DEG v Children's Guardian

Case •

[2018] NSWCATAD 241

•

17 October 2018

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DEG v Children’s Guardian [2018] NSWCATAD 241
Hearing dates: 21 May 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
L Houlahan, General Member
Decision:

The decision of the Children’s Guardian to refuse to grant the applicant a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – Working with children – Whether applicant poses a risk to the safety of children – Where applicant committed offences of violence over a ten-year period – Where last offence occurred four years ago – Where large number of apprehended violence orders made against applicant - Where applicant committed to a life without violence after committing to Christianity in 2014 – Where applicant has expressed remorse for crimes – Whether applicant fully candid with Tribunal
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: BKE v Office of the Children’s Guardian [2015] NSWSC 523
CFJ v Children’s Guardian [2016] NSWCATAD 62
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2002] NSWSC 949
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
Lokondo v Commissioner of Police [2017] NSWCATAP 137
Category:Principal judgment
Parties: DEG (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
V Hartstein (Respondent)

  Solicitors:
Applicant Self Represented
Crown Solicitor’s Office (Respondent)
File Number(s): 2017/00248496
Publication restriction: A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

  1. The main issue in these proceedings is whether the applicant should be granted a working with children check clearance.

  2. The applicant has an extensive criminal history. Between 2004 and 2014, he was convicted of several offences involving violence. A large number of apprehended violence orders have been made against him and several adverse reports were made against him to Family and Community Services (“FACS”).

  3. The applicant acknowledges that he behaved violently and unacceptably in the past, attributing this to the domestic violence he was subjected to as a child. However, he says that he had a religious experience in 2014, which turned his life around. Since that time he has taken steps to become a better man and a better parent to his children, including by seeing a counsellor and doing parenting and anger management courses.

  4. We accept that the applicant has made significant changes to his life since mid-2014. He has gained in insight and has become a better person. He has expressed genuine remorse for his past actions. His efforts to put his violent conduct behind him are to be commended.

  5. However, we are not satisfied that the transformation is as complete as the applicant claims. There were some aspects of his evidence which were not entirely transparent. In addition, the expert who gave evidence on his behalf conceded that there was a low to moderate risk of him behaving violently again.

  6. We are satisfied that the applicant still poses a risk to the safety of children, albeit a lower risk than he posed until his decision to change his life in 2014. Accordingly, we consider that the correct and preferable decision is not to grant him a working with children check clearance.

Relevant law

  1. The Child Protection (Working with Children) Act 2012 (NSW) provides that 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”: s 4.

  2. The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement: Child Protection (Working with Children) Act, s 15(1).

  3. A person is subject to an assessment requirement if any of the matters specified in Schedule 1 of the Child Protection (Working with Children) Act apply to the person: Child Protection (Working with Children) Act, s 14.

  4. The applicant was subject to an assessment requirement because he had committed certain offences and, as a result, Sch 1, cl 1(1)(b), 1(2)(a) and 1(6) applied to him. The Children’s Guardian therefore conducted a risk assessment of him, under s 15(1).

  5. 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: Child Protection (Working with Children) Act, s 18(2). After conducting the risk assessment, the Children’s Guardian was satisfied that the applicant posed a risk to the safety of children and refused his application for a clearance.

  6. A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision within 28 days after notice of the decision was given to the person: Child Protection (Working with Children) Act, s 27(1). The applicant applied more than 28 days after the notice of the decision was given to him, but the Tribunal extended the time for filing of the application, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), at the first directions hearing.

  7. When determining an application, under s 27(1) of the Child Protection (Working with Children) Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

“(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 criminal history and the conduct of the person since the matters occurred,

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

(i1)   any order of a court or tribunal that is in force in relation to the person,

(j)   any information given by the applicant in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.”

  1. We note that subsection 30(1A) was inserted into the Child Protection (Working with Children) Act by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015. It does not apply to the applicant, because his application to the respondent was made before that provision came into force (see Child Protection (Working with Children) Act, Sch 3, item 16).

  2. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it: Administrative Decisions Review Act, s 63(1).

2018 Amendments

  1. Certain provisions of the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) (“2018 Amendment Act”) commenced on 1 June 2018. These relevantly amended the Child Protection (Working with Children) Act2012 (NSW) as follows:

  1. Section 5B was inserted into the Child Protection (Working with Children) Act. This provides: “A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.”

  2. Section 30(1)(h), which previously required the Tribunal to consider “the seriousness of the person’s total criminal record” when determining an application, was amended so as to require the Tribunal to consider “the seriousness of the person’s criminal history”;

  3. A definition of “criminal history” was inserted, making clear that the term includes “criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged” (Child Protection (Working with Children) Act, s 5C(b)).

  1. The amendments effected by the Child Protection (Working with Children) Amendment (Statutory Review) Act commenced shortly after the hearing of the applicant’s matter on 21 May 2018.

