Dao v Children's Guardian - [2017] NSWCATAD 317

No judgment structure available for this case.

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DAO v Children’s Guardian [2017] NSWCATAD 317
Hearing dates: 28 July 2017; 13 September 2017
Date of orders: 01 November 2017
Decision date: 01 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Dr B Field, General Member
Decision:
(1) The decision of the Children’s Guardian dated 3 April 2017 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.

(3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords: Child protection – Working with children – conviction for assault occasioning actual bodily harm – 2015 amendments not applicable – application lodged only to engage in unpaid child-related work - decision set aside.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9
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; 56 NSWLR 476
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: DAO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00108305
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

Introduction

The applicant, who will be referred to as DAO, requires a working with children check clearance to continue working with children as a riding instructor. For this reason, she applied for a clearance in January 2015.
The Children’s Guardian, who is the respondent in this case, has the power to undertake a risk assessment under s15 of the Child Protection (Working with Children) Act 2012 (‘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.
The applicant was subject to a risk assessment because of her conviction in 2014 for the assault of her ten-year-old son (‘the elder son’). (see Schedule 1 of the Act)
Under section 27 of the Act, the NSW Civil and Administrative Tribunal (‘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 section 63 of the Administrative Decisions Review Act 1997.)
On 3 April 2017, the Children’s Guardian made a decision refusing to grant the applicant a working with children check clearance.
The applicant lodged an application for review to this Tribunal on 6 April 2017. Although the applicant completed an external appeal form rather than an application for review form, under the heading grounds for appeal she confirms that she is ‘seeking a review of the decision of the Office of the Children’s Guardian to refuse to grant [her] a working with children clearance.’ In the circumstances, we accept as valid her application for review of the refusal to grant her a working with children check clearance, a decision that was not opposed by Counsel for the Children’s Guardian.
Although she applied for a volunteer working with children’s check clearance nominating ‘parent volunteer’ as the employment sector, if the clearance is granted, the applicant requests that the clearance be as a ‘non-volunteer’ class in accordance with s12(2) of the Child Protection (Working with Children) Act 2012.
In this application, the issue for determination is whether the applicant poses a risk to the safety of 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]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476.
The jurisdiction of the Tribunal under section 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].
The Child Protection (Working with Children) Act 2012 (‘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 her application. 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:
(a) 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
(b) it is in the public interest to make the order.

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 her 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.
Due to the sensitive nature of these proceedings, an order was made under subsection 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 DAO has been used for the applicant's name.
At the hearing before the Tribunal, documentary evidence was filed by both parties and the applicant gave oral evidence, as did the applicant’s treating psychologist and the forensic psychologist engaged by the applicant to prepare a risk assessment report for these proceedings. The applicant was self-represented at the hearing.

Background

The applicant is a single mother of seven children ranging in age from four to sixteen years of age. The first five children, from her marriage, live with her for ten nights each fortnight and half of all school holidays. This includes her elder son, who is now fourteen years old and who recently returned from boarding school, where he had been unhappy, to live with her and to attend the local high school.
Her youngest two children, who are four and five years old and who are from her former de facto relationship, have lived with the applicant on a full-time basis since their birth.
In 2015, the applicant registered a business name for her riding school. She stated that, at the time of registering the business, she also attempted to apply for a non-volunteer working with children check clearance but was not permitted to do so by the online computer application system.
A file note dated 29 June 2016 by a case officer from the Children’s Guardian states that:

TL and RAO discussed issue of applicant working in paid capacity with volunteer app number due to system issue not permitting her to complete a new paid application. TL sought advice from manager. TL advised applicant’s volunteer application not to be cancelled/new paid application made given this may result in applicant falling into a period of not holding a WWCC application at all. RAO to continue with RA under current application. RAO contacted applicant to advise at 3.55pm 29/6/2016.

Trigger offence

The 2014 assault of her elder son, who was ten years old at the time, is the trigger offence for the risk assessment conducted for the applicant.
According to a facts sheet contained on file, the applicant’s son had been at the local showground on 25 August 2014 and had squirted water at one of the applicant’s horses causing the horse to rear up. According to the facts sheet, he had walked home alone because there was no room in the car for him and had initially been denied entry into the house by the applicant. When he was subsequently allowed inside, the facts sheet states that the applicant pushed him into her bedroom, and onto her bed. Her former de facto partner held the boy down with both hands while the applicant slapped his son ‘for about 3 minutes without stopping.’ The following day, the boy went to his father’s place, who took him to the hospital. The boy was found to have bruises and broken capillaries to the upper right and left posterior thighs and linear marks across both legs.
There is nothing to confirm that these were the agreed facts upon which the applicant was sentenced and there is no transcript of the court proceedings before the Tribunal.
In a COPS event record dated 27 August 2014, the applicant is recorded as having said to police ‘I don’t deny that I hit [him] up to ten times but I didn’t realise I had caused those injuries, there was a pattern of him misbehaving leading up to what I did which I would like to talk about.’
In a home visit by the Department of Family and Community Services (‘FACS’) after an interview with the applicant’s son on 27 August 2014, the applicant’s explanation of the night in question is recorded as follows:

