DBS v Children's Guardian

[2018] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

DBS v Children's Guardian [2018] NSWCATAD 62

Hearing dates:

4 September 2017

Date of orders:

20 March 2018

Decision date:

20 March 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hon G Mullane ADCJ, Principal Member
Dr B Field, General Member

Decision:

(1) The decision of the Children’s Guardian of 18 April 2017 refusing 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) Publication or broadcast without the leave of the Tribunal of any name or other identifying information of the applicant, any child referred to in these reasons or any relative of the applicant referred to in these reasons is prohibited.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance

Legislation Cited:

Administrative Decisions Review Act 1997;
Child Protection (Prohibited Employment) Act, 1998;
Child Protection (Working with Children) Act 2012; Adoption Act, 2000;
Child Protection (Prohibited Employment) Act 1998

Cases Cited:

BJB v the Children's Guardian (No. 2) [2014] NSWCATD 164
Commission for Children and Young People –v- V [2002] NSWSC 949

Texts Cited:

Nil

Category:

Principal judgment

Parties:

DBS (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Giacomo (Respondent)

  Solicitors:
Self-represented (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00139541

Publication restriction:

Yes - See Orders.

REASONS FOR DECISION

Introduction

1. On 1 February 2016 the applicant applied under the Child Protection (Working with Children) Act 2012 (the Act) for a Working with Children Check Clearance (Clearance).

2. The respondent in the course of investigations formed a view that the applicant was a person subject to an assessment requirement in s 14 of the Act because Sch 1 applied to the applicant because he was a person who had been charged in Queensland with Assault Occasioning Actual Bodily Harm in 2008. The verdict was recorded as “No True Bill” and the charge was dismissed.

3. The victim was the applicant’s then 14 year old son,

4. On 18 April 2017 the Children’s Guardian determined to refuse to grant the applicant a Clearance. The applicant was notified accordingly. On 9 May 2017 the applicant applied to the Tribunal for administrative review of the decision of the Children's Guardian to refuse to grant a Clearance. Section 27 of the Act provides that a person who has been refused a Clearance can apply to the Tribunal for an administrative review.

5. The hearing occurred on 4 September 2017. The applicant did not have legal representation at the hearing.

6. The Tribunal did not announce a decision at the end of the hearing and reserved its decision. An order was made for the respondent to file and serve any further submissions by 18 September 2017.

7. The applicant was ordered to file and serve any submissions by 30 November 2017. He told the Tribunal that he would not be able to prepare submissions until November 2017. The extended period allowed to him for the filing of submissions was granted at his request because he had no legal representation or advice.

8. When the applicant had not filed submissions by 30 November 2017, at his request he was granted a further extension of time. He filed his submissions on 16 January 2018.

9. Those submissions have been taken into account in making the decision.

Relevant Legislative Provisions

10. Section 4 of the Act provides:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

11. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for the purposes of the Act.

12. Section 8 requires that a worker must not engage in child-related work unless the worker holds a Clearance of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a Clearance of a class applicable to that work. There is also provision for an “interim bar”.

13. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a Clearance of a class applicable to that work.

14. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Clearance of any class. Section 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

15. Section 12 of the Act provides that there are two classes of Clearances which are:

• Volunteer – authorising workers to engage in unpaid child-related work and

• Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

16. Section 13 provides for applications to be made to the Children's Guardian for a Clearance and requirements for the application. It provides:

13 Applications for clearances

(1) A person may apply to the Children’s Guardian for a Working with Children check clearance.

(2) An application must:

(a)    be in the form approved by the Children’s Guardian, and

(b)    be accompanied by any other information required by the Children’s Guardian, and

(c)   specify the class of clearance applied for.

(3) The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:

(a)    the conduct of a criminal record check in respect of the applicant,

(b)   the disclosure of the applicant’s criminal history,

(c)    other inquiries about the applicant relevant to the application or clearance,

(d)    without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement.

(4) The regulations may:

(a)    prescribe the fee payable for an application and the manner in which it is to be paid, and

(b)    require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.

(5) An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children’s Guardian.

17. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Sch 1 apply to the person. Paragraph 1(2)(a) of Schedule 1 is where proceedings have been commenced against the person (regardless of the outcome of the proceedings) for “an offence involving intentional wounding of, or causing bodily harm to, a child by an adult (other than an offence specified in Clause 1 of Schedule 2)”. The relevant offence was one other than an offence mentioned in cl 1 of Sch 2.

18. Accordingly, because a matter specified in Sch 1 applied, pursuant to s 14 of the Act there was an assessment requirement and the Children's Guardian proceeded pursuant to s 15 of the Act and conducted the assessment. The result was that the Children's Guardian determined that the applicant posed a risk to the safety of children.

19. Section 18 of the Act Provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons ("disqualified persons"):

(a)    a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)    a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

20. The Children’s Guardian refused the Application.

21. Section 27 is in Pt 4 of the Act and provides that a person refused a Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4) of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”

22. Section 30(1) of the Act applies to reviews. It provides:

(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 Commission considers necessary.

23. A literal interpretation of “a risk assessment … to determine whether the applicant … poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

24. In Commission for Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s 9(8) of the Child Protection (Prohibited Employment) Act 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held (at pars [41] and [42]) regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children”.

25. It is provided in s 30(1A) of the Act that:

The Tribunal may not make an order under this Part which has the effect of enabling the 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 directly 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.

26. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)    any relevant factual material,

(b)    any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)    to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)    to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Evidence

27. The evidence in the proceedings comprised:

1. Application for Administrative Review with Decision to be Reviewed and annexures attached filed 9 May 2017;

2. Bundle of documents filed by the Respondent under s 58 of the Administrative Decisions Review Act 1997 on 21 June 2017 indexed and paginated (144 pages));

3. Affidavit of the applicant sworn 11 July 2017 and annexures “A” – “J”;

4. Orders of Directions hearing on 20 July 2017;

5. Section 58 Bundle of Documents filed by the respondent on 4 August 2017 (with documents indexed and paginated (277 pages));

6. Report of Psychologist Esperanza Egan of 18 August 2017;

7. Affidavit of the Applicant sworn 30 August 2017;

8. Exhibit A1 Documents from the Samaritans;

9. Exhibit A2 file produced on subpoena from the Samaritans heavily redacted;

10. Oral Evidence of Jason Green on 4 September 2017;

11. Oral Evidence of Rebecca Kordas on 4 September 2017;

12. Oral Evidence of Esperanza Egan on 4 September 2017;

13. Oral Evidence of the applicant on 4 September 2017; and

14. Oral Evidence of Julie O’Regan of the Samaritans on 4 September 2017.

Section 30 matters

The seriousness of the matters that caused the refusal of the Clearance

28. The principal conduct that led to the refusal of the clearance was an assault by the applicant of his third child (“Child 3”) of four children on 28 May 2007. Child 3 suffers from severe epilepsy, hearing impairment and an intellectual disability. He was 14 at the time of the assault, but his intellectual level was about the same as a two year old child. When Police attempted to interview Child 3, they considered him to be “unable to communicate with Police”.

29. The applicant’s version of what happened, as he told the Police the following day in a recorded interview, was that he had been attempting to get child 3 ready for school by dressing him. Child 3 resisted and commenced kicking and scratching the applicant with his fingernails. The applicant then responded by scratching child 3 to his chest and to his back numerous times with his fingernails. He told the Police Officers that he knew this was an inappropriate form of discipline and the nature of the injuries was excessive. The scratch marks inflicted on the boy were described by a Police Officer who observed them as “long, deep and thick scratches”.

30. The child’s mother told Police that the applicant had said before injuring the child: “Well, I’ll make you get dressed” and had lost his temper. She also told the Police that the applicant had shouted at the child and “has no patience with [the child] and doesn’t understand him”.