  2. The 2018 Amendment Act does not contain any transitional provisions. However, the presumption against retrospectivity does not apply. This is because the amendments do not impinge upon the applicant’s accrued rights, privileges, obligations or liabilities, within s 30(1)(c) of the Interpretation Act 1987 (NSW). They merely require the Tribunal to take into account antecedent facts and circumstances when making a determination as to the future, being whether to grant the applicant a working with children check clearance (see, for example, La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of Federal Court); Lokondo v Commissioner of Police [2017] NSWCATAP 137 at [27]-[33]).

Consideration

  1. When reviewing the decision of the Children’s Guardian not to grant a working with children check clearance, the Tribunal “stands in the shoes” of the Guardian) The Tribunal is thus bound by s 18(2) of the Child Protection (Working with Children) Act. That provision implicitly prohibits the Children’s Guardian (and the Tribunal on review) from granting a working with children check clearance to a person if “satisfied that the person poses a risk to the safety of children.”

  2. The definition under s 5B of a “risk to the safety of children” draws upon the common law test which applied to the determination of risk under the Child Protection (Working with Children) Act and earlier child protection legislation before it was enacted. This test was whether the risk posed by the applicant is “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26]; CFJ v Children’s Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 at [40]-[44].

  3. In determining whether the applicant poses “a real and appreciable risk to the safety of children,” we have considered each of the s 30(1) factors. Each factor is dealt with below.

Seriousness of offences and matters causing refusal of a clearance (s 30(1)(a)) and seriousness of criminal history (s 30(1)(h))

  1. The applicant has committed a number of offences. His criminal record includes convictions for grievous bodily harm by unlawful act (2004), assault occasioning actual bodily harm (2005) and common assault (twice in 2005 and once in 2011).

  2. In 2004, the applicant hit a man, who was a stranger, in a pub. The applicant’s evidence, which we accept, is that he hit the man because the man grabbed the applicant’s then partner by the breast to the point that she screamed. This account gains some support from the police facts, which state that, in response to a question from a third person as to why the applicant hit the victim, the applicant replied “You would too if he grabbed your missus on the tit, but I only hit him once.”

  3. As a result of the applicant’s assault, the man suffered multiple orbital fractures to the cheek bone, eye socket and forehead, and required major surgery. The applicant was convicted of committing grievous bodily harm and sentenced to a community service order for 150 hours.

  4. In 2005, the applicant was subject to an apprehended violence order in relation to his ex-wife. In February 2005, the applicant waited for his ex-wife at her parents’ house, having heard that she was in a new relationship. He and his ex-wife had an argument in which the applicant asked his ex-wife whether she was sleeping with a named man, and she refused to answer. He drove off in her car with her phone. His ex-wife’s parents drove her to the location to which the applicant had gone. The applicant again asked his ex-wife whether she was sleeping with the named man. She again refused to answer. He threw her phone on the ground, smashing it, grabbed her by the arm, then walked over to her car and kicked the passenger door.

  5. The applicant was convicted of common assault, destroy or damage property, take and drive a conveyance without the consent of the owner, contravene apprehended domestic violence order and drive on road while licence suspended. He was sentenced to a good behaviour bond for two years, ordered to pay compensation of $1,852.60 and disqualified from driving for twelve months.

  6. In March 2005, the applicant had an argument with the mother of his son (from whom he was separated) in a pub. The woman had an apprehended domestic violence order against him. The applicant told her that if she tried to keep their son away from him, he would slit his throat. Shortly afterwards, he spat at her, hitting the side of her face.

  7. In May 2005, the applicant was at a birthday party at a pub, which was also attended by a seventeen-year-old girl. The applicant pushed a can into her mouth. She received chips to two teeth with the upper tooth loose from the impact, and bruising to the chin. The applicant’s oral evidence was that this occurred when he reacted to the girl tipping alcohol on his shirt twice. He said he was stuck between two chairs. He slapped the can away, and it came back and hit the girl. It is difficult to reconcile the applicant’s account with the girl’s account, as recorded by the police at the time. This was that the applicant said to her: “The only thing you’ve got going for you is your titties, and when you get older you’ll only be an ugly cunt.” The girl told police that she replied, “Well who’s your girlfriend?” The girl said the applicant then stood up and moved within arm’s reach of her and pushed a can into her mouth.

  8. In October 2005, the applicant was found guilty of committing common assault and contravening an apprehended violence order in March 2005. On the same day, he was found guilty of assault occasioning actual bodily harm in May 2005. He was sentenced, in both matters, to imprisonment for twelve months, with a non-parole period of nine months suspended on his entering a good behaviour bond for twelve months.

  9. In 2011, the applicant had been in a relationship with a woman (“his ex-partner”) on and off for a period of six years. The applicant’s ex-partner was visiting a female friend when the applicant arrived at the friend’s house, wanting to speak to his ex-partner. He entered the house and started pushing his ex-partner on the chest. The friend grabbed at the applicant, who then pushed her, causing her to fall backwards on to her computer. The applicant continued to argue with his ex-partner, then slapped her face. At least two children were in the house when this occurred. The applicant gave evidence that there were two children there, whereas the police facts record that there were seven: three being his ex-partner’s children, one being her nephew and three being her friend’s children. The applicant’s evidence is that his ex-partner and her friend were taking the drug ice at the time. He explained his behaviour by saying that he did not know have the tools to combat involvement with drugs. The police facts record that the ex-partner and her friend were under the influence of alcohol, but made no mention of drugs. Again, the applicant’s account is difficult to reconcile with the police facts.