She stated that [her son] had spent two weeks with his father and this particular afternoon they had been at the showgrounds and [the son] was misbehaving and has recently stolen money from her. [DAO] said that her son was squirting water at the horses and when she told him not to, he gave her the finger. [DAO] said she told him ‘just wait till we get home I’m not going to do it here, I’ll wait till you get home and I’ll smack the crap out of your backside.’ She said she did not like what was coming out of his mouth as it was abhorrent and he was bouncing a ball on his sister’s head. [Her son] then took his brother in the pram onto the road within the showground and [DAO] said ‘You are going to get punished. You won’t sit down for a week.’ At this point [her son] has taken off from the showground. When he returned she locked him outside and he was swearing at her.
[DAO] said that she put him on the bed, took his pants off and left his undies on, [her then partner] was holding him down by the shoulders and she smacked him 10-12 times on the thighs and backside of his body.
[The case officer] told the applicant that [the son] cannot go home tonight and will remain in the care of his father indefinitely. [DAO] responded by saying ‘really, he can’t come home because I tanned his hide, are you serious? That’s not legislated.’

In a statement prepared for these proceedings, the applicant explained the escalation of tensions culminating in her smacking her son. In her statement, the applicant clarified that at the showground on the weekend preceding the assault:

her elder son had been bouncing a soccer ball at the head of his two-year-old sister;

her elder son had let his two and one-year old siblings out of their strollers and walked away, leaving the two-year-old to walk towards an arena filled with horses;

while the applicant was teaching a riding class, the elder son took his two and one-year-old siblings towards a drain and refused to stop when asked.

According to the applicant, on the afternoon of the assault, the elder son:

had thrown water at the horses his sisters were riding;

had threatened to roll an empty 44 gallon drum down a steep incline if the applicant didn’t let him go home, letting it go when the applicant refused;

had told the applicant’s friend to fuck off when she asked him to stop misbehaving;

had grabbed the stroller containing his 13-month-old brother then started to push him away and run away with him before leaving the baby in the stroller on the road and running away himself.

At the time, the applicant wrote that she had been in the process of arranging counselling for her son as his behaviour had deteriorated dramatically in the preceding twelve months.

Physical punishment is never my first course of action, I have literally tried everything to try and find and help the source of my son’s behaviour. I have asked for and attend multiple meetings with his teachers to ask for advice. Last year his teacher suggested he needed more time with me and some type of team sport to help with the aggression. I signed him up for touch football in the spring of last year and took him (and the babies) to training every single Thursday unless he didn’t want to go or wanted to go to Dad’s.

In oral evidence before the Tribunal, the applicant said that the behaviour of her elder son had become increasingly challenging from the end of 2012 and had further deteriorated in 2014.
On the night of the offence, the applicant had taken the children to the local fair. Towards the end of the evening, the applicant’s elder son took the stroller containing the applicant’s then infant son and ran off into the darkness. The applicant didn’t know what to do: whether to chase the boys or remain with the other five children. This was why she decided to ask for help from her former de facto partner who lived close by.
When her elder son returned home and knocked on the door asking to come in, the applicant asked him to apologise but he refused. The applicant told him how frightened she had been that he had left the stroller in the middle of the road with the baby still in it and that he needed to apologise before coming in.
She agreed that she later grabbed him around the back of the neck and pushed him into her bedroom. She told the Tribunal that by that time, she was feeling ‘desperate and absolutely defeated.’ She agreed that she had told her son ‘you are going to be punished so that you won’t be able to sit down.’ She agreed that she directed her former de facto partner to hold her son down on the bed, that she removed the child’s trousers (leaving on his underpants) and started smacking the back of his legs. She told the Tribunal that her son wasn’t crying and wasn’t struggling to breathe. She agreed that her son then caught the bus to his father’s house. She agreed that according to the doctor who saw him, her son had marks across his thighs and broken capillaries on his skin. She accepted that she must have caused the injuries but told the Tribunal that she had never actually seen them.
In the absence of any confirmation that the statement of facts before us is in fact the agreed set of fact upon which the applicant was sentenced and in the absence of any evidence from the applicant’s elder son, we accept the applicant’s evidence as to what happened on the 25 August 2014.
The applicant agreed that she had pleaded guilty to assault occasioning actual bodily harm and that she had received no legal advice in relation to the charge until she spoke to a Legal Aid solicitor on the day of her court appearance.
During a subsequent interview with an officer from the Department of Family and Community Services, the applicant agreed that she had told the officer that she would ‘tan her son’s hide at the drop of a hat.’ She agreed that, at the time of the interview, she still believed that what she had done was proportionate to her son’s increasing behaviour and that she had exhausted other options. She agreed that her relationship with her former de facto partner had an effect on her behaviour with her eldest son, in that her relationship with her former partner reduced her ability to see the situation from her son’s point of view.
On 5 November 2014, the applicant pleaded guilty to one count of assault occasioning actual bodily harm for which she was sentenced to a good behaviour bond with 12 months supervision with probation and parole. Her corrections officer released her from further obligations to report from 24 April 2015 and her bond expired on 4 November 2015. The applicant had consented to a twelve month apprehended violence order, which also expired on 5 November 2015.
She told the Tribunal that her case was closed with FACS in October 2014 and that she has no further contact with FACS since then.
She told the Tribunal that she had attended counselling following the refusal of her working with children check clearance and intends to continue with her counselling sessions.
Documentation contained on file confirms that the applicant completed a Group Triple P Positive Parenting Program this year.
In further oral evidence on 13 September 2017, the applicant told the Tribunal that she had not consumed any alcohol since the first hearing date on 28 July 2017, and had not had a sexual relationship with her former partner, who, since the first hearing date, had only seen the children for an hour on Father’s Day. She confirmed that she was receiving ongoing counselling from her treating psychologist and had seen a separate counsellor to deal with sexual abuse trauma.