31. She told a teacher at the school the same day as the incident:-

“[DBS] is always losing his temper with him. He has no patience with him. When he has a seizure in the night and tries to run, [DBS] sits on him and screams. He doesn’t understand child 3 needs to run. I want [DBS] to leave but he won’t. No-one believes me about what he is really like.”

32. The applicant submitted to an electronically recorded interview with Police the day after the incident. He was 46 at the time. The applicant told the Police that Child 3 is not always in the mood that he doesn’t want to go to school. He didn’t like school. He said he had a sore toe. That had occurred because he had a habit of picking at his toenails and also because of his intellectual impairment and he had done this on that occasion. He said he was still in his pyjamas and had gone back to bed and locked the bedroom door. He was underneath a sleeping bag and his blankets when DBS came into the room. DBS removed the sleeping bag and the blankets and started to take off his pyjamas. The incident as described then occurred. DBS said:

“After that I saw that child 3 was hurt.”

33. He said he swore and his wife walked into the room at the time and ‘everyone became very upset’ including himself. He said:

“I shouldn’t have done it. It was definitely the wrong thing to do”. and “I blame the two cans of beer that I had the prior night. Because from my own observation I find that if I have a beer then the next day it’s not …. cannot be, there are times when they’re not very pleasant for me. When child 3 got out I got a tea towel and wet it to basically um I don’t know, for a better word um try and make him feel better. Because I’d imagined I know what it feels like since child 3 scratched me heaps of times before”.

34. DBS said that child 3 was lying down on the bed with his legs “curled up towards himself ready to kick out”. He said that the child kicked him five or six times in DBS’s knees and legs.

35. The incident was not witnessed by anyone other than DBS and child 3.

36. DBS told the Police that he didn’t know why he scratched the boy and “I think it’s probably in my mind to react back to the fact that he scratched me and he shouldn’t get away with it. He shouldn’t be allowed to get away with abusing your parents like that”.

37. DBS said he wasn’t using force and he “wasn’t intending to really hurt him. I was just wanting him to feel like what it was like being scratched”. DBS conceded to Police that what he did to the child was not reasonable.

38. In addition to that matter there is other relevant evidence.

39. In August 1995 when the family were living in Darwin, Child 2 (a female then aged nine years of age who also suffers an intellectual impairment), alleged to a counsellor that she had been sexually assaulted by the applicant about 4 years previously. In December 1995 the same child was refusing to attend school and alleged that her “bottom is sore” and her father had been hurting her. These allegations came to the notice of the child welfare authorities and were investigated, but neither was regarded as substantiated.

40. The Queensland Department of Communities, Child Safety and Disability Services received a notification regarding Child 2 (then aged 9 years) on 18 December 1995. Child 2 told an Officer of the Department that it was reported that Child 2 had stated on 7 December 1995 that “Her father had been hurting her, her bottom was sore, and she couldn’t go to school”.

41. On 9 January 1998 a notifier, whose identity has been redacted from the records in evidence reported to the Department of Family and Community Services that the family was at risk from domestic violence by the applicant. The notifier referred to allegations by Child 2 that her father had sexually abused her when she was five years old. The notifier said the mother did not believe the allegation. An Officer interviewed Child 1 at school. She was 11 years old at the time. When asked about her home life, she said: “Dad does not take us anywhere and he screams and yells all the time”.

34. She recited all the locations where the family had lived and told the interviewer that at all these places: “Dad has screamed and yelled at everyone”. She complained that her father had put her and Child 3 fully clothed under a cold shower and left them there “for a long time” – “about five minutes”. The child denied that the applicant hit his wife. The child said that she is hit “on the bottom” with an open hand when she is naughty. She alleged that her father once held her head under water in a swimming pool “and almost drowned me”. When Child 2 had explained to her the difference between “good touches and bad touches”, Child 2 denied that anyone had touched her private parts and denied that anyone had touched her “in a bad way” or in any way she thought was wrong.

35. The child spoke about a refuge where she and the mother stayed after they had left the applicant. She told the interviewer that she did not feel safe with her father around and “it’s better when dad’s not there”.

36. The mother told the Officer that she and the applicant “love one another”.

37. In an interview on 7 April 1998 the applicant’s wife stated that their relationship is “up and down”. She said they love one another but at times “it is best that they separate”. She said that the applicant was no longer disciplining the children as at one stage he was “a little heavy handed”. She said that she was now the disciplinarian and he had taken a back step when dealing with the children.

38. On 1 September 1998 in the course of preparation of an assessment report the mother was interviewed by an Officer of the Department of Family and Community Services. She was a patient in hospital. She said she was not coping with the children. She said the applicant was unemployed and did not assist her. “He goes out all day and leaves [Child 2] to care for her younger siblings. Because of this [Child 2] misses school.” The younger children were reported by the school as not being properly washed when their mother was in hospital. When the mother was released from hospital the same day, she later expressed concerns. The mother said that she was “run down”.

39. On 10 February 1999 there was a visit by the mother, Child 3 and Child 4, the daughters of DBS, to a town office of the Office of the Department of Community Services of NSW at a country town in western NSW. They arrived without notice and the notation by the Officer is:

“All very upset describing physical and emotional abuse perpetrated by [DBS] on entire family. They explained that they are no longer able to cope and request assistance. Described a magnitude of physical abuse, emotional abuse and neglect that has been ongoing. Needs of children remain unmet”.

48. There were further investigations by the Department in February 1999 after a further notification. Child 2 told the Officer that her father no longer hits her and if an argument occurs she is “never around when it happens”. She said she is either at school or in her room, that is not attached to the house. She told the Officer that that applicant does not hit Child 3 but if he is disobedient the applicant locks him in the toilet “for time out, which is about 5 or 10 minutes”. Child 1, then attending high school, and almost 15 years of age stated that the applicant does not hit her and that if an argument occurs, she is never around when it happens, she is either at school or in her room. She said that the applicant was not hitting Child 3 and that if he “plays up” the applicant would put him in the toilet for time out, “which is about 5 or 10 minutes”. Child 1 said that her sister, Child 2 would not go to school and she didn’t know why. When asked, she said that Child 2 is not teased at school. She said that Child 2 “only likes to play with dolls and her friends are pre-school age children.

49. The Officer discussed recent concerns with the parents in the presence of Child 2 in the home. When attempts were made to speak with her, she put her head down and refused to answer.

50. Later the Officer followed the child into the backyard of the home and spoke to her there. Child 2 said that her father does not hit her any more, but he hits Child 1 and that once he held Child 3’s fingers over the stove to try and stop him from stealing. The applicant however admitted the incident, but said that the stove was not turned on.

51. When Child 2 was invited to talk about any other incidents, she did not raise any other incident. On that occasion both the parents denied allegations of physical or verbal abuse or neglect.

52. The mother of the children said that Child 2 would not go to school because she “fears if she does go to school her mother will leave while she is leaving her in the care of [DBJ]”. The parents conceded that Child 2 is sometimes smacked and once was physically dragged by the applicant to school.

53. On that occasion the applicant denied that he abuses any of the four children. He said he had done everything he could to assist them. He said he had taken the children to various medical experts to try and assist them, although it appeared that initial visits were made, there appeared to be no follow-up. The Officer noted that both Child 1 and Child 2 appeared to have intellectual disabilities. Child 2 was not attending school. The mother of the children said that DBJ was in the habit of yelling and losing his temper with the children. Child 3 expressed fear of DBJ’s temper. The Officer concluded that the children were not at immediate risk in the home and that the applicant was not presently physically aggressive towards the children.

54. A decision was made to have all four children assessed by a psychologist. The parents agreed that this was needed. The Officer noted that the family appeared to be under quite a lot of stress with the children and it “appears that they do not have the capability to handle this situation on their own without some support”. It was proposed that further support would be provided by the Department and that the children would be psychologically assessed.