  10. The applicant was convicted of common assault and sentenced to imprisonment for six months, suspended upon his entering a good behaviour bond for six months.

  11. The applicant was also convicted of contravening a prohibition or restriction in an apprehended violence order (domestic) in May 2014. The woman with whom he was in a relationship at the time of the hearing, to whom we will refer in these reasons as his current partner, was protected by the order. The breach of the order occurred when he initiated two telephone conversations with her. He was sentenced to a good behaviour bond for twelve months.

  12. These offences, taken together, are serious. They indicate a “pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children” within cl 6 of Sch 1 to the Child Protection (Working with Children) Act.

  13. The applicant had thirteen apprehended violence orders made against him between December 2004 and June 2014, some of them interim. This indicates a significant history of (mainly) domestic violence. These are not “offences” but are nevertheless indicative of a history of violent conduct, particularly in the domestic context.

  14. The delegate of the Children’s Guardian relied on certain other “matters” when refusing the applicant a working with children check clearance in his decision of 22 March 2016. These were the applicant’s “extensive child protection history with Family and Community Services (FACS) dating back to 2007, which primarily relates to the domestic violence described in [his] criminal record.” The delegate also relied upon the circumstance that FACS had removed the applicant’s children from his care in 2014.

  15. The applicant’s child protection history includes reports from FACS of domestic violence on the part of the applicant and verbal arguments between him and his partner or ex-partner in front of children. A report dated August 2012, for example, reports that a reporter who called them “states that the children have told the caller very matter or [sic] factly that [the applicant] bashes their mother up in front of them”.

  16. In April 2013, a FACS report indicates that they received a report that the applicant “threw [his current partner] to the floor by her hair” and that his daughter saw this; that on one occasion he had lifted up his current partner’s daughter by her hair; and that he hits his current partner’s daughter hard on the head with a hairbrush when brushing her hair. In May 2013, there is a FACS report of an allegation that the applicant made his current partner’s daughter have a cold bath and that the girl was shaking with cold when she got out. Other FACS reports from 2013 claim that the applicant held his current partner’s daughter’s leg on a heater causing a burn and made her eat worms. An investigation into the allegation about the burn (which was said to have happened years before) found that a community nurse had regarded the burn as not inflicted and not suspicious. The matter was closed. We note that there were a number of different allegations that the applicant harmed children from different reporters over a period of time. The allegations that the applicant hurt children were not put to him in cross examination. We treat them with some caution for this reason, but do not disregard them altogether.

  17. The removal of the applicant’s children from his care in 2014 followed the laying of charges against him, to which we will now turn. These form part of his “criminal history” (as defined by s 5C), which includes charges which were withdrawn.

  1. In April 2014, a provisional apprehended violence order was in force to protect the applicant’s current partner. The applicant had given undertakings to the Children’s Court in February 2014 that he would not be involved in violence in the presence of children. In April 2014, the applicant and his current partner had been in a relationship, but were not, at that time, in a relationship.

  2. The following facts were alleged against the applicant. The applicant was drinking at a pub on a Friday night with friends in April 2014. His current partner was also at the pub that night. At about 2.15am, the applicant’s current partner left the pub and went to a friend’s place. The applicant also went to the friend’s place, possibly at a later time. Whilst the applicant’s current partner was out the front having a cigarette, the applicant had an argument with her and took her mobile phone. The applicant assaulted her to the head and face area, placed his hand around her neck and forced her to walk the short distance to his home with him. The applicant’s children were in the house at the time, probably asleep. It was alleged that the applicant attempted to have sexual intercourse with her and to digitally penetrate her vagina. The applicant’s current partner asked the applicant to drive her home. Instead, he drove her somewhere else, heading out of town. The applicant’s current partner continually asked him to take her home and threatened to have him charged for kidnapping. The applicant turned the car back towards the main town. A witness heard her yell out of the car “help me” and telephoned emergency services. The applicant stopped the car in front of a police station and let his current partner out. She got out of the car and ran.

  3. Police attended the home address of the applicant’s current partner. She was taken to hospital where it was confirmed she had fractures to her ribs and wrist, grazes to her face, neck, arm and upper thigh, a split lower lip and a lump on her forehead. She alleged that the applicant had beaten her up.

  4. A FACS report made the morning after the alleged incident states that the applicant’s current partner told the reporter that the applicant had punched her in the ribs, and that she recalled being punched and kicked repeatedly. Another FACS report, later that day, states that the children were staying with their uncle following the applicant’s arrest. The applicant’s children were removed from his care a few days later and placed in the care of their aunt and uncle.