Contact with elder son since the trigger offence

In a statement dated 23 October 2016, the applicant advised that she had not had any contact with her elder son from 26 August 2014 and Christmas 2014. From Christmas 2014 onwards, her elder son spent numerous weekends and parts of school holidays throughout 2015 with her. After attending boarding school for one term in 2017, the applicant’s elder son has returned to live with her. According to the applicant, whilst her son liked the day school and the schoolwork at his former school, he didn’t like boarding. He now attends the local high school where, according to the applicant, he is doing really well and has recently been moved into the top maths class.
The applicant has the care of her four other elder children for ten nights a fortnight while the elder son and her two youngest children live with her on a full-time basis. The elder son doesn’t like to go to his father’s place because his father lives on the property with his grandparents who are disappointed with the elder son for leaving the boarding school they had wanted him to attend.
The applicant told the Tribunal that she has benefited from the positive parenting program she undertook and that she has no behaviour issues with her other children. She told the Tribunal that the lines of communication with her son are open and that their relationship is good.

Discipline & parenting issues

The applicant agreed that she previously used corporal punishment to discipline her five elder children but denied ever using an implement to physically discipline them. She told the Tribunal that she has not physically disciplined any of the children since 2014 and has denied ever physically disciplining the two youngest children. She told the Tribunal that she always had the skills to raise her children without using physical discipline and did not use it often. She has, however, that she has found managing the children much easier without using physical discipline.

Contained on file are a summary of FACS records for the applicant which suggest that in 2007 and 2008, the applicant’s marriage was failing and she was drinking heavily. Many of these notifications appear to have come from the applicant’s former parents-in-law.
A later notification in 2009 describes the applicant as having struck her daughter with a coat hanger and in 2013, a notification was made that the applicant had hit her elder son with a ‘horse whip across his bottom.’ ‘Nil evidence of injury’ is noted in relation to this allegation.
The remaining FACS reports concern the trigger offence.
On the evidence before us, there have been no further notifications to FACS.
In a statement to the Tribunal dated 13 January 2017, the applicant described the insight she has gained following the assault:

I had been focusing on the effects of what [my son’s] increasingly challenging behaviour had been having on me personally and his sisters rather than taking more definite steps to help him… Even though I did seek advice from his teachers, they would not have been aware of the friction between [my son] and [my former partner] and my failure to address it in a way that clearly put [my son’s] needs above my own. I didn’t let my son know, nor did I demonstrate to him that he came first above all my personal relationships apart from the siblings. I failed my son long before I ultimately betrayed any remaining trust through my reprehensible actions of 25 August 2014. Using physical discipline in any form is unacceptable, but smacking my son repeatedly on his skin was a serious violation of my protective, loving and nurturing role as his Mum. But I didn’t just use excessive discipline on my son in a manner between him and I, I chose to involve another adult, an adult that my son despises, doesn’t trust and wasn’t intrinsic part of the cause of his challenging behaviour in the first place. I have displayed a lack of insight into the seriousness of my actions throughout the risk assessment period.

She also wrote

My previous way of thinking, that physical discipline could play a small part in the normal, loving and healthy upbringing of children no longer exists in any form. The risk assessment process itself has been a huge learning opportunity for me and though some of the biggest changes in attitude and thinking have been relatively recent, they are still profound and life changing. I have reached out to service providers for help and undertake to follow through with all recommendations for any therapy, treatment, courses etc.

She explains why she had initially been fearful of seeking help. This is because when she last sought help in 2006 and 2007 from her medical practitioner and the community health centre, the counselling notes were later used against her in Family Court proceedings.
The applicant wrote in her statement:

It has been nearly 3 years I assaulted my son. Since the incident, I have continued in my role as primary caregiver to six of my seven children without incident and without the use of physical discipline. As previously stated, [my son] chose to return from boarding school to live with me from April 2017.

Documentation from family law proceedings

On 8 February 2008, the Family Court ordered that the applicant’s then five children be placed with their father with supervised access given to the applicant.
By 9 July 2009, however, Terms of Settlement between the applicant, her former husband and the Independent Children’s Lawyer had been made making the applicant the primary carer for all five children.
Prior to the Terms of Settlement being made, affidavits had been filed by the applicant’s former parents-in-law and by her ex-husband. The affidavits spoke of the applicant’s alcohol abuse and described her as a neglectful mother.
As part of the Family Law proceedings, a Notice of Child Abuse was submitted by the applicant’s ex-husband about the applicant. The applicant’s ex-husband accused her of physically disciplining some of the children, leaving them unsupervised and putting her son into a stand-alone freezer.

Court Expert Report by Dr Milch

In a Chapter 15 Court Expert Report prepared for the Family Court in October 2008 by the psychiatrist, Dr Antony Milch, the applicant’s parents-in-law are described in the following terms:

They were seen to have taken a highly assertive approach to the interview process, with the paternal grandparents approaching my office to indicate how they would like the interviews to be timed and structured. They were seen to override arrangements made directly with the father. The father was observed to acquiesce to the wishes of the paternal grandparents…They viewed the mother as entirely responsible for the difficulties experienced by the children [and] described the mother’s approach to parenting in a contemptuous manner.

