Tribunal is satisfied the assault was in the context of J disciplining or punishing S. Together with the information given by J to the investigator in 2014 and in 2016, the disclosures made by S and her younger sister, and the information given by CYW’s sister, there is a strong likelihood that J did play a role in disciplining the foster children on certain occasions. The Tribunal was not persuaded by CYW’s evidence denying that this was the case.
CYW said she did not discuss the assault with J at the time or following S disclosing that it had occurred. She told the Tribunal that she did not believe that J assaulted S because J’s girlfriend was in his room at the time, and she told CYW that nothing happened. Neither J nor CYW mentioned in their statements to the Police that J’s girlfriend was in the room at the time of the incident. CYW told the Tribunal this was because J asked her not to tell the Police she was there because her mother was very strict. They both decided to not tell the Police that J’s girlfriend was present at the time even though she was the only other witness to this incident.
J’s girlfriend did ultimately make a statement to Police and gave evidence in the criminal proceedings. She said J made S stand facing the wall and was asking her why she did something she was not allowed to do. She did not say that J hit S with a belt, but her evidence that J made S stand facing the wall suggests he was in the process of disciplining or punishing her. J’s girlfriend was asked why she thought CYW did not say she was there in her Police statement. She said “I don’t know why she wouldn’t have said if I was, that I was there when I was”. She was asked whether she would find it unusual she replied “yes”.
CYW omitted an important piece of information from her Police statement because J had asked her to do so. It suggests that she was prepared to alter her evidence at the behest of J. CYW now concedes that this was a mistake. However the Tribunal considered that doubts remain about CYW’s capacity to prioritise the protection of children in certain situations.

Period of time since the assault occurred and CYW’s conduct since then

The assault occurred less than 2 years ago. The foster children were removed shortly after the assault occurred.

The age of the person at the time

CYW was 56 years old at the time of the assault.

Age of the victim at the time of the assault and any matters relative to the vulnerability of the victim

S was 7 years old at the time of the assault. She was in an extremely vulnerable position in light of her being placed in foster care. The assault occurred in a foster placement, by the biological son of her foster carer, which placed her in an even more vulnerable position.

Difference in age between CYW and the victim and their relationship

CYW is 49 years older than S. CYW had been S’s foster carer for about 6 years and was in a position of trust and responsibility. CYW had responsibility to mitigate risks and protect S from harm, which she failed to do in relation to the assault committed by J.

Whether CYW knew S was a child

CYW was aware of the age of S and the nature of their relationship.

The Applicant’s present age

CYW is 58 years old.

Seriousness of CYW’s total criminal record and conduct since the assault

CYW has no criminal record. The Respondent accepts the lack of criminal record weighs in CYW’s favour in the assessment of risk to the safety of children, however it has limited bearing on the assessment of risk arising from failing to protect children from harm.