55. On 19 March 1999 there was a report at that time that Child 3 had been exhibiting unusual behaviour, including defecating in public. At the time he was seven years of age. It had been reported that the applicant was hitting, slapping, verbally abusing, denigrating and blaming the children and perpetrating other forms of abuse. The children were also reported to be dirty with offensive odour. The matter was closed at that time because of a shortage of experienced staff. It was recorded that the mother had contacted a refuge with Family Support Services enquiring about accommodation. Extensive other complaints were conveyed to the Officer by [the mother] and [Child 2]. [Child 2] on a previous occasion had told the same Officer that she wanted her father to leave home and that he had been mean to her brother and she was concerned that he would make her mother “go away and never come back”. The mother had told the Officer that there were frequent issues and she was in financial need as [DBS] did not give her any money and was unemployed. She alleged there had been some sexual abuse from him towards her in the past. She complained of [DBS] abusing her and the children in the past and said she felt “continually demeaned and put down” by [DBS] to the extent that she felt unable to copy alone and had very low self-esteem/self-worth”.

56. On 12 May 1999 an Officer of the Department reported that she had seen the children’s mother and Child 2 that day and:

“They both report things are ‘bad’ again. [The mother] was in tears at the worry about her kids being unhappy – [Child 2] is refusing to come to school again after some success getting her there the last couple of weeks – [the mother] is getting more concerned about [Child 4] refusing to eat, and [Child 1] removing herself from the family at every opportunity, and child 3 being punished by [DBS] frequently some mention of child 3 being pushed/shaken against a wardrobe and having his fingers burnt on the stove.”

57. On 13 July 1999 Mr John Flockton, clinical psychologist, issued his assessment of the applicant, his wife and Child 2. He noted that child 2 has ADHD, specific learning difficulties, extremely poor social adjustment and difficulties with behavioural control. Child 2 spoke freely with the psychologist in interview, although in a rather disordered manner. When invited, she expressed affection for her mother and said that her mother helps her when asked. She could not think of any negative attributes for her mother. In contrast she said: “Her father did not help her when she asked, such as fixing her dolly or going to school.” She said he did respond: “Only if I yell at him, then he takes me to my friend’s place”. She made a number of comments in relation to her siblings, her sister Child 1 and her brother Child 3 which the psychologist considered were consistent with typical interactions between brothers and sisters. Mr Flockton in his report under the heading “History Given” reported:

“17. In a deliberately non-directive approach regarding prior allegations of sexual abuse by her father, [Child 2] restricted her comments to her father attempting to drown her in a pool in Darwin and putting her under a cold shower, “that was all”. She then added that at times her father smacks both herself and child 3. She referred to a comment by child 3 apparently made on the journey to Wagga Wagga in which he suggested the family could live without their father and that “it’s a good idea”.

18. When given the opportunity to make further comments or allegations with regard to possible sexual abuse, [Child 2] did not do so. When asked what she would do if such abuse did occur, she said “no idea – I haven’t really thought about it – there's no reason to”.”

58. She also said that her mother oversees her medication and that her father was not involved.

59. The psychologist reported that the parents considered her academic achievement to be worse than any age-related peers, as was her social adjustment. They expressed concerns regarding her “refusal to accept life in general” and her significant hearing loss. They made positive comments about her focusing on her ability to take responsibility for young children up to two years of age and ensure their safety.

60. Mr Flockton also reported:

“22.   Endorsed responses across the behavioural profile are again consistent with those mentioned by her parents. This includes a range of defiant and disruptive behaviours including; arguing, bragging, difficulties with concentration, destroying her own belongings and being disobedient at home. Also of note is [Child 2’s] feelings that she is unloved, in addition to truancy, continual sleeping during the day while not at school and preference for being with younger children.

23.   The overall profile emerging from the CBCL is consistent with behavioural disturbance and attentional difficulties reflected in a prior diagnosis of ADHD. In addition, the degree of impairment in general social functioning as well as academic adjustment is of concern, particularly as [Child 2] enters further into adolescence and early adulthood.”

61. Mr Flockton found that although Child 1 was almost 13 years of age, her basic reading age equivalent was 7.3 years, her ability in mathematics reasoning was 7 years and her ability in spelling was 7.6 years. She had a mild development disability in each of those areas.

62. In his conclusions, Mr Flockton stated that the exercise did not give him any “undue concern in relation to the management” as to the parents’ management of their four children, particularly Child 2. “They both offered consistent concern in relation to her behaviour and seemed generally helpless to bring about significant change, particularly with regard to school attendance”.

63. He said he could find no further evidence in relation to Child 2’s reported prior allegations of sexual abuse by her father. He said: “[DBS] in fact volunteered information candidly and one can only suspect honest manner in relation to the claims made, with this not being contradicted by his wife”.

64. One of his conclusions was that Child 2’s prognosis is compromised by intellectual disability, particularly literacy and numeracy being some six years below age expectations. He said that this is likely to impair social and behavioural adjustment and could account in part for her resistance to attending school.

65. He said that at the present time the best option might be to provide immediate support for DBS and his wife in their efforts to enforce Child 2’s attendance at school. He said: “This would be aided by her compliance with appropriate medication as prescribed by [her doctor] in order to bring about better management of attentional and impulse control difficulties”.

66. He also recommended that Child 2 have appropriate counselling “focused on concerns raised in the current report. The therapeutic process may however be difficult in the initial period due to her attentional difficulties and heightened distractibility, although her presentation during individual interview suggests she is likely to respond more positively to initial 30 minute counselling sessions”.

67. Mr Flockton recommended to the Department as follows:-

“31.1   Immediate support to DBS and Mrs DBS in consultation with the school to implement strategies designed to ensure [Child 2’s] attendance. Three sessions with the parents should be sufficient for this purpose and provide them with adequate structured support to deal with [Child 2’s] more extreme behavioural difficulties.

31.2   Individual counselling as specified for [Child 2] on a weekly basis for an initial period of three months.

31.3   Individual or small group teaching/learning of literacy and numeracy is essential. Given the confirmed diagnosis of ADHD it is extremely unlikely [Child 2] would make a successful return to mainstream class environment without considerable additional support.

31.4   Recommendations 31.1 and 31.2 are predicated on appropriate compliance by [Child 2] with medication prescribed by Dr Preddy. It is considered that unless this can be assured, limited progress could be expected as a result of the joint impact of mild intellectual disability as well as a diagnosed attentional disorder.”

68. Unfortunately, Mr Flockton did not clearly state what written material was provided to him. Obviously he did not have records made after 13 July 1999, the date of his report. The Assault of 28 May 2007 was yet to occur.

69. There was an assessment by an Officer of the Queensland Department and a Detective Sergeant from the Queensland Child Abuse Unit and they conducted a home visit in Queensland on 6 September 2000. The parents were not home but Child 4, a boy, was present.

70. There was a subsequent interview of both the parents of the children at the home on 8 September 2000. The conclusions reached by the officers from that interview included:

• “Although Child 3 is 8 (eight) years old, he has the cognitive abilities of a 4 – 5 year old;

• He is a “Houdini” in that he climbs fences, gets on the roof and also is able to get into the pool by climbing and opening the pool fence;

• He attends a specialist school and has Level 6 support needs;

• He plays each parent off against the other;

• [DBS] found it difficult to manage the behaviours that are part of Child 3’s disability and reacts worse when he is stressed;

• It is currently a stressful time as they moved to a town in Queensland only four weeks ago because of work and since that time the applicant has lost his job;

• Child 3 “drives [DBS] mad” and “is always seeking attention from him”;

• That as punishment for Child 3’s behaviour, which includes throwing tantrums, not going to bed when told, generally being non-compliant, Child 3 gets picked up by the collar and put into his room and gets his backside smacked. He denied having picked him up by the throat, or that Child 3 cannot breathe when he does this;

• That the applicant and [the mother] see differently when it comes to parenting; he is stricter than the mother;

• That the mother thinks he has Obsessive Compulsive Disorder, although he has not been diagnosed with this and he is unpredictable and has mood swings;

• That he has enquired about anger management classes and thinks that he will get some benefit from attending something like this;