In assessing the mother’s parenting in a structured play environment, Dr Milch noted that

over a period of time the mother was observed to be highly attuned to the children’s needs. She was clearly connected to their areas of interest. [The children] were significantly more engaged and more contained in these interactions in contrast to their interactions with their father. It was noted that there was no need for the mother to make threats as had been observed with the father. There was also no need for the assessor to direct the play or supervision.’

The applicant’s early childhood nurse identified the applicant as a capable care giver with her first and subsequent babies and in her home visits, had never observed the mother to be neglectful of the children’s needs. The nurse described the applicant as organised and engaged in her care of the children with the children consistently identified to be clean and well nourished and the house well organised. It had not been her observation that the mother had been intoxicated or under the influence of alcohol at the time of the home visits.
In his report, Dr Milch identifies one of the applicant’s daughters as having features of an Autistic Spectrum Disorder, ADHD and Oppositional Defiant Disorder.
In his report, Dr Milch concludes that despite her history of substance abuse:

the overriding view of the mother’s parenting was that she had been a caring figure for her children and had acted as a primary care giver for the children up until recent times. The feedback from a range of professionals indicated her willingness to work constructively with educational and health professionals to attend to her children’s needs.

Criminal record

In addition to the trigger offence, in 1999, the applicant was convicted of obtaining a motor vehicle by deception and receiving stolen property for which she was sentenced to perform 50 hours of community service.

Alcohol consumption

Documentation on file confirms that the applicant had particular problems with her alcohol consumption in 2007 and 2008 and was involved with the local drug and alcohol service between 2006 and 2007.
The applicant told the Tribunal that she has not drunk any alcohol at all since December 2016 and that she has not drunk to a level of intoxication since 2008. She agreed that she had had a problem with her alcohol consumption in 2007 and into 2008.
She told the Tribunal that she has not had a problem staying sober and that she has learnt to better process her emotions and not to react to things so quickly. She told the Tribunal that she has no intention of consuming alcohol because she ‘doesn’t see the point of it.’ She used to find it relaxing but now has other ways to relax. Should she enter into a new relationship, she would say ‘I don’t drink, deal with it.’

Relationships

The applicant gave evidence that she has not been involved with her former de facto partner since 2016 and has since learnt strategies to avoid becoming involved in unhealthy relationships. She has felt no inclination to see her former partner and apart from an hour’s contact with them on Father’s Day, he has had no contact with their two children.
She described a supportive relationship with her former husband, who is the father of the five eldest children and explains the collapse of their marriage as being primarily because of his parents’ disapproval of her.

Risk assessment report

In June 2017, following four hours of clinical interview with the applicant, a forensic psychologist prepared a report which she described as follows:

with the absence of formal legal representation and structured parameters to address, this is a psychological assessment report.

From her report, it is unclear whether the forensic psychologist had access to all the material provided by the Children’s Guardian in this matter as it is not included in the list of ‘sources of information’ provided in the preamble to the report.
In relation to her presentation at interview, the applicant is described as demonstrating ‘appropriate insight and judgement on all occasions.’
The applicant’s childhood is described as difficult and unstable. The applicant described her marriage as being happy but destroyed by her not having been accepted by her parents-in-law and confirmed that it ended whilst the applicant was in the first semester of her fifth pregnancy. According to the report, the applicant ‘reported a very messy period of time in which she was drinking excessively and struggling with the demise of her marriage during 2007-2008.’ In noting the applicant’s claim that her parents-in-law made many vexatious reports to FACS, the forensic psychologist observed that ‘whilst these reports were noted none were substantiated by the statutory authority FACS/JIRT until the trigger offence.’
The applicant described her relationship with her former de facto partner as ‘toxic and abusive’ and stated that her relationship with him had ended towards the end of 2016.
She explained the offences of obtaining a motor vehicle by deception and receiving stolen property as being committed in the context of an abusive relationship with an older man who was an alcoholic, abused drugs and had a long criminal history.
The forensic psychologist administered a Personality Assessment Inventory, which revealed a clinical profile for the applicant consistent with someone who was experiencing anxiety and tension in relation to specific issues. Her self- concept profile is indicative of someone who experiences self-criticism and indecisiveness during periods of high stress. However, her interpersonal and social environment scores suggest she was warm, friendly and sympathetic person who is willing to give others a second chance. Her profile is indicative of someone who is highly motivated to engage in treatment to address her issues of trauma and under assertiveness.
The forensic psychologist assessed the applicant as being at moderate risk of future violence noting that ‘by far [her] greatest risk factor for future violence is alcohol use and dysfunctional relationships.’ The forensic psychologist noted that ‘should [the applicant] continue with her therapy and abstain from alcohol, with time her assessed level of risk will likely further reduce to the low range.’
In conclusion, the forensic psychologist stated that:

In line with the literature on treatment reducing the level of risk for future offending/violence, should [DAO] successfully manage her dynamic risk factors by completing her psychological treatment to improve her emotional stability, maintain on-going family and community support achieve/maintain employment stability, remain alcohol free, and continue to avoid dysfunctional abusive relationships for 6 to 12 months post treatment she would likely be assessed as low risk for future violence and as such should be considered for review.. for a working with children check clearance at that time.

