DFR v Children's Guardian

[2018] NSWCATAD 184

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DFR v Children’s Guardian [2018] NSWCATAD 184
Hearing dates:	31 May 2018
Date of orders:	15 August 2018
Decision date:	15 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Ms S Leal, Senior Member Prof P Foreman, General Member
Decision:	(1)   The decision of the respondent dated 3 October 2017 to refuse to grant the applicant a working with children check clearance is set aside. (2)   In substitution for that decision, the following decision is made: The applicant is to be granted a working with children check clearance.
Catchwords:	Child protection – Working with children – offence of common assault as a juvenile – offence found proven but dismissed with a caution – relevance to risk of findings in relation to parenting capacity – relevance to risk of finding of intellectual disability – relevance to risk of former partner’s threatening behaviour to assessment of applicant’s risk - decision set aside.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Children (Criminal Proceedings) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69] BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; R v Commission for Children and Young People [2002] NSWIRComm 101 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	DFR (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms A Douglas-Baker   Solicitors: Capellia Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00313847
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

Summary

1. The applicant, who will be referred to as DFR, is a 21-year-old woman who requires a working with children check clearance in order to complete her studies in the field of community services. For this reason, she applied for a clearance on 18 November 2015.

2. The Children’s Guardian, who is the respondent in this case, has the power to undertake a risk assessment under s15 of the Child Protection (Working with Children) Act 2012 (‘the Act’). Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

3. The applicant was the subject of a risk assessment because of a 2013 charge of common assault which had been found proven but dismissed in the Children’s Court with a caution pursuant to s33(1)(a)(i) of Children (Criminal Proceedings) Act 1987.

4. Under section 27 of the Child Protection (Working with Children) Act 2012, the NSW Civil and Administrative Tribunal (‘the Tribunal’) has the power to review a decision of the Children’s Guardian to refuse a working with children check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 of the Administrative Decisions Review Act 1997.)

5. On 3 October 2017, the Children’s Guardian made a decision refusing to grant the applicant a working with children check clearance.

6. The applicant lodged an application for review to this Tribunal on 16 October 2017.

7. On the evidence before us and for the reasons set out below, we have decided that the decision of the Children’s Guardian to refuse the applicant’s working with children check clearance should be set aside and that the applicant should be granted a working with children’s check clearance.

8. Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym DFR has been used for the applicant's name.

Documentation

9. In excess of 3000 pages of material were provided to the Tribunal in relation to this matter. Of this, approximately 2900 pages of material were produced by the Children’s Guardian pursuant to s58 of the Administrative Decisions Review Act and as further documents relevant to the application for review.

10. To assist with the efficiency of the proceedings, Counsel for the Children’s Guardian provided a list of documents to be referred to at the hearing. Whilst we have considered all material before us, there was no dispute that those documents highlighted by the Children’s Guardian, together with the documents provided by the applicant, form the material most pertinent to the issue before the Tribunal: namely whether the applicant poses a real and appreciable risk to children.

Risk assessment

11. A risk assessment was performed for the applicant as a result of a charge of common assault which was dismissed with a caution in accordance with s33(1)(a) of the Children (Criminal Proceedings) Act 1987.

12. The applicant was arrested for the assault on 24 February 2013 and pleaded guilty to the charge the following day. She refused any legal assistance and did not dispute the police facts tendered on sentence. According to the facts, at the time of the incident, the applicant was 16 years old and residing in a residential care facility. The complainant, a male resident of the facility, was also 16 years old. According to the police facts, an argument allegedly broke out between the two of them and both were sent to their rooms. The applicant then emerged from her room, took a small kitchen knife from the kitchen and began pounding on the complainant’s bedroom door and threatening him. Police officers were called to the facility. When questioned, the applicant agreed that she had threatened to hurt the complainant with a knife because she was upset with him and agreed that she had a knife with her when she made the threats.