• That when things are stressed at home one thing escalates into another, and instead of reacting in anger, he is trying to ignore things and go for a walk;

• Mornings are the worst time of the day when they are trying to get everyone ready for school. The applicant stated that the second daughter, Child 2, also has an intellectual disability and there are many morning battles;

• That his parents were very hard on him when he was a child and he supposes that he has followed in his father’s footsteps, of being strict;

• They need to physically restrain Child 3 to give him his medication. [DBS] stated that Child 3 is on Dilantin for epilepsy and the timing of administration of his medication is critical. [DBS] said that if [Child 3] does not have his medication when he is supposed to, he risks having seizures, which are difficult to get under control again;

• [DBS] stated that the last time [Child 3] had a seizure was about four weeks ago and is due to have an MRI next week;

• [DBS] said that his aim is to give his children an education so that they can get somewhere in life;

• [DBS] said he does not show his feelings and keeps his emotions inside. He stated that he knows he should show more affection, but does not feel comfortable doing this;

• He was in the Army for a number of years and believes that his children should do as they are told. [DBS] stated that there should be punishments if they do not; and

• [DBS] said that he and his wife have very different parenting styles, and that his wife is too soft on the children and lets them get away with too much. He stated that [Child 3] knows he is not to throw toys in the pool and [DBS] does not see anything wrong with making [Child 3] go into the pool to get the toys out when he throws them in. He said that if it is cold, then [Child 3] will learn not to do it again.”

71. The Officer considered that [DBS] applicant presented as a “very authoritarian parent, in that he expected his children to do what they told and respect him, as he is the adult in the home”. [DBS] acknowledged that [Child 3’s] intellectual disability impacts on his behaviour, but appeared to still expect [Child 3] to act as an eight year old child.

72. During the same interview the mother of the children provided the following information that was recorded by the Officers:

• “[Child 3] is attention seeking purely for the reason that he wants attention from his father and will do anything to get it;

• That [Child 3] has worked out that the only way to get attention from his father is to be naughty;

• That the mother does not get any respite for [Child 3]. She said that they had respite on one occasion when they were living in …. but [Child 3’s] behaviour became very difficult to manage after this, so they did not seek respite again;

• She has been trying to tell the applicant that he needs to be consistent with [Child 3] as he is testing boundaries all the time. She said that [DBS] will ignore negative behaviour for ages until he has had enough and then he explodes;

• She finds it difficult to talk with [DBS] about the children as he is so focused on them doing the right thing, while she believes that all the children want is love and attention and caring;

• That [DBS] takes things personally when things go wrong and he believes it must be his fault;

• That things are currently worse now as [DBS] is not working and is stressed about this;

• That she does not agree with [DBS]’ way of disciplining [Child 3]. She does not believe that [Child 3] needs to be picked up around the throat to make him go to his room. She said that she also disagrees with [DBS] making [Child 3] go into the pool to get toys out;

• These things have only been happening since [DBS] lost his job and she knows that things will get better once he goes out and does something, either finds a job or goes to TAFE; and

• That [DBS] needs to remember that although [Child 3] is eight years old, he is only really four years old in the way he sees the world and thinks about things, and that [DBS] expects too much from him.”

73. Child 3 was interviewed by the Officers in the home. They reported:

“[child 3] presented as a very active child who actively sought out his parents’ attention. [Child 3’s] verbal skills were limited and he did not speak in full sentences. Whilst talking to [child 3]the only information he provided was ‘Daddy hurt me’. He did not describe what his father had done to him, or when this had occurred. The interaction observed between [child 3]and his mother was warm and demonstrative, with his mother providing close physical contact with him. During this interview, [DBS] was outside working on something in the garage. He did not come into the house while we were speaking with child 3.”

74. The Officers listed the following risk factors for the family:

• “Child 2 and [child 3] have intellectual disabilities;

• The father appears to have limited insight into the impact of Child 3’s disability on his behaviour and understanding;

• The family have only recently moved to the Sunshine Coast and are isolated from community support;

• The father has recently become unemployed which has placed further stress on the family, including financially; and

• The parents have different parenting styles which creates conflict in the home.”

75. The Officers noted that [DBS] “has sought out assistance for his anger management issues” and the family are keen to receive support from Disability Services Queensland (DSQ) and the mother was insightful of Child 3’s needs and limitations and protective of him. The Tribunal has no evidence of DBS undertaking any therapy, counselling or course to address anger management.

76. Unfortunately, when the family then moved to Queensland and the Department of Family and Community Services (NSW) ceased its involvement. The Queensland Department of Community, Child Safety and Disability Services recorded that on 15 September 2000 a complaint was made in relation to DBS and an investigation and assessment was completed. The record states:

“The investigation revealed the subject child had been diagnosed with an intellectual disability and epilepsy. As a result, the child had high support needs as well as some behaviours. The subject child attended a school for children with disabilities.

1.   It was alleged the applicant punished the subject child by grabbing the child around the throat, however the applicant denies this occurred and stated he would pick the child up by the collar and put him in his room.

2.   The applicant isolated the child in his bedroom and used physical discipline such as hitting in order to manage behaviour.

3.   The applicant had an authoritarian parenting style and admitted to being unwilling to show the child warmth and emotion.

4.   It was revealed that the applicant’s expectations of the child in terms of understanding and behaviour were unrealistic given the child’s level of disability.

5.   The applicant and other parent acknowledged they had differing views on parenting and different parenting approaches and this created family conflict and stress.

6.   The applicant was under stress at the time of the concerns being recorded, due to employment issues.

7.   The family also had another child with intellectual disabilities which exacerbated the family stressors.

8.   The applicant stated he was willing to undertake anger management counselling and both parents were willing to be referred to Disability Services Queensland for support.

9.   The child was assessed as a child not in need of protection due to an assessment that the other parent was a protective factor within the home, and the family’s willingness to be referred to services.”

77. There is no evidence that DBS has undertaken any anger management counselling.

78. The Children's Guardian alleges, and the information from Child Safety includes, admissions by the applicant regarding his anger and stress. He agreed to address that through counselling. During the risk assessment by the Children's Guardian, this was raised with him and he alleged that he had attended “Family Counselling”. He was requested to provide details of that as part of his submission, but did not do so.

79. Evidence from Relationships Australia indicates that eight occasions of counselling were provided between 2012 – 2017 inclusive for DBS and at times for him and his first wife. Notes from the counselling sessions have also been put in evidence. None of those occasions of counselling involved any therapy or counselling of DBS in relation to abusive conduct towards children or adults.

80. There was a notification to the Queensland Department on 2 March 2001. The concern raised was:

“This morning the father punched the child in the stomach. The child has epilepsy and autism. The father does not cope with the child’s behaviours. The father sometimes squeezes his child’s face very hard. The father has not physically hurt the child for a while. Last year he threw him in the pool – because the child had thrown a pair of scissors into the pool. Once child was climbing out car window – instead of stopping the car the father just yanked him and caused bruising to his ribs. The father has previously slapped the child on the face and hit him on the arm. The mother feels that she can only offer the child some protection from his father – who does this by trying to minimise the impact of the child’s behaviour on the father. The mother feels concerned for the child’s safety when he is alone with the father – she has to leave him at home when she goes shopping as he is too difficult to manage in a shopping centre”. In previous interviews, and in his oral evidence, DBS denied any sexual assault of Child 2. He said that he believed that his first wife had encouraged Child 2 to make such allegations against him.

81. When asked about the allegation of him placing Child 2 and Child 3 under a cold shower for five minutes, he said that he had put Child 4 into a cold shower when he was having a febrile convulsion.

82. He denied he ever abused the children’s mother and denied that the children were afraid of him. He denied he slapped her or any of the children. He denied emotional abuse by way of denigrating or blaming.