In a supplementary report, the forensic psychologist confirmed that her risk assessment included children ‘as children are people too.’ She confirmed that her assessment was not focused on risk to children but that she assessed the applicant’s ‘risk of future violence to people, all people adults and children alike.’ She was unable to provide any estimate of the length of treatment the applicant would require to manage her dynamic risk factors, stating that the applicant’s treating psychologist would be better informed to advise that.
In terms of defining when the applicant could be seen as having completed her counselling treatment, the forensic psychologist advised the Tribunal that:

there are things that are out of her control in terms of access to services and you’ll see that I used words per treatment six to twelve months. I can’t give you a date, it will really depend on what’s been completed to date and where she is at on that journey….She’s certainly undertaken a lot of intervention in a short period of time and..it’s well indicated that she’s very motivated and engaged. She wasn’t trying to hide anything or defend anyone and she’s making the appropriate steps towards lowering that risk.

Evidence of the treating psychologist

The applicant has been seeing a psychologist (‘the treating psychologist’) since March 2017.
The treating psychologist, who gave oral evidence before the Tribunal, is a registered psychologist who has a certificate for mental health and a diploma in counselling. He agreed that he had been the applicant’s treating psychologist since March 2017 and anticipated concluding sessions with the applicant on 30 September 2017. Although this date coincides with the end of the funding package for the applicant’s treatment, the treating psychologist told the Tribunal that ‘we are probably winding down the work we need to do.’ He told the Tribunal that whilst ‘anyone would benefit from therapy’, he didn’t feel that the applicant had a need for further therapy. From his consultations with the applicant, it is his view that the work she has done elsewhere with sexual assault counselling is now complete. He told the Tribunal:

definitely if I had detected there were some issues there I would have supported her in either working with me on that or possibly going back to her therapist at Community Health, but I have not identified that as being a need at this stage….there’s been no kind of triggers if you like in session which would make me thing that [DAO] would require more sexual assault counselling.’

The treating psychologist made the following assessment of the applicant:

I’ve completed the PCL5 which is a assessment or a screener for post-traumatic stress disorder and according to that assessment she does not meet the criteria. Also using the DASS 21 which is a subjective assessment of stress, anxiety and depression she doesn’t meet the criteria for any of those. And my clinical observation of her [is that] she’s integrated the trauma well, she’s managing her distress and anxiety really well and she’s actually functioning extremely well.

He listed alcohol and engaging in unhealthy relationships as the two issues that may have influenced the trigger offence and gave his view that the applicant is now sober and that, in her final sessions, he would support her in how to develop and understand her health relationships in the future. He told the Tribunal that ‘this is probably not really therapeutic work it’s more along the lines of psycho-educational work.’
Although the treating psychologist is not a forensic psychologist and so would not be qualified to write a forensic report in relation to risk, he would be qualified - as a psychologist and mandatory reporter - to assess any potential risk. He told the Tribunal that in all sessions he conducts as a psychologist, he listens out for any potential risk to children. He told the Tribunal that he did not identify any such risk in his sessions with the applicant.
When asked to give his opinion in relation to the finding by the forensic psychiatrist that the applicant is currently at a moderate risk for violence, either towards adults or children, he told the Tribunal that:

what I have noticed in sessions, particularly over the last four or five sessions, is that [DAO] has kind of given examples to me without any priming of how she has actually interacted with her children, both [when] the children have been in conflict and also the other times.. that in my opinion she doesn’t demonstrate any sort of hyper-arousal or any sort of inability to manage any sort of distress. In fact what I have heard her say is that she has given examples of how she would manage conflict between the children… and some the things she has done I would suggest that I don’t hear a risk. I am alert to, in my practice to listen for any issues that might alarm me for protection or affective children and at this stage I haven’t heard [DAO] describe anything to me that would make me concerned. The only concern that I have is I know is her association with [her elder son], that is the only indicator for me. There are no other indicators I would be concerned about.

He told the Tribunal that he actively explored the area of risk to children in his work with the applicant, especially as she had disclosed the issue around the working with children check. He described probing the issue with the applicant during consultations and provided the example of the applicant’s description of a conflict with her children:

I actually explored what [DAO] did, how she managed it, and what I heard was her ability to support her children in sharing how they feel. I asked [DAO] how she felt and she said she’s very proud the way she did that..so part of that process is listening for any potential risk, especially because I’m aware that [DAO] has had this previous incident.

In terms of the applicant’s use of alcohol, the treating psychologist noted that she had previously had an issue with alcohol, particularly in 2007 but, on her evidence, has been alcohol-free since 9 December 2017. He told the Tribunal that the applicant now has a whole range of strategies she uses to manage her distress that do not involve drinking alcohol, that she is very remorseful about her behaviour with her son and is committed to being a good mother.
In terms of entering into unhealthy relationships in the future, the treating psychologist stated that he had explored this issue with the applicant who is committed to looking after her children and not entering into another unhealthy relationship. She and the treating psychologist talked about cognitive mechanisms she would use to ensure this didn’t happen.
He told the Tribunal that he thinks that the applicant is quite aware of what a dysfunctional relationship looks like and that her insight is good. He described the applicant as having an incredible capacity to take on information, to process it and then to integrate it very quickly.
The treating psychologist told the Tribunal that ‘based about what I know about [DAO] and the way that she works, she has demonstrated that she’ll do whatever it takes to be a good mum.’
In terms of the applicant’s counselling, the treating psychologist made the following observations:

in his view, the applicant has been sober since Christmas;

in his view, she has completed her sexual assault counselling – indeed that it might have been complete some time ago - and that he does not see any hotspots or triggers when he works with the applicant about this;

she has good insight into unhealthy relationships and is clear about the sort of things she doesn’t want in future relationships and the sort of things she might want in future relationships.