  5. The applicant was charged with committing assault occasioning actual bodily harm, sexual intercourse without consent and take/detain person with intent to obtain advantage. The matter was heard in June 2014 and withdrawn.

  6. What was alleged against the applicant was very serious.

  7. The applicant’s current partner made a statutory declaration in August 2015 stating that she made these allegations “under duress from law enforcement agents” and that she was struggling with drug addiction at the time she made the allegations. She says she withdrew the allegations as they were “not accurate.” She also states in that affidavit that she and the applicant “are no longer together.”

  8. The applicant admitted, during cross examination, that he had “beaten up” his partner in 2014. When asked whether he caused her to have fractures to her ribs and wrists and an injury to her arm, the applicant agreed that he had been the cause of that.

  9. The 2014 allegations cause us some concern. Whilst the applicant’s current partner has stated in a statutory declaration that the allegations were not accurate, it is clear that an incident occurred in which the applicant assaulted her causing her significant injuries, as the applicant has admitted this. The extent to which the rest of the allegations may be relied upon is unclear, but there is independent evidence that the applicant’s current partner was yelling for help from the applicant’s vehicle. It seems to us that at least part of the story must have some truth. It may be that the allegations of sexual assault are inaccurate. A report after the applicant was incarcerated in April 2014 indicates that he was particularly upset about these charges.

  10. Ms Hartstein submitted that the Children’s Guardian did not rely on the 2014 offences as being sexual offences, just aggravated violence offences. We take it that Ms Hartstein intended, by this submission, to refer to the 2014 charges. There is insufficient evidence, in light of the statutory declaration of the applicant’s current partner, to find that the alleged sexual assault occurred, or even that there is a risk that it occurred. However, we are satisfied that the alleged physical assault occurred. This was clearly serious as it resulted in fractures and the admission to hospital of the applicant’s current partner.

  11. In February 2016, an apprehended violence order was made against the applicant, prohibiting him from assaulting, intimidating or contacting his current partner. The order expired in June 2016. The applicant explained this by saying that his current partner had been struggling with addiction to the drug ice for 15 years, and that her mother had persuaded her to take out the apprehended violence order. The partner has now stopped using drugs.

  12. If it was an apprehended domestic violence order, as would appear to be the case, the court would have had to be satisfied, on the balance of probabilities, that his current partner had reasonable grounds to fear, and in fact feared, the commission by the applicant of a domestic violence offence against her, unless an exception applied (see Crimes (Domestic and Personal Violence) Act 2007, s 16(1)). We do not have the full facts before us, but note that a court is not entitled to make an apprehended violence order without a proper basis for doing so, on the evidence before it. This causes us to treat the applicant’s explanation with some caution. The explanation suggests that either his current partner, or her mother, or both, were not truthful to the court. This is a serious allegation to make, particularly in circumstances where he is relying upon his current partner’s evidence in support of his application to the Tribunal.

Age of person when, and period of time since, offences or matters occurred; applicant’s current age (s 30(1)(b), (c), (g))

  1. The applicant committed the offences of which he was convicted between the ages of about 28 and 38. It is about four years since the last offence or matter occurred.

  2. There is a relatively short period between the present time and the dates of both his last offence and his last alleged offence. The fact that he is now 42, an age of maturity, might suggest that he is now less likely to act violently than he would have been as a young man. However, the fact that his last offence was committed only about four years ago makes such a conclusion, at least on the basis of age alone, less compelling.

Difference in age and relationship between victims and applicant, vulnerability of victims, whether applicant could reasonably have known victim was a child (s 30(1)(d)-(f))

  1. The applicant had no relationship with the man he hit in a pub in 2004. That man had no particular vulnerability on the evidence before the Tribunal, either by reason of his age or any other reason.

  2. Some of the applicant’s victims were women with whom he was in a relationship, or with whom he had been in a relationship (the 2005, 2011 and 2014 offences). There does not appear to be a significant difference between the applicant’s age and the age of these women. The women were vulnerable because of their emotional relationship with the applicant and because of his (likely) greater physical strength.

  3. As the Children’s Guardian has acknowledged, the applicant may not have known that the seventeen-year-old girl whom he assaulted in 2005 was a child. She was twelve years younger than him. She was vulnerable because of her age and, presumably, his greater physical strength. It is impossible to determine, from the materials available to us, whether the applicant could reasonably have known that the seventeen-year-old girl was a child. The fact that she was in a pub may have led him to think she was not.

Conduct of applicant since offences and matters occurred (s 30(1)(b), (h))

  1. The applicant’s explanation of the change in his character is that, whilst being held on remand as a result of the 2014 charges, he discovered his Christian faith and has been steadily incorporating those moral and ethical structures into his life on a consistent basis. The applicant described the start of his transformation as occurring in a gaol cell, in about 2014, when he prayed, and asked God to take over his life and direct him. Prior to that, he had not been a very religious person.