83. He denied that he “went out all day and left his wife to care for the children”. He said “it may have appeared so” as he had his own business and it was often working for long hours away from home. He denied that he asked Child 1 to care for the other children. He also denied his first wife’s complaints that he did not wash the children properly when she was in hospital. He conceded that he did for a while divert phone calls to the home to his mobile phone. He said after they rang a couple of times before the diversion. He said he did this so he could get the business calls. He denied that it was to stop his first wife getting calls. He denied that he force-fed Child 3 and often said that his wife at the time force-fed Child 3 his medicine.

84. He denied a suggestion that he raped his first wife. He said she was also making a similar allegation against his brothers. He denied pushing Child 3 against the wardrobe and denied picking him up by his collar, but conceded that he “grabbed him by the collar”. He conceded that in 2001 he tapped Child 3 on the stomach. He said it was a reaction to the child punching him in the stomach with a closed fist.

The period of time since those matters occurred and the conduct of the person since they occurred

85. The trigger matter occurred more than 10 years ago. The earlier matters occurred even longer ago. Since the trigger matter there has been no criminal conviction or charge against DBS.

86. His first wife left him In December 2007. In mid-2011 he commenced cohabitation with his present wife whom he had known since 2008. When she met him after his separation from his wife, he had the care of 3 of his children; Child 2, who was 21 and living relatively independently in a caravan park, Child 3, then 16 and attending a special school, and child 4 who was 17 and attending high school in year 12. Child 1 was by then 23 and living independently.

87. There was a risk assessment by the Department of Community Services in relation to child 3 by the Queensland Department of Communities, Child Safety and Disability Services which is dated 15 July 2008. [child 3] had taken with a meal a dose of his medication from a blister pack when he had already taken that medication. It appears that the assessors did not consider that child 3 was at risk in his father’s care.

88. In July 2016 DBS made his application to the Children’s guardian and said he was seeking a clearance so he and his wife could have unsupervised access with his 2 grandsons to his daughter child 1, who were aged four and two. He was advised that because both grandchildren were in the care of the minister, he did not need a clearance and invited to withdraw his application, but he refused to do so. Without legal advice, the fact that he had obtained a clearance under ACT laws may have encouraged him to persist under NSW law.

The age of the person at the time the matters occurred

89. At the time of the trigger offence DBS was 47 years of age. He was younger when the earlier matters occurred.

The age of each victim of any relevant conduct at the time it occurred and any matters relating to the vulnerability of the victim

90. Child 3 was 14 years of age at the time of the trigger matter and was vulnerable as he was a child of DBS and suffered from intellectual handicap, epilepsy, his hearing problem and inability to communicate.

The Difference in Age Between the Victim and the Person and the Relationship Between Them

91. The difference in age was 32 years. The relationship was that DBS was the father of the victim. The difference in age between the victim and the person was 32 years and the victim was the child of DBS.

Whether the person knew of could reasonably have known that the victim was a child

92. DBS knew that Child 3 was a child.

The person’s present age

93. DBS is now 57 years of age.

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

94. DBS has no criminal record. It is more than 10 years since the trigger matter occurred and there have been no criminal charges or other adverse events in those 10 years. In July 2009 DBS moved in with his present wife and her daughter in a regional town in southern NSW. DBS married his second wife in September 2013.

95. An affidavit was sworn by DBS on 7 June 2016. At that time he had been working at a company for 7½ years as a Senior Technical Manager in Engineering. Prior to that he was a carer for Child 3 for three years. By that time he had no children living with him and he said: “I have no reason to attend any rehabilitation services”.

96. He said in his affidavit that his grandsons are under the sole parental responsibility of the Minister for Family and Community Services (NSW) and in foster care through The Samaritans until they attain the age of 18. He said he has financially assisted his daughter Child 1 and she has a rental property, has completed the theory element of a Certificate III in Early Childhood Education and is actively seeking employment for completion of the practical section.

97. His evidence is that Child 4 completed Year 12 at high school and has attended the University of Technology doing a Bachelor of Engineering – Mechatronics three year course and completed an apprenticeship. He is enrolled in a Diploma of Leadership and Management at Queensland TAFE sponsored by his current employment.

98. His evidence is that he continues to support Child 3 “successfully transitioning to Challenge Services Group House” and says that Child 3 is being considered “for Adult Education Classes at Challenge Services”.

99. His evidence is that while Child 2 has recently been under the care of her mother, he has assisted her financially with repayments of debts and unreturned dress hire costs.

100. His evidence is that he has completed “Recognition and Dealing With Emotional and Well-Being Workshops” with his present wife including:

1. Cognitive Behaviour Therapy,

2. Neurolinguistics Programming Language;

3. Conscious Breathing;

4. Passion Test; and

5. Yoga Relaxation and Meditation Sessions.

101. He says that he has successfully completed a Toast Masters Course with his current employer and while working full time has completed his Advanced Diploma in Electronics from the Canberra Institute of Technology and was in 2017 in the final year of completing a Bachelor of Engineering Honours Degree at Australian National University. He says that he has maintained a credit average and his thesis is based on preventing deaths of adults and children in landmine affected areas worldwide.

102. He described his relationship with his wife as “strong, stable, supporting and loving”. He says his employment is financially secure and stable.

103. There is evidence in his statement of April 2016 from the Deputy Principal of the special school Child 3 attended for more than eight years until October 2008. He says he had many meetings with DBS and his family and:

“I recognised him as a caring and thoughtful father with a great deal of patience and tolerance to the needs of his children. [DBS] was able to respond sensitively and intelligently to at times, extreme behavioural needs of [child 3].”

104. His experience was that DBS was always able to remain “level headed” in difficult times and this “balance” was “instrumental in helping to maintain the wellness of his whole family and support the needs of child 3 at the same time”. He says that DBS was always “able to work closely in productively with teachers and others in the school team”. He said that DBS followed up on school recommendations and assisted the school with plans and strategies to assist [Child 3]. He said: “I always found [DBS] to be easy to work with, being child centred and educationally oriented.”

105. There was a reference of June 2016 by the Senior Systems Engineer at the employer of DBS. He had known him in the workplace for more than nine years at that time. He had found him to be hard working and conscientious at work. He found that he was able to “work well with others and dealt very well with stress”. He said: “He was reliable, self-motivated, with thorough attention to detail.” He said:

“He works well either independently or closely with others. [DBS] is always happy to assist others and I am impressed with his approach and attitude towards work. This is seen in his strong annual review results placing him well above average performance.”

106. He said that DBS possesses qualities of patience and empathy and “is calm and is always considerate towards others”. He also said DBS was able to deal well with stress and “dedicated to giving all that he can to his family and making sure that he maintains a good work/life balance”. He said there have never been any concerns about his character or behaviour in the workplace.

107. The applicant’s stepdaughter was 16 when she became a member the household of DBS and her mother. From very early she found him to be “the most compassionate, caring and loving man I could have hoped my mother to meet”. He has since been prominent and supportive in her life and in the life of her brother. She described him as providing “a father’s love and care” towards her, her brother and his own children. She says he is “always being as involved as possible in his four children’s lives”.

108. DBS and his second wife married on 8 September 2013. There is a reference of 11 July 2017 from his second wife. She praises his way of responding to the challenging behaviours of Child 2 and Child 3 and describes his responses to them “always in a very patient, understanding, respectful, compassionate way”. She said that he is always concerned with his children’s welfare, growth and success and does all he can to support them.

109. Her evidence is that at the end of October 2008 DBS moved to Queanbeyan and arranged for Child 3 to move to Dubbo to sheltered accommodation. Child 4 decided to remain in Queensland to complete his Year 12 studies.

110. Her evidence is that DBS often drove six hours from Queanbeyan to Dubbo for any emergency concerning Child 3 and also for the birth of his two grandsons. She describes him as “the most kind, romantic, compassionate, loving, honest, patient, empathetic, giving, caring, understanding man I know”.