Applicant’s riding school

Prior to the refusal of her working with children check clearance, the applicant ran a riding school. Part of her role was as a riding coach for disabled children and adults. The applicant describes this role in the following terms:

As the coach it was my responsibility to safely mount riders onto their horses and make sure they were settled. Riders age from kindergarten to adults. I designed lesson plans involving literacy, numeracy, gross and find motor skills. I designed games and exercises that maximised progress in these areas. I have been blessed to witness non-verbal children speaking and chair reliant children with cerebral palsy walk to the horse only needing to hold my hand. It was my responsibility to have ‘eyes on’ throughout these lessons and to be able to perceive potential risks, the safety and well-being of riders. Volunteers and horses being paramount. It was my duty to decide when the rider is ready to attempt more challenging tasks such as trotting or riding independently. During the entire 6-year period of my high level of involvement. I have never been subject to any formal informal complaint regarding my contact with the children or anyone.

Contained on files are several references from parents of some of the applicant’s students at her riding school.
One parent, who confirmed that she was aware both that the applicant had been refused a working with children check clearance and the reasons for this, described the applicant in the following terms:

I am immensely grateful to [DAO] for the professional, thoughtful and caring coaching she gives to, not only my daughter, but to all the other students I have witnessed partaking in lessons…[DAO] displays patience and understanding and is always a positive encouragement to the students in order to extend themselves and reach their goals…I find [DAO] to be an honest, respectful, caring, hard working person who is selfless with her time and resources. She is also a loving mother who strives to give her children the best opportunities in life.

The president of a riding organisation where the applicant was a coach completed an employer reference as part of the risk assessment undertaken for the applicant. She described the applicant as follows:

[DAO] is a caring and conscientious person who puts the well-being of children and people who are disadvantaged first. She is empathetic with the children. She communicates well and she puts the children’s safety and well-being – physical and emotional – to the forefront. She is continually striving for a safe environment for the children to flourish in.

A former school principal and committee member of the riding organisation where the applicant was a coach has provided a reference in support of the applicant being granted a working with children check clearance. She writes that since 2011:

[DAO] has demonstrated exemplary interaction with all..students. She unfailingly treats them with respect, understanding and compassion.’ She confirms the supervision of teachers during riding lessons and notes that the teachers have ‘always acknowledged [DAO’s] interaction with the children with appreciation and respect.

She also notes that:

having visited [DAO’s] home, and over time observed her with her own children, I can testify that she treats her own children in a similar manner, with common sense, love and care.

A support worker and co-ordinator for one of the services where the applicant has been employed as a coach notes her awareness of the circumstances behind the refusal of the working with children check clearance and describes her as ‘a caring and kind person when working with my children [who] provides them a safe and nurturing environment to learn all aspects of working with horses.’
A mother of one of the applicant’s students and volunteer at DAO’s riding school writes:

I have known [DAO] for three and a half years. During this time, I was completely unaware there were any issues with [DAO] working with children as her above reproach attitude, her honesty and encouraging manner to both children and volunteers has never given me any reason to question her behaviour while working with children especially disabled children. This is why it is such a shock to be told there is an issue….I can honestly say I would have no hesitation to leave my children, for any reason, with her, nor would I hesitate to recommend [DAO] to any parents as I fully believe the children would never be in any danger from her…I fully believe children have a right to be safe during their childhood and despite knowing all the details of the incident that is threatening [DAOs] WWCC I still would have no hesitation recommending [DAO] to anyone.

The applicant spoke about the strong community she has in terms of her various horse-riding activities and the support she has from her sister and from her general practitioner.

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

In determining this application, the Tribunal "must consider" those factors set out in section 30 (1) of the 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 (s30 (1)(a))

The matter that caused an assessment and the refusal of the clearance was the applicant’s conviction for assault occasioning actual bodily harm to her then ten-year-old son. As is discussed above, we cannot be satisfied that the facts sheet before us is the agreed set of facts to which the applicant pleaded guilty. In the absence of a set of agreed facts or a transcript of any evidence given at sentence or any evidence by the applicant’s son, we give weight to the applicant’s statement and oral evidence to us at the Tribunal hearing.
We accept that on the evening of 25 August 2014, the applicant had been at the local showground with her seven children who then ranged in age from one to thirteen years of age.
On the evidence before us, we also accept that:

the applicant’s elder son, who was then ten years of age, told the applicant that he wanted to go home and stuck his finger up at her when told he couldn’t. In response, the applicant threatened to slap him when they were back at home.

the elder son then ran away from the applicant with the stroller containing his then one-year-old brother. The applicant called her former partner, who lived close by, for help. This was because she couldn’t both run after her elder son and leave the other children unattended.

that the applicant later found the stroller abandoned in the middle of a street with her one-year-old child still inside it.

the applicant’s former partner came home with the applicant and the other children and when the elder son arrived home sometime later, the applicant refused to let him inside until he apologised.

when the applicant did let her elder son in, she pushed him through the house with her hand on the back of his neck. She pushed him into the bedroom, pulled down her elder son’s trousers to the knees, leaving his underpants on, and asked her former partner to hold his elder son by the shoulders.

the applicant slapped her son multiple times and hard enough to leave a mark that lasted some days.

having spoken to a Legal Aid solicitor only on the day of her court appearance, the applicant pleaded guilty to assault occasioning actual bodily harm.