13. In the refusal decision by the Children’s Guardian, the following findings were made in relation to the common assault offence:

It is noted that [DFR] was a juvenile at the time of the alleged offence and that the matter was considered to have occurred in a peer to peer context. It is acknowledged that [DFR] admitted to the offence and that no actual violence occurred. In addition, the matter was dismissed with caution. The context of the offence and the lower level penalty imposed by the court is considered to reduce the weighting attributed to this provision of the Act…The time elapsed since the alleged offence is 4 years. It is acknowledged that [DFR] has not reoffended since this time….[DFR] was aged 16 years old at the time of the alleged offence in 2013. Her juvenile status at the time may have contributed to her conduct.

Applicant’s evidence

14. The applicant provided written statements to the Tribunal in support of her application and also gave oral evidence before us. We found the applicant to be an honest witness and accept her evidence, a condensed version of which is set out below.

15. At the age of 13, the applicant was removed from her mother’s care and subsequently housed in residential care facilities. Prior to her removal, she had taken on a parenting role for her siblings which included bathing the younger children, cooking dinner, cleaning the house and making school lunches. A 2010 care report described the applicant as a mature child used to making her own decisions and who did not require any assistance with her personal care.

16. In 2015, when the applicant was 18 years old, she gave birth to her son (‘the son’) who was immediately removed from her care and placed in a foster home. The son was removed due to concerns that the applicant and the child’s father (her then partner) were incapable of caring for the child.

17. The son’s father, who is no longer the applicant’s partner, has since threatened the applicant and is being sought by police.

18. The applicant is seeking custody of her son with whom she has regular contact. In the meantime, the applicant continues to have supervised contact with her son with the plan being to reduce the supervision to one instead of two supervisors and to perhaps increase contact visits to three hours. She writes to her son on a daily basis, receives updates both from his foster carers and his daycare facility.

19. After finishing her secondary education, the applicant has completed a:

• Certificate II in Community Services

• Certificate II in Retail Makeup

• Diploma of Youth Work

20. She has completed the first year of a bachelor degree in social work and is a youth representative for the Family and Community Services (‘FACS’) sponsored Youth Consult for Change Group. She has been granted funding by FACS for the courses that teach play therapy and sign language skills, which are needed for the care of children with disabilities, an area of expertise of interest to the applicant.

21. The applicant has also been attending weekly counselling sessions to deal with issues arising from the abuse she suffered as a child, her depression at having her son removed from her and to learn strategies to enable her to assist her son to adjust to not returning home with her after visits with her.

22. The applicant gave evidence that she had been forced to discontinue her studies towards a Diploma in Children’s Services when she was refused a working with children check clearance.

23. The applicant’s evidence that she is not the subject of a financial management order was confirmed by the revocation order by the Guardianship Tribunal on 31 January 2017.

24. In a letter dated 5 August 2016, the applicant’s general practitioner, Dr Nabilah Islam, states that the applicant ‘has not, to my knowledge, ever caused harm to any child or been angry or violent towards any child.’

Report by Professor Susan Hayes

25. Contained on file is a parenting assessment report by Professor Susan Hayes dated 3 March 2016.

26. On the basis of the results of the Kaufman Brief Intelligence Test, Professor Hayes found the applicant to be ‘functioning in the category of mild intellectual disability, at a level lower than 99% of her age peers. She also found the applicant to be ‘in the range of borderline functioning for adaptive behaviour.’

27. Prof Hayes found the applicant’s former partner (and father of her son) to be functioning ‘in the category of borderline intellectual disability for adaptive behaviour, at a level lower than 97% of his age peers.

28. On observing the applicant with her son, Professor Hayes found that ‘[DFR] seemed to be able to cope with the practical tasks associated with [her son’s] care, but had limitations in being able to interpret and respond appropriately when he appeared to be tired or hungry. She did not appear to be able to think of ways to entertain or interact with [him]….[DFR] appears to have a genuine bond with [her son] and is attached to him; she shows some limited skills in responding to [his] behaviours and needs, such as smiling, talking to him, comforting him and attending to his physical needs. However, she does not interpret his cues well.

29. Professor Hayes found the main issue impairing the applicant’s parenting capacity was her intellectual capacity, which Professor Hayes found to be in the range of mild intellectual disability for cognitive reasoning and borderline intellectual disability for skills of adaptive behaviour.

30. She found the applicant to have some capacity to meet her son’s needs in the short