111. She also says in her evidence that “he has not once in their relationship ever raised his voice, got angry or been abusive in any way shape or form”. She says that he gives her encouragement and financial support and has become “my best friend and confidante”. She also says that he is a “likeable, friendly person with a quirky sense of humour”.

112. The Senior Systems Engineer with the employer of DBS had worked with DBS for more than nine years when he signed his statement in June 2016. He describes DBS as hard working and says he “is conscientious in his work, able to work well with others, and deals very well with stress.” He also states:

He has proven to be reliable, self-motivated, with thorough attention to detail. He works well either independently or closely with others. [DBS] is always happy to assist others and I am impressed with his approach and attitude to work. This is seen in his strong annual review results placing him well above average performance.

DBS possesses qualities such as patience and empathy. He is calm and is always considerate towards others. He is able to deal well with stress, taking things in his stride that would often upset others. DBS is dedicated to giving all he can to his family and making sure that he maintains a good work-life balance. There have never been any concerns about [DBS’s] character in the workplace.

113. There is evidence from a supervisor with the employer of DBS. He has worked with him for seven years and says:-

“He has proved himself to be a kind, considerate and well-mannered man with a good sense of humour and easy-going attitude. He is well spoken, great communicator and in the workplace, he has provided advice and assistance when needed doing so whole heartedly and notably, through to the end. I know that through conversation [DBS] also extends in relationships outside of the workplace, relating well with various personalities and age groups.

[DBS] has also demonstrated and is respected as a man of principal and as a man that appreciates the importance of family.”

114. Mr R has known DBS since August 2005, when he interviewed him for employment. After several months working with him, he invited DBS to share with him and another worker in a shared house agreement and they did so from December 2005 to December 2006. He worked closely with DBS in the daytime five days a week, and lived in close proximity seven days per week. He describes DBS as “a fine man, he is sensitive, kind, unfailingly polite and I have not seen him angry nor have I heard him raise a voice”. He says that he has observed DBS “on the phone on a daily basis providing a soothing and comforting voice to assist [child 3] through his daily difficulties. What I would consider an immense emotional toll, [DBS] took in his stride every day. I clearly recollect [DBS] being an attentive and supportive father and husband to his then wife and children, as much as one can while living and working in a different state.” .

115. Mr R also describes DBS as “a model citizen who does the best that he can every single day”.

116. There is also evidence from the Regional Manager Service Access of the Queensland Department of Communities, Child Safety and Disability Services. He says that the family of DBS are approved to receive funding and support through 2006 through Disability Service Queensland’s Family Support Program Children 2006.

114. He said that the family was prioritised for support when the child had high and complex support needs: the family (parents and siblings) had additional and significant support needs that impact on their ability to care for their child with a disability and the child’s support needs were not being met by the existing service system. He said that at the time the result of the support needed for Child 3 in all areas of his life and his history of very challenging behaviour which had resulted in him having reduced access to the education system and being banned from accessing public transport.

115. Child 3’s neurologist had advised the family that he had trialled all combinations of medication available and that the only other option for possible control of Child 3’s seizures was the installation of a vagal nerve stimulator. He said, “The family used the most of the funding they received to purchase in-home and centre-based respite and further funding was provided to cover medical, education and transport costs. They also were assisted with the support of a psychologist and ongoing case management services were provided. Child 3’s parents consistently indicated that providing ongoing care was incredibly stressful and that without this support they would find it difficult to continue in their role.re for [Child 3].”

116. He related that when the parents separated in 2007, DBS was sole carer for Child 3 for 10 months till he moved to Canberra to take up employment there. And the mother assumed care of Child 3 until he was placed with Challenge Community Services in Mudgee.

117. The Operations Manager for Challenge Community Services says that since Child 3 has been living in supported care in their organisation since 2013, DBS has had many interactions with staff while visiting Child 3 and also had Child 3 go and stay with him for extended periods of time. He described DBS as always being “caring, attentive and kind to Child 3 and the staff during his visits”.

118. Mr and Mrs G provided DBS with a statement dated 9 July 2017 .Mrs G is the sister of DBS. They live in ACT. They are aware of the allegation against DBS f sexual assault of one of his daughters. When they were establishing a restaurant in 2004/2005, DBS often minded their daughters aged 10 and 11 in their home while Mr and Mrs G worked in the restaurant. Mr and Mrs G would not hesitate to have DBS mind children and say the allegation is completely inconsistent with their long experience of DBS.

119. Mr G in oral evidence said that he did not know whether the allegations against DBS concerning the assault on Child 3 were true or untrue, but the conduct was completely out of character with his knowledge of DBS. He said DBS had not denied the allegation about assault on child 3, but had said that “he reacted to something”.

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

123. The impact on a child of a repetition of an incident of the same type as the trigger matter would be traumatic and likely to have lasting adverse physical psychological and emotional effects on a child.

124. The evidence establishes that until the trigger matter in May 2007 DBS had difficulty at times and could not cope with the conduct and management needs of Child 3 without anger and physical force.

125. The are two aspects of the past conduct of DBS that are of concern. One is his conduct in May 2007 when dealing with his son Child 3. The other is a general problem that he had prior to that in terms of managing the behaviour of his children and disciplining them. He was prone to anger and use of excessive force in disciplining the children.

126. A major contributor to both of these problems is the particular circumstances of his family and his four children. In particular there were the serious intellectual impairments of Child 2 and Child 3, the behaviour problems arising from that and from other impairments, the deafness Child 3 suffered, severe epilepsy Child 3 suffered, and other impairments that Child 2 suffered including severe autism. These difficulties and the conflict between the parents over their different parenting approaches contributed to conflict in the family and also to the difficulties managing the children’s behaviour. There was also aggravation in terms of the periods when DBS was unemployed and the times when the family experienced financial difficulties.

127. These coinciding circumstances were quite extraordinary. They were circumstances very few families would encounter and it would be very rare for any family to suffer the coincidence of those difficulties or coincidence of a series of circumstances that resulted in such serious difficulties for the adults.

128. In 2007 he experienced a salutary lesson when he was charged, committed to trial by a magistrate and then tried before a jury in the District Court for the offence of assault occasioning actual bodily harm on his son. In addition, what appears to have been a very unhappy marriage with his first wife ended when they separated in 2008 within months of his trial. His life appears to have changed much for the better by him entering a very positive, loving and supportive relationship with his present wife. He also attained stability and security, advanced tertiary qualifications, advancement in his career and security of employment, better financial circumstances, and very positive and supportive relationship with his new wife and her two children, and apparently positive and very supportive relationships with his two sons and Child 2.

129. That coincidence of difficulties that applied at the time of the trigger matter has not applied to DBS for more than 10 years and is unlikely to ever apply to him again. He has no conviction for any criminal offence in his 57 years.

130. In August 2017 a psychologist, Ms Esperanza Egan produced a report for DBS at his request “for the purpose of having unsupervised visitation rights for his grandchildren”.

131. The psychologist, for purposes of preparing the report, had two interviews with DBS. His wife attended one of those. The psychologist also had a telephone conversation with her daughter, the step-daughter of DBS, then aged 26 years.

132. The psychologist also read, it appears, all the documents relied upon by DBS or the Children's Guardian in these proceedings, except documents filed after 18 August 2017, the date of the report of the psychologist. Those documents comprise the affidavit of DBS sworn 30 August 2017 and also read documents provided to her. The description of the documents does not precisely identify the documents in a way that it would enable the Tribunal to determine whether all of the relevant documents before the Tribunal were made available to the psychologist. However, there was no objection taken on this point and so the Tribunal assumes that the psychologist had available to her all the relevant documents that the Tribunal had.

133. When referring to the trigger incident in 2007 Ms Egan reported:

“It is important to note that this incident took place at a time of high stress for [DBS] and his first wife …. [DBS] was having to travel three hours per day to work. He was looking for other work; there were mounting financial pressures; and the house the family was occupying had recently flooded and required attention. Whilst these circumstances do not in any way justify [DBS’s] behaviour towards his son ….. they do provide some insight into the levels of stress required for [DBS] to be at risk of mental illness and/of poor impulse control.