We find that the offence was serious as it was an assault on a child under the applicant’s authority.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

The offence occurred over three years ago. On the evidence before us, there has been no conduct of concern by the applicant since this time.

The age of the person at the time the matters occurred (s30(1)(c))

The applicant was 35 years old at the time of the offence.

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 (s30(1)(d))

The applicant’s son was ten years old at the time of the assault.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

The applicant is 25 years older than her son.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

As the victim was her son, the applicant was aware that he was a child.

The person's present age (s30(1)(g))

The applicant is 38 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

The applicant does not have any criminal record subsequent to the trigger offence.
In 2000, she pleaded guilty to obtaining a motor vehicle by deception and receiving stolen property for which she was sentenced to perform 50 hours of community service.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

We accept that in 2007 and 2008, the applicant had significant problems with alcohol abuse. We find that this occurred in the context of a difficult marriage breakdown at which time the applicant had five children under the age of seven.
On the evidence before us, we are satisfied that the applicant has remained alcohol free for close to a year and that, according to her treating psychologist, has developed a series of strategies for managing stress and distress that do not involve alcohol.
We note that consent orders were made on 9 July 2009 in the Federal Magistrates Court of Australia (as it then was) giving the applicant primary care of the five children of the marriage. In light of this, we give little weight to the affidavits filed by the applicant’s former husband and his parents in 2008, including the Notice of Child Abuse filed by her former husband. We are satisfied that these affidavits were prepared in the context of an acrimonious separation with a long history of acrimony between the applicant and her former parents-in-law and that the information contained in them has never been tested. We give greater weight to the findings of the psychiatrist, Dr Milch, in the Chapter 15 Court Expert Report dated 3 October 2008 in which he describes the applicant as a caring figure for her children and prefers her parenting to that of her ex-husband.
We give some weight to the fact that notifications have been made to FACS about the applicant. In relation to those notifications made in 2007 and 2008, we accept that the applicant had a problem with her alcohol consumption at that time.
We note the notification made to FACS in 2009 in relation to allegations that the applicant had hit one of the children and note the comments by the FACS officer that the notification had occurred during a ‘family custody battle’ and that, on the evidence before us, the case was closed without any action being taken by FACS. For this reason, we give little weight to the allegation.
We also accept that a notification was made in 2013 in relation to the applicant hitting the elder son with a horse whip and note the comments by the FACS officer in relation to the inconsistency between the versions of [the elder son] and his mother and there being no information to indicate the force used. Given that, on the evidence before us, no action was taken by FACS and no evidence provided by the elder son in relation to the allegation, we give little weight to this notification.
We give weight to the findings of the forensic psychologist that as at the date of her report, namely 22 June 2017, it was her view that the applicant poses a moderate risk of violence to either adults or children but that this was a risk that she anticipated would reduce to a low risk following further treatment.
We have had the opportunity to watch the applicant over two hearing days which involved her arranging care for her seven children, travelling some hours to the Tribunal to present her case, unrepresented, at hearing and being cross-examined at length on many facets of her life including her personal experiences of having been sexually assaulted. Her management of this situation was impressive and exemplified her treating psychologist’s view that she had developed a number of strategies to manage her stress and her distress.
We also give weight to the views of the applicant’s treating psychologist that he did not identify any potential risk to children in his sessions with the applicant.
Despite his lack of forensic qualifications, we accept that as a psychologist and mandatory reporter, the treating psychologist is qualified to make a general assessment of risk and whilst we accept that he has not had at his disposable the same material as the forensic psychologist, we give weight to his general expertise and his more in-depth knowledge of the applicant and her circumstances.
We accept that any repetition of the conduct that resulted in the trigger offence (namely the assault of her elder son) would have an impact on children. On the evidence before us, however, we are satisfied that there is little likelihood of the repetition by the applicant of any such offending behaviour. This is because we are satisfied that she is remorseful for her behaviour, has addressed any problems with alcohol abuse and has learnt strategies to ensure that she avoids unhealthy relationships. We are satisfied that she no longer uses physical discipline to manage her children and, on the evidence before us, are satisfied that she had developed positive parenting strategies and has put into effect positive strategies to manage her stress and distress.

Any information given by the applicant in, or in relation to, the application (s30(1)(j))

The applicant has provided a number of references attesting to her good character and positive relationship with children. Details of these references are set out above. We give particular weight to those referees who, with knowledge of the trigger offence, speak of their trust of the applicant in her coaching of their children.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

The Children’s Guardian has expressed concerns about the ‘toxic’ nature of the applicant’s relationship with her former de facto partner.
We accept the applicant’s evidence that her former de facto partner has minimal contact with the couple’s two children and accept that the applicant is no longer in a relationship with him. We also accept that the applicant has no desire to either resume such a relationship or to have contact with him. We give weight to the views of the treating psychologist that the applicant has developed strategies to ensure that she does not enter into unhealthy relationships in the future.

Conclusion

The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, she must be granted a working with children check clearance.
For the following reasons, we find that the applicant does not pose a real and appreciable risk to the safety of children

Whilst we are satisfied that the trigger offence was serious, we accept that it took place in stressful circumstances, namely shortly after the elder son had left his infant brother in a stroller in the middle of the road while the applicant was initially alone with her other children at the local showground.