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

Any repetition of the offence would have a serious detrimental impact on children, perhaps even more so in the case of foster children. There is no suggestion that CYW has physically assaulted children in her care.
CYW’s attitude towards the allegations and information provided by S and other family members raise concerns about her capacity to protect children from harm. Throughout the criminal proceedings, CYW maintained there was no substance to S’s complaint that J had assaulted her. At the hearing she told the Tribunal “I did not see or hear anything” and “I don’t know what happened”. CYW’s view is that the injuries sustained by S were from her falling off her bike. Furthermore, her reliance on needing to see “bruises” or “have proof”, in the face of complaints or disclosures made by the foster children, suggests a concerning lack of capacity to protect children from harm. Her belief that it was not necessary to take any action in relation to J threatening to hit S with a belt because “nothing had happened” is a pertinent example of this.
The Respondent referred to information about CYW’s deceased husband engaging in illicit drug use while the foster children were in their care. The circumstances of his death were being found in a toilet with illicit drugs in his system and syringes and illicit drugs in his possession. It was suspected that he took his own life. CYW was asked about her knowledge of her late husband’s drug use and mental health issues. CYW denied she knew that her late husband was using illicit drugs. She said she knew her husband had been suspended from work as a truck driver, but did not know that this was because of his drug use. Her sister referred to his drug use in information she gave to the Police and J told Police he had found illicit drugs in the family home. Her late husband had also attempted suicide in the months before his death and she was attending mental health outpatient appointments with him. The Tribunal was troubled by CYW’s evidence that she knew nothing about her late husband’s illicit drug use.
If she had not known, then it is cause for concern with respect to her capacity to protect the foster children from harm. If she had been aware of it, she had not informed the foster care agency or FaCS of this, which she would have been obliged to do. The Tribunal is not in the position to make a finding as to whether CYW knew about her late husband’s drug use. CYW’s evidence does suggest, however, a lack of capacity to protect the children from being exposed to harm that might have arisen in relation to this.
CYW did not take steps to mitigate the risk of harm to S or any of the foster children in relation to J or her late husband. CYW did not acknowledge these risks, or the need to have taken action to mitigate them. CYW was counselled in 2014 against using J to discipline the foster children. However J refers to having done this again in 2016 and feeling uncomfortable but also feeling that he needed to help his mother who was having a difficult time. CYW’s insistence that J had not taken on this role in any capacity is difficult to accept in light of all the evidence suggesting that he had done so.
CYW engaged “R” to conduct a review into her fitness as a foster carer for the purposes of the other proceedings in this Tribunal in relation to an appeal against the cancellation of her authorisation as a foster carer. CYW tendered this report and R gave evidence at the Hearing. CYW was assessed by R on one occasion. She did not tell R about her late husband’s drug use. She said this was because she only became aware of it after seeing the material obtained by the Respondent. R notes in her report, however, that CYW did not want to discuss the details of her late husband’s death, including the Coroner’s findings which refers to finding drugs in his system and drugs and syringes in his possession. CYW told R he died of natural causes after attending the gym. CYW acknowledged that she was aware of the Coroner’s report at the time she was interviewed by R, however she told R that he was not involved in illicit drug use. CYW also did not tell the foster care agency of the involvement of drugs in the death of her late husband.
R told the Tribunal she is a student advocate and a consultant with a number of tertiary qualifications including in law and social work. She said CYW cleared the checks and inspections and met competency levels in every assessment. She said the assault indicated a potential risk but felt CYW would be able to mitigate the risks. R said CYW had asked J to leave the family home, although at the time of interview he was still living there. R said she did not conduct a formal risk assessment. She said it was more in the form of a safety competency assessment. She had access to files from the foster care agency and was provided with some documents obtained by the Respondent but no Police documents. She accepts this limits the nature of her review and assessment. She did not read the Police interview with S nor did she interview the foster children. At the time of her assessment the outcome of the criminal proceedings against J were not known. R’s review was not focussed on assessing whether CYW poses a risk to the safety of children but on whether certain competencies in relation to the care of children were met. R said these competencies include the ability to understand and inform the foster care agency about potential risks. R said if CYW was aware of her late husband’s drug use, and the involvement of illicit drugs in his death, she should have disclosed this information but had not.

R’s evidence in support of CYW’s application is limited by her having not conducted a formal risk assessment and her limited access to the material obtained by the Respondent. The Tribunal also has some concerns about the extent of CYW’s candour with R, particularly in relation her late husband’s cause of death and his drug use. R’s evidence, therefore, only offers limited support for CYW’s application.

Any information given by the Applicant

At the hearing CYW told the Tribunal that J moved out with his current girlfriend about 3 or 4 months ago. They remain close and J visits from time to time.
In closing submissions, CYW’s counsel said that CYW had made mistakes, such as withholding information from the Police, but submitted that she has learned from these mistakes. CYW said she thought the foster children were safe and happy children. She stands by that assessment in light of the evidence presented and, more pertinently, the proven assault and injuries sustained by S. She provided the Respondent with eleven personal references from family and friends. These references are personal in nature and in some cases only have limited knowledge of the assault or concerns raised by the Respondent. They can, therefore, be afforded only limited weight.
CYW has undertaken a number of training and educational courses in relation to care of foster children, including strategies to discipline and deal with problematic behaviours. This weighs in her favour. As noted earlier she expressed a strong wish for the foster children to be returned to her care. The Tribunal was, however, concerned by her overall lack of insight into the concerns raised about J and his role in disciplining the foster children. CYW maintained J was just a loving older brother. The Tribunal was also concerned about CWY’s evidence in relation to her late husband’s illicit drug use and her preparedness to discuss it with the relevant authorities.

Conclusion and orders

The paramount consideration in these proceedings is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: The Act, s 4. The central issue in this application for review is whether CYW poses a risk to the safety of children on the basis of not being sufficiently able to protect children from harm.
On the basis of the evidence presented the Tribunal is satisfied that CYW poses a real and appreciable risk to the safety of children.
As the Tribunal has determined that CYW poses an unacceptable risk to the safety of children, it is not necessary to consider the reasonable person and public interest test in s 30(1A) of the Child Protection (Working with Children) Act.
The Tribunal orders that:

The decision to cancel the Working with Children Check Clearance is affirmed.

**********

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

Registrar

Decision last updated: 30 October 2017

Medium Neutral Citation:	CYW v Children’s Guardian [2017] NSWCATAD 313
Hearing dates:	11 August 2017
Date of orders:	30 October 2017
Decision date:	30 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member S Davison, General Member
Decision:	(1) The decision to cancel the Applicant’s Working with Children 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)
Category:	Principal judgment
Parties:	CYW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr Calokerinos (Applicant) Mr Guterras (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00053562
Publication restriction:	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.