Also around this time in 2006 [DBS] was diagnosed with depression and prescribed Zoloft for a few months.”

134. Ms Egan also reported a change in the life of DBS since he married his present wife. She described their marriage as “strong, stable and supportive” and reported “they have engaged in activities of personal growth including cognitive behaviour therapy meetings”.

135. In addition, for the most part she reported other factors of change:

“For the most part he has had a continuous work life since marriage. In relation to his work, he has been in continuous employment with his current employer since 10 November 2008 as a Senior Technical Officer and was about to be upgraded to Electronics Engineer upon completion of his bachelor’s degree. He completed the Advanced Diploma in Engineering – Electronics in 2009-2011 at the Canberra Institute of Technology. His consumption of alcohol has declined since his present marriage. He has not been diagnosed with depression since 2006.”

136. On mental health examination Ms Egan reported that no behavioural abnormalities were noted and that he presented as:

“A friendly and relaxed demeanour towards the assessor. [DBS] readily provides copious information, in a free-spoken and candid manner. While most of the information is relevant and on point some of the commentary is peculiar”.

137. She said that he:

“Consistently presents as content and stable, with little noticeable mood changes throughout the course of the three interviews held for the purpose of this assessment”.

138. She also reported:

“Regarding his affect, [DBS’s] presentation sometimes appears incongruent with his thought content, with periodic expressions of inappropriate and blunted affect. For example, when: (i) talking about having been sexually abused; and (ii) describing overdosing on “stress medication: due to a relationship break-up. [DBS] is aware of this discrepancy, which he expresses as “I feel I should feel more upset, and I don’t.” the relevant of this affect presentation is further explored in the Mental Health Formulation section on page 12 of this report.

From another perspective however, [DBS] does exhibit appropriate signs of emotional discomfort, such as when talking about his awareness of it being wrong of him: (i) to scratch child 3 – leading to the charge of Assault Occasioning Actual Bodily Harm; (ii) to throw [Child 2] in the pool, and to smack her bottom to “break a pattern” of misbehaviour; and (iii) to threaten to put [Child 3’s] hand on the stove – even though it was off at the time. The relevance of this affect presentation is further explored in the Judgement section on page 12 of this report.”

139. In relation to his thought content, Ms Egan reported:

“[DBS] is largely preoccupied with:- (i) completing the WWCC process with a view to gaining unsupervised visitation rights for his grandchildren. In this regard, he provides ample information on relevant issues explored during the assessment; (ii) completion of his current studies; and (iii) his family life with [his wife]

Nil thought content disturbances noted (when present, they may be indicative of psychotic disorders, amongst others).”

140. She also reported that there were no perception disturbances noted and he exhibited appropriate “alertness, orientation and attention”.

141. Ms Egan reported that DBS exhibits a good degree of insight into his mental condition, “as seen for instance, in his awareness of the gap between his thought content and his affect”. She said:

“In relation to matters relevant to his WWCC application, such as appropriate ways of disciplining children, [DBS] also shows a degree of insight regarding the gap between his learned behaviours and what is expected of parents and carers in today’s society.

An example reflecting this insight is [DBS’s] acknowledgement that even though his intention was to bring up his children correctly, he knows “it is not OK” to have acted as he did regarding his children, and he felt remorse for his actions. [DBS] has also applied this insight on a recent occasion when stayed with [DBS] and [DBS’s wife]. [DBS] recalls during one such visit – especially in view of [Child 3’s] special needs – that [Child 3’s] behaviour was quite challenging and difficult. On this occasion, DBS was able to recognise the limits of his own capacities to manage child 3, and opted for reaching out to [DBS’s wife], and to [Child 3’s] carers, for additional support.”

142. Ms Egan concluded that there was no disturbance to the capacity of DBS to make sound, reasoned and responsible decisions. She said that he: “displayed sound judgment regarding employment, financial and day to day living decisions”.

143. Unfortunately, in arriving at a risk assessment, it appears that Ms Egan was misled by DBS. It appears that she was instructed to prepare a risk assessment of harm to the grandchildren of DBS if they were in his care, whereas the issue for the Tribunal is whether DBS poses a risk to the safety of children generally.

144. She found that in assessing risk to the grandchildren of physical / psychological harm to the grandchildren DBS was low rating in terms of static risk factors and no loading for clinical items or dynamic factors. She also drew attention to the protective factors which favoured the assessment of DBS comprising: -

“1    For the most part a stress-free environment: financial stability; strong stable and loving relationship with wife; work stability; and optimism for the future – looking forward to completing engineering degree in 2017.

2   Clearly expresses a desire to adapt to change when in the face of challenging situations which allows for flexible responses;

3   Clear and relevant insight stating clear awareness of low intensity of his own feelings and questioning whether he should be feeling more intensely;

4   A readiness to look for today’s social standards and queues when modelling appropriate disciplinary behaviour, namely acceptable forms of setting boundaries for children such as the temporary removal of toys, restricted access to TV, social media and similar;

5   An environment of shared responsibility where he finds supports for exploring and deciding on appropriate ways of going about things.

6   Support in established and long-term relationship with his wife, who emphasises support of adaptive and flexible responses to stressors as opposed to “fix it” or get it right responses.

7   Looks forward to playing the “grandad” role in the context of an environment with available supports of:

(a)   His wife sharing in the time spent with the children; and

(b)   The foster parents of the grandsons– this means that DBS is not in a position of being weighted down with the sole responsibility of “fixing” perceived unacceptable behaviour, when it comes to guiding the children about their actions.

8   Capacity to identify when the task is overwhelming. With a readiness to reach out and call for support when situations are more challenging than the limits of [DBS’s] internal resources or ability to effectively manage them. Describes instances when he has acknowledged his limitations, stopped, and called for support (e.g. from the carers of child 3) rather than taking regrettable actions in an attempt to control a situation.”

145. In assessing the risk of sexual harm that DBS might pose to children, Ms Egan did not assume that there was any previous sexual offence but took account of prior non-sexual violence (the trigger matter). There are in all nine static factors that she included in the assessment model and the model produced an assessment of low risk from the static items standing alone.

146. The psychologist’s overall assessment summary of the risk assessment of DBS to children is that:

“It is my clinical impression that [DBS] presents no likely risk of physical/psychological harm towards children.”

and

“It is my clinical impression that [DBS] presents no risk of sexual harm (to children).”

147. In her conclusions she reported:

“In 10 years by way of insight and judgment, he has sufficient capacity to respond appropriately to his grandchildren, within the context of the unsupervised Visitation access sought in his application:-

It is my clinical impression that given the external supports available … the internal resources [DBS] has developed over the past 10 years, by way of insight and judgment, he has sufficient capacity to respond appropriately to his grandchildren within the context of the unsupervised visitation access sought by the application.

148. The assessment does not on the face of it go so far as to provide a general conclusion in terms of what risk, if any, DBS poses to children other than his grandsons or to children in general.

149. The provisions of the Act do not permit the granting or refusal of a clearance to be subject to any condition: BJB v the Children's Guardian (No. 2) [2014] NSWCATD 164 at [36]-[45]. Accordingly, it is not open to the Children's Guardian dealing with an application or the Tribunal determining a review application, to grant clearance subject to a condition that it applies or does not apply to particular children (e.g. grandchildren).

150. Although the assessment of the psychologist Ms Egan that DBS presents no appreciable risk of sexual, physical or psychological harm to his grandchildren, it appears that the same result would apply to children generally given the methodology used by Ms Egan. Indeed it was her oral evidence that her assessment is that DBS does not present a real risk of physical, sexual or psychological harm to children.

151. In addition, there is no appreciable prospect that the same or a similar coincidence of adverse circumstances will be encountered by DBS in the future. That conclusion is supported by the absence of any such situation or any abuse of children by DBS in more than 10 years since May 2007.