  2. Since mid-2014, the applicant has completed a number of short courses including:

  1. Certificate of meditation, 2017;

  2. Positive lifestyle program for individuals, 2014;

  3. Triple P parenting program, 2014;

  4. Youth suicide awareness and prevention, 2015;

  5. Seasons for healing, Stage 1, 2015.

  1. The applicant has undertaken these courses on his own initiative, in order to improve his parenting, anger management and other life skills.

  2. The applicant has attended some counselling sessions since 2014. He attended twelve hour-long counselling sessions with a psychologist in 2016. She reported that he had “engaged enthusiastically in his therapy sessions” and had “expressed a strong desire to do as much as he can and make the most of all resources available to him … that will enable him to grow, learn and become the best parent he can be for his children.” The psychologist also noted that it was “evident” that his “Christian faith is the main impetus for the significant changes [he] has made in the way he manages his emotions and behaviours and the way he relates to other people.” She said he “acknowledges and expresses much remorse for past wrong-doings” and “shows an earnest desire to commit to long term genuine change in the way he loves and cares for all people, especially his children.”

  3. The courses the applicant has undertaken, and the psychological counselling, are protective factors. They reduce the risk of him reoffending.

  4. We note the 2016 apprehended violence order, referred to above. There is insufficient evidence before us to determine whether the applicant’s conduct gave rise to that and, if so, what that conduct was.

  5. The applicant has resumed care for his son and daughter since 2014, going to great efforts to have his daughter returned to him and securing a court order placing her in his care. In June 2016, the applicant’s daughter was interviewed by a social worker. She repeatedly stated she wished to live with her father. She was returned to her father in August 2016, and in October 2016 said she liked living with her dad. The applicant’s son returned to live with the applicant of his own volition. The reports on the applicant’s parenting since this time are positive. His undoubted commitment to and love of his children does him great credit.

The likelihood of any repetition by the applicant of the offences or conduct (s 30(1)(i))

  1. The applicant relied upon a report of a psychologist (“the expert”) in relation to the degree of risk he poses to the safety of children. In his April 2018 report, the expert assessed the applicant as having a low risk of future offending. The expert noted that the Personality Assessment Inventory, Child Abuse Potential Inventory and State-Trait Anger Expression tests completed by the applicant were all completed without elevations detected in validity scales. The Personality Assessment Inventory was within normal limits. The applicant scored a relatively low score on the Child Abuse Potential Inventory, a screening tool for the detection of physical child abuse, which was within the range of the general population. The State-Trait Anger Expression test showed the applicant’s anger state level score to be in the low-moderate range. The expert also administered the Historical/Clinical Risk Assessment-20 (HCR-20), a broadband violence risk assessment instrument and the Sexual Violence Risk-20 (SVR-20), which identifies risk factors for sexual violence. In his report, the expert reported that the applicant scored in the low risk category of violent re-offending on the HCR-20 and that the applicant’s results on the SVR-20 were also indicative of a low risk.

  2. The expert concluded in his report that the applicant was a low risk of future offending based on the assessment and other clinical data.

  3. Under cross examination, the expert acknowledged that he had made some errors in the way he scored the HCR-20, including by reference to the “points” he allocated the applicant for mental illness, early maladjustment and exposure to destabilisers. He then conceded that the applicant’s level of risk should be “low to moderate” rather than “low.”

  4. Ms Hartstein, for the Children’s Guardian, submitted that the expert’s mistakes added up to a conclusion that on that scale of assessing risk of future violent offending, the applicant was in moderate range. Whilst the expert assessed the risk as “low to moderate,” Ms Hartstein described that as an attempt to resurrect his previous assessment, which did not stand up. Ms Harstein submitted that, even if the Tribunal accepted that “low to moderate” is an acceptable way of describing the risk posed by the applicant, that was still a real and appreciable risk. In those circumstances, the Tribunal should find that the applicant posed a real and appreciable risk to the safety of children. Ms Hartstein submitted that there was a real risk that the applicant would, in a time of stress or relationship breakdown, act violently in the future, given that his violent conduct in the past was at least partly a reaction to stressful events.

  5. We have assessed the likelihood of the applicant repeating his earlier violent conduct, having regard to both the expert and lay evidence.

  6. Our assessment of the likelihood of the applicant reoffending is also impacted by the applicant’s evidence. He gave evidence that he had been exposed to domestic violence as a child. He attributed his own episodes of domestic violence to his experiences as a child. However, he also described how his understanding of his behaviour, and the impact of domestic violence, had changed.

  7. The applicant submitted that he would not act violently now, even when dealing with stress. He said that after he was released from prison in Christmas 2014, his favourite brother died of a heart attack. He “did not go off the rails.” Further, he said if anything would make him act in a violent manner it would be having his children taken from him, and he did not behave violently when that happened. We accept that, over the last four years, the applicant has been subject to very stressful events and has not responded to them with violence, according to the evidence before us.

  8. The applicant made comments, during the hearing, to the following effect:

  1. He did not want to be “that person” again (referring to the person he was when he committed the acts of domestic violence);

  2. Since 2014 he had engaged in services, to become a better man. He said he had engaged them to ensure that he was a better partner, a better parent, and so that he might in some small way be able to right the wrongs he had done.

  3. He acknowledged that he had hurt his kids and done them some damage and that was something he could not take away.

  4. He said that, with the help of God, who came into his life at his lowest, he could “definitely ensure” that “that garbage” did not enter his life again.

  5. He stated that he owned what he had done and acknowledged that it was wrong. He said that that needed to stay in his past.

  6. He said he got up every day knowing that he had a past, but he tried to be better than he was the day before.

  7. He described himself as “a bit of a grub earlier on” and said that this was because he lacked self-respect.

  8. He said he was ashamed of his past but proud of his actions in the present.

  1. The applicant expressed remorse for his crimes at various points during cross examination. In relation to the 2004 assault on a man in a pub, he said it was a “massive error in judgment.”

  2. In August 2015, the applicant attended a session with a counsellor. He told the counsellor that he wanted to change and learn how to be wise. At a second session the same month, he reported feelings of anxiety and stress but had strategies to help manage this. In November 2015, he told the counsellor that he wanted to work with youths to help them make better decisions and not to have to experience what he has.

  3. The applicant showed some insight into his past offending and its impact on others. He said that, while he did not understand it at the time, he now understood why his children were taken from him. He said he had been living a life where he just could not see the harm he was doing.

  4. The applicant said that he used to think that as long as his kids did not see him “smash” somebody in the face, there was not an issue. He now recognises that even if they are at the other end of the house when he is having an argument, they are affected.

  5. The applicant displayed some insight into the psychological drivers which caused him to become violent. He said that the way he grew up he thought he had to control everything. When he thought he was giving all of his love and receiving nothing back, then things would get out of control. He said he now understood that you give love and expect nothing in return and now realised that it was not his place to control anything other than himself and his actions.

  6. The Children’s Court clinician interviewed the applicant in March 2016 for the purposes of making a care plan for his daughter. In that interview, the applicant said he accepted full responsibility for his actions and deeply regretted them, as he realized that he was wrong. He attributed his violence to his childhood background and reported struggling with self-esteem and power issues over many years and hitting out against partners who had let him down. The Court clinician observed that he “appeared genuinely remorseful when discussing his children having witnessed previous violence and seemed able to make the link between his own childhood experience and the need to protect them from future episodes.” He explained that when he was in gaol he “embraced the Lord” and decided on a total change and, since his release, has maintained an altered lifestyle. He said that he had learnt from the courses he attended (parenting and anger management courses) and described himself as experiencing “a spiritual journey of self discovery.”

  7. The report noted that, although the applicant had undertaken counselling programs, he was yet to be individually professionally treated for the anger management, self-esteem and power issues. The author also expressed the view that whilst it was assumed that the applicant would take conscious steps to protect his daughter from future conflict, “greater confidence would occur if professional intervention were to sort [sic: be sought] by” the applicant. It appears that the applicant responded by undertaking the counselling which has been referred to above.

  8. The applicant described at the hearing some strategies he employs to manage his anger, which appear to us to be constructive. If he is at a point of argument, he goes for a walk. He said that, if he gets to a point where he is angered, he knows not to direct it at his partner. His view is that no positive outcome is going to be achieved by getting angry at her.

  9. We are satisfied that the likelihood of the applicant repeating the violent conduct, which led to his convictions, is much lower than it was in early 2014. He has shown genuine remorse for his actions, a protective factor. The counselling he has undergone has helped him to understand himself and to better manage his negative emotions. His comments about learning that he could not control others demonstrated a wisdom he clearly did not possess when he committed the offences referred to above. However, we consider that, despite these significant steps forward, there remains a risk that he will behave violently again.

  1. Our main concerns are that he lacked transparency about certain matters at the hearing, and that his account of some of his offences minimised his responsibility for his actions. We acknowledge that he freely admitted having committed the offences when asked about them and clearly expressed remorse. However, his account of certain matters from his past was inconsistent with the documentary evidence, and the inconsistencies were such as to place him in a more favourable light. We have referred to this in our description of his crimes. Further, whilst not denying that he had suffered from depression or anxiety, he played down this evidence. He said in oral evidence that he had only taken steroids for two or three months and they had little effect, contradicting his earlier statements that he had used them for at least a year and that they had contributed to his problems. His description of his relationship with his current partner also glossed over many of the very significant issues they had experienced.

  2. The applicant’s current partner said in her statement that she had been in a relationship with him for five years. When asked about this in cross examination, the applicant said that this was accurate in the sense that they started a relationship and they continue to finish that. Later, he said he had been with her since July 2012 and had been faithful the whole time. Whilst we accept that the applicant and his current partner started a relationship in July 2012, the applicant’s description of their relationship obscures his violence towards her, her serious drug addiction, his time in gaol, her time undergoing rehabilitation and the periods during which they were separated.

  3. In April 2013, a FACS file note reports that his current partner “has own home; couple times a week.” In the context, this appears to mean that the applicant told FACS that his current partner came to his home, or stayed there, a couple of times a week. In early April 2014, a police report describes the applicant and his current partner as having been in a domestic relationship for 18 months, a relationship which was described by his current partner as “volatile.” At the time of the alleged assault in mid-April 2014, the Police Facts describe his current partner as “previously” being in a relationship with the applicant. In July 2015, the applicant told a FACS worker he was “not in a relationship now.” When asked how long ago the relationship ended, he replied that it was a while and that it was “dead and buried.” In an application to the Children’s Guardian in September 2015 to have an interim bar removed, the applicant stated that he is “currently single.” In an interview with FACS in November 2015, for the purpose of his application to have his daughter live with him, the applicant was asked about his current partner and whether he had contact with her. His response was “not so much. To my knowledge, she’s going very good.” He said they were still friends and that he would “say g’day to her.”

  4. In February 2016, as indicated above, an apprehended violence order was made against the applicant, naming his current partner as the protected person. In March 2016, in the context of an application to vary the care orders for his daughter, the applicant told the Children’s Court clinician that he “does not have a current partner.” In November 2016, the applicant formally advised that he and his current partner were in a relationship. He said that he had remained in contact with his current partner for the past three years and they had been together at times but not formally in a relationship. In December 2016, the applicant’s partner had just completed rehabilitation and was living with the applicant. In April 2017, the applicant and his current partner told FACS that they were living separately. The current partner said she had a history of ice and cannabis use but had been clean for 250 days.

  5. When asked in cross examination what he had meant by saying to the Children’s Guardian that he was single, the applicant said that he meant single in the sense that he and his current partner had not been together or lived together. When asked whether he had said to FACS, in November 2015, what FACS wanted to hear, given that his current partner had had issues with drugs, he did not give a direct answer. He said that he was single in that he was not making coffees for her in the morning and that there was a time he had to explore the option of being without her. He also acknowledged that, for the sake of his kids, he would say anything. He went on to say that, at that stage, he would have said whatever he needed to say. This is both an indication that he was prepared to be candid with the Tribunal, at least to some extent, and a troubling statement.

  6. The applicant demonstrated a lack of transparency, including at the hearing, about his relationship with his current partner. This appears to us to reflect a reluctance to fully confront his past conduct. This is also evident in his descriptions of incidents which occurred a long time ago, including the circumstances of his offences in 2005 and 2011, in which he portrays his own conduct as almost justifiable, contrary to the contemporaneous reports (which we acknowledge may not be completely reliable). We are also concerned about his admission that he would have said anything to get his daughter back. Whilst his strong desire to have his daughter in his care reflects well on him, this statement also indicates a disregard for the truth in a matter involving the safety of children.

  7. His tendency to minimise or trivialise matters which do not reflect well on him is of significance in that it gives us less confidence in other things the applicant has told the Tribunal. For example, he claimed that the apprehended violence order in 2016 was as a result of the influence of the mother of his current partner on her, and that the mother did not like him. It is perhaps understandable that the mother of the applicant’s current partner would not like him, given the serious injuries he inflicted on her daughter in 2014, and, it appears, earlier. There is no evidence from the applicant’s current partner or from her mother as to the circumstances in which this apprehended violence order was made. One possibility is that there was an act of violence on the part of the applicant which gave rise to it. On the evidence before us, we cannot dismiss this possibility altogether.

  8. Having regard to all of this evidence, we consider that there remains a possibility that the applicant will repeat the offences he committed earlier, even though the likelihood of him doing so has been greatly reduced by the steps he has taken to create a new life for himself.

The impact on children of any repetition of the offences or conduct (s 30(1)(i))

  1. The adverse impact upon a child of any repetition of the offences or conduct could be significant, if the child witnessed the applicant being violent or (as was the case with the seventeen-year-old girl), if a child was the recipient of the applicant’s violence.

Any order of a court or tribunal that is in force in relation to the person, any relevant information in relation to the person that was obtained in accordance with section 36A (s 30(1)(i1), (j1))

  1. There is no evidence that any court or tribunal order is in force in relation to the applicant, nor that information was obtained in relation to the applicant in accordance with s 36A of the Child Protection (Working with Children) Act. Accordingly, these factors are not relevant.

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

  1. The applicant provided a statement from his current partner. She described the applicant as a person “who feels compelled to help others deal with their problems” and said he had helped her battle substance addiction. She also said that, “in the past three and a half years, [the applicant] has made an astonishing transformation in his life and violence of any kind is no longer part of the man that he is”. She also described the applicant as “a positive role model” for her two children.

  2. The applicant’s current partner was not cross examined. However, we have concerns about the reliability of her evidence. Her statutory declaration in 2015 stated that the 2014 allegations were “not accurate.” It seems unlikely that she made the allegations “under duress from law enforcement agents” as she claims. However, even if some pressure were placed upon her by police to make a report, this does not mean the allegations were untrue. A witness saw her screaming from the car and the applicant accepted he caused the fractures to her ribs. This indicates that some part of the story she told police was probably true.

  3. We accept that the applicant has transformed his life over the last three and a half years (now more like four). However, we treat the evidence of his current partner with some caution, given the doubts we have about the 2015 statutory declaration.

  4. The applicant provided other references, including:

  1. A reference from the CEO of an indigenous organisation, stating that the applicant had volunteered to assist in a program for homeless men. The CEO expressed the opinion that the applicant possesses “a very real potential to enrich the lives of these men.”

  2. A letter from the acting principal of his daughter’s school, saying she presents as a confident, polite and happy student and that the applicant is highly involved in her learning, with an active interest in the school.

  3. A reference from a family friend who has known the applicant for over 15 years and reports that he “had a total change in direction in his life through his commitment to Christianity.”

  4. A worker with the Salvation Army who reports that the applicant has attended some of their courses, including in anger management, and describes him as a gentle man, with compassion and community spirit.

  5. A pastor of his church who has known him since 2014 and describes him as helping young people and being active in community youth programs;

  6. A manager of a mental health rehabilitation service, who states that she is aware of his criminal history check and that she is willing to offer him employment with their service, if he obtains a working with children check clearance;

  7. A previous employer who states that she never had any concern whilst the applicant was around children in the course of his work;

  8. A worker at a neighbourhood centre who states he has worked with the applicant supporting issues to bring about change, and that he has seen some good change in him.

  1. These references show that he has gained the confidence and support of a number of different people in the community, and that some of these people have recognised significant changes in the applicant in the last four years or so. They confirm other evidence as to the change in his character and conduct.

  2. The applicant’s daughter came into his care on 16 December 2012. She had previously been in her mother’s care, but there had been concerns about the mother posing a risk of harm to her including through drug use. On 21 February 2013, by consent, the Federal Magistrates Court made orders, in family law proceedings, that the applicant’s daughter was to live with him. She was removed from his care in 2014, as discussed above. On 25 July 2016, the Children’s Court made orders allocating all aspects of parental responsibility for the applicant’s daughter to the Minister for six months, and thereafter solely to the applicant.

  3. The fact that FACS was prepared to support the applicant’s application to have his daughter returned to him indicates that it regarded him as posing at most a low risk to the safety of his daughter. This is also in the applicant’s favour.

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

  1. The Children’s Guardian identified one other matter to which she considered it was necessary that the Tribunal have regard. This was that the applicant had been physically violent at work. The Children’s Guardian referred to a report in 2010 that, whilst at work, the applicant had shown physical violence towards other staff members.

  2. The evidence on which the Children’s Guardian relies includes a memorandum from the applicant’s then employer which states that allegations of violence made against the applicant had been denied by the applicant and were not proven by investigation. These allegations were not put to the applicant in cross examination. The memorandum does not identify the source of the allegations. In the circumstances, we give this evidence very little weight.

Conclusion

  1. The applicant has a violent past. We are of the opinion that, although his violence was mainly directed towards women, he posed a significant risk to the safety of children until mid-2014, due to his lack of insight and lack of control over his anger. The degree of risk which he poses to others has greatly reduced since his decision to become a better person and to take steps to manage his anger and to deal with unresolved psychological issues.

  2. We are very mindful of the positive actions the applicant has taken to change what had become an ingrained pattern of behaviour. We do not wish to discourage him from following what is undoubtedly a path towards creating more constructive and respectful relationships with other people and avoiding the very destructive behaviour which typified some of his relationships in the past. However, we also bear in mind that the paramount consideration in the operation of the Child Protection (Working with Children) Act is the safety, welfare and well-being of children. The risk that the applicant now poses to the safety of children is much diminished. We still consider, however, that the applicant poses a real and appreciable risk to the safety of children.

  3. We have set out the reasons why we consider that there is a real and substantial risk that the applicant will behave violently in the future. Even though his violence was mostly directed towards adults in the past, and towards his domestic partners and ex-partners in particular, such violence can affect the emotional and psychological safety of any children who are exposed to it. Further, children’s physical safety may be compromised where a responsible adult becomes violent, because the child may become caught up in the violence (for example, by intervening), or the child may be neglected as a result. If it is true that the applicant drove his current partner out of town in April 2014 in the early hours of the morning as alleged, it would appear that he left his children at home in bed, without any other adult present in the house.

  4. It is quite possible that, if the applicant continues with his current course of reform, he will not pose a risk to the safety of children in the future. It is regrettable that he will not be able to work with youths, as he wishes to do, to help them avoid violent behaviour. However, we hope that he will be able to use his experiences to help young men and others who may be able to benefit from the lessons he has learned.

Order

  1. We make the following order:

  1. The decision of the Children’s Guardian to refuse to grant the applicant a working with children check clearance is affirmed.

**********

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


Registrar

Decision last updated: 17 October 2018

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

5

La Macchia v Minister for Primary Industry [1986] FCA 452
La Macchia v Minister for Primary Industry [1986] FCA 452
Commission for Young People v V [2002] NSWSC 949