We accept that the trigger offence was serious in its involvement of a second adult to hold the elder son while the applicant slapped him. We are satisfied that the applicant is truly remorseful for her behaviour and since the trigger offence has actively sought to improve herself and her parenting skills. We are satisfied that the applicant has not come to the attention of the authorities since the trigger offence.

We are satisfied that the applicant is no longer in a relationship with her former de facto partner and accept, on the evidence before us, that she is unlikely to enter into that or a similarly unhealthy relationship in the future. This is because, on the evidence before us, the applicant had learnt strategies to avoid such relationships and to manage stressful events in her life in a productive way.

We accept the applicant’s evidence that she has been alcohol-free for close to a year and that she retains primary care of all her seven children. We accept that the elder son has now returned to her care and that the evidence before us is that he is managing well both as the local high school and at home.

We accept the evidence of her treating psychologist that the applicant has made great progress in learning strategies to manage her stress and her parenting and give weight to his view that the applicant does not pose a risk to children.

We also give weight to the findings of the forensic psychologist that whilst at the time of her report, namely 22 June 2017, she found the applicant to be a moderate risk of violence to people, including children, it was also her view that should the applicant continue with therapy and abstain from alcohol, her assessed level of risk would likely reduce to low. It has now been some months since the forensic psychologist interviewed the applicant and we accept the evidence of the applicant and her treating psychologist that, during this time, the applicant had both continued with therapy and remained alcohol-free.

We were impressed by the fortitude of the applicant in representing herself before us and agree with the view of the treating psychologist that this in itself was proof of the positive strategies the applicant has adopted to enable her to manage stressful situations.

We also give weight to the positive references for the applicant.

For these reasons, and having considered all the evidence before us, we find that the applicant does not currently pose a real and appreciable risk to the safety of children and young people.
It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

Category of Working with Children Check Clearance

Because of a problem with the online computer application system, when the applicant applied for a working with children check clearance, she was unable to apply for a clearance that would authorise her to engage in both paid and unpaid child-related work, for which there is a fee payable. Instead, she was only permitted to apply for a clearance authorising her to engage in unpaid child-related work, for which there is no fee payable. In order to run her riding school, she would need to have a working with children check clearance, which authorises her to engage in both paid and unpaid child-related work.
Counsel for the Children’s Guardian, Ms Giacomo, advised that if the Tribunal were satisfied that the applicant does not pose a real and appreciable risk to children, the Tribunal could order that the applicant be granted a working with children check clearance to work in unpaid child-related work. Subject to the applicant providing the appropriate fee, the Children’s Guardian would then provide the applicant with a working with children check clearance that would enable her to engage in paid child-related work.
Ms Giacomo confirmed that if the applicant were granted a working with children check clearance, the Children’s Guardian would consent to the applicant changing her application to one covering both paid and unpaid child-related work, with the requirement that the applicant would pay the appropriate fee. Ms Giacomo advised that the application would then be treated, retrospectively, as an application to engage in paid child related work. Ms Giacomo accepted the applicant’s evidence that at the time of application, the applicant had attempted to apply for a working with children check clearance to authorise her to engage in paid work but was informed that she was unable to do so.
Ms Giacomo advised that this issue would be appropriately dealt with by the Tribunal in its final orders, namely by directing the Children’s Guardian to issue a clearance to the applicant for authorising her to engage in unpaid child-related work and by further directing the Children’s Guardian to grant to the applicant, upon payment of the fee payable, a working with children check clearance authorising her to engage in paid and unpaid child-related work.
We have considered Ms Giacomo’s submission but as we only have power under s27 of the Child Protection (Working with Children) Act and s63 of the Administrative Decision Review Act 1997 to review the decision and substitute a new decision, we are not satisfied that we have the power to make the suggested order. For this reason, our orders, as set out below, are simply to set aside the decision of the Children’s Guardian dated 3 April 2017 and to make a new decision that the applicant is granted a working with children check clearance.
As discussed at hearing, we note that upon payment of the fee payable, the Children’s Guardian will grant to the applicant a working with children check clearance authorising her to engage in paid and unpaid child-related work.

Orders

The orders are as follows:

The decision of the Children’s Guardian dated 3 April 2017 to refuse to grant the applicant a working with children check clearance is set aside.

In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance.

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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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

01 November 2017 - - paragraph 112 - text replaced

- paragraph 125, bullet point 4 and 7 - text replaced

Decision last updated: 01 November 2017

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Citations

DAO v Children's Guardian [2017] NSWCATAD 317

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

3

BYR v Children's Guardian [2013] NSWADT 310

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9

Commission for Young People v V [2002] NSWSC 949

Medium Neutral Citation:	DAO v Children’s Guardian [2017] NSWCATAD 317
Hearing dates:	28 July 2017; 13 September 2017
Date of orders:	01 November 2017
Decision date:	01 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Dr B Field, General Member
Decision:	(1) The decision of the Children’s Guardian dated 3 April 2017 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. (3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:	Child protection – Working with children – conviction for assault occasioning actual bodily harm – 2015 amendments not applicable – application lodged only to engage in unpaid child-related work - decision set aside.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9 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; 56 NSWLR 476 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	DAO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00108305
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.