Information given by the applicant in, or in relation to, the application

152. The references provided by the applicant have been referred to. The applicant has been given a clearance under the corresponding Act in the Australian Capital Territory. However, that Act is a different Act and the fact that the clearance has been granted in the ACT is not a matter that the Tribunal is required to take into account and is not evidence relevant to the decision in these proceedings.

153. DBS’s wife is a teacher. She has known him since he was 16 (for more than 40 years). In oral evidence she said that she had asked DBS about the allegations of sexual touching of one of his daughters. She was not aware of which daughter made the allegation, but when she asked him about it, he denied it. She said she believes him. She said she could tell it was upsetting for him to talk about it and said: “It is not who he is”.

154. Ms Egan, the psychologist, was cross-examined. She testified that DBS presents no risk of harm to children and specifically to his grandchildren.

155. She said in cross-examination that she was aware of the evidence of excessive discipline by him, and the occasion when he threw one of his daughters into a pool and the occasion when he put a son’s hand on a stove that was off, to complaints by one of his daughters that she had been sexually touched by him, and the allegation that he grabbed Child 3 around the throat on one occasion and that on another occasion he had lifted him by his collar.

156. She did not recall any allegation of violence to his first wife but she recalled that she had raised an allegation of sexual assault of one of the children. She acknowledged being aware that at times the children had been left unsupervised and that one child had to mind the others. She did not recall the allegations that the children at times were not washed properly and had a bad odour. She was aware of the allegations that DBS was harsh in discipline on some occasions. She said that he admits he was “overly disciplinary” and admitted that he had “done the wrong thing” with Child 3. He said that he acknowledged that his conduct of putting the child’s hand on the stove, even though it was off, was inappropriate. She said he was remorseful in relation to his disciplinary conduct and acknowledged that it was not acceptable.

157. She said she had used the Static-99 Test in relation to the assessment of the risk of sexual assault and the HCR-20 Test in assessing the risk of violence.

158. She said that she had played a disciplinary role in his dealings with his children in the 1990’s, but not now. She was asked whether DBS, although he has insight, now into his conduct in 2007, and she said his insight would be further improved if he followed her recommendations.

152. Her recommendations are set out in her report as “Health Management plan”. They are as follows:

“It is my clinical impression that given the external supports available (see Strengths and protective factors, pp.16-17), and the internal resources [DBS] has developed over the past 10 years, by way of insight and judgement, he has sufficient capacity to respond appropriate to his grandchildren, within the context of the unsupervised visitation access sought in his application.

Therefore, the following recommendations are provided in the context of further supporting [DBS’s] current awareness about his levels of emotional expression; and given his markets of Autism Spectrum Disorder, and his desire to positively contribute to his grandchildren, should he have the opportunity to play a greater role in their lives.

a.   Joining a Men’s/Mixed group that focuses on strengthening relationships with children and families. In Canberra, see which offers Men’s, and Parenting groups that emphasise development of strong emotional connections with children;

b.    Joining a Men’s group or a Therapy group specialising in personal process work – such groups concentrate on raising self-awareness regarding emotions, and evidencing one’s impact on others;

c.    Any of a range of activities that enhance connection with, and expression of emotions, as well as more fluid relationships with others, such as those offered in a wide range of Creative and Expressive Therapies modalities:

i   Art therapy;

ii   Dance/movement therapy – also consider joining a dance class;

iii   Poetry therapy;

iv   Drama therapy – also consider joining drama class lessons (i.e. to enhance one’s capacity to identify and evoke emotions);

v   Music therapy.”

160. In cross-examination, Ms Egan said that where she assessed the risk of sexual harm “on his grandchildren” it was an error because it should have referred to sexual harm “on children generally”. She said that the use of Static-99 assess the risk he poses to any children of any sexual assault.

161. Also she said in cross-examination that the risk of physical/psychological harm was being assessed not just for his grandchildren but for any child in his care.

162. Ms Egan said that the relationship with his present wife is a very positive factor and based on different dynamics to the relationship he had with his first wife. She considers that his recognition of the ability to look for support when he needs it is a strength that he did not have before. She said his knowledge and capacity to ask for support is very significant.

163. When she asked about the recommendations she had raised for him, she said: “He should do them to pick on the emotional needs of the children but having unsupervised time with children should not be conditional on him doing them.

164. She said that she would support him having unsupervised time with the children while he was still doing or still to do the items she recommended. She said she does not believe that his wife needs to be present for him to spend time with any child. She said that if he has responsibility for the care of a child he could do so unsupervised without someone like his wife supporting him.

165. In cross-examination DBS said that Child 1’s children are the grandchildren that he seeks to spend time with. They were placed into care of the Minister in February 2016 until they are 18. He said that when he had tried to contact the children and made contact to The Samaritans, he had received conflicting advice as to whether he needed a check clearance. After he had lodged an application, he was then advised that he did not need one.

166. When he dealt with The Samaritans, they told him that the Office of the Children's Guardian had issued a bar on him having contact with the children.

167. He said that he had acknowledged to Ms Egan that at times his discipline was inappropriate to each of the children. He said it was only his conduct towards Child 2 and Child 3, the children with the greatest needs, that was a problem. He recalled that in 1997 when Child 3 had been diagnosed with epilepsy, he was taking off his clothes in public and defecating.

168. He said that Child 3’s behaviour was so difficult that at times they needed three teachers for him at school. He said that when Child 3 had carers at school DBS and his new wife drove him half way to school and the carers met them and took over.

169. When asked whether he had completed the strategies recommended by Ms Egan, he said that he was willing to undertake them but at present he was completing the last year of his degree.

170. Ms Julie O’Regan of Samaritans Out of Home Care, which are responsible for the care of the grandsons of DBS, gave oral evidence..

Any other matters that the Children’s Guardian considers necessary

171. There are no other such matters.

Conclusion as to Risk

172. The evidence has not established DBS has sexually assaulted any child. There has been no conduct of the applicant in more than 10 years that could be seen as harming a child. Prior to that the conduct of DBS of assaulting a child or physically or psychologically threatening a child occurred when there was a combination of numerous adverse factors, stressors or circumstances that contributed to that conduct of DBS. A combination of adverse factors like those that applied in May 2007, and before that, is unlikely to ever apply to DBS again, because it has not repeated in more than 10 years, because his life circumstances and emotional supports are much better than they were in May 2007 and before that, and because of the evidence of the psychologist that he does not pose a real risk of physical, psychological or sexual harm to children

173. The prospect of such a repeat of adverse circumstances is very low. Overall, the Tribunal considers that DBS is of low risk to the safety of children and the risk is not a “real and appreciable” risk.

Section 30(1A) requirements

174. The Tribunal has concluded that a reasonable person with knowledge of the matters referred to above would allow his or her child to have direct contact with the applicant that was not supervised by another person while the applicant was engaged in any child-related work.

175. The Tribunal has also concluded that for that reason, and because it is not in the public interest to refuse a clearance to a person who does not present a real and appreciable risk to the safety of children, it is in the public interest to make an order granting the applicant a Clearance.

Conclusions

176. The Tribunal has decided that the correct and preferable decision, having regard to the material before it, is that the decision of the Children’s Guardian to refuse a Working With Children Check Clearance for the applicant should be set aside and an order made for the Children’s Guardian to issue him a Working With Children Check Clearance.

Privacy

177. For the purposes of privacy of the children and adults referred to in the reasons, there should be an order prohibiting the publication or broadcast of the name or other information identifying the applicant, any child referred to in these reasons or any relative of the applicant.

Orders

178. Accordingly the orders of the Tribunal are:

1. The decision of the Children’s Guardian of 18 April 2017 refusing 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. Publication or broadcast without the leave of the Tribunal of any name or other identifying information of the applicant, any child referred to in these reasons or any relative of the applicant referred to in these reasons is prohibited.

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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

16 April 2018 - anonymisation paragraph 67

Decision last updated: 16 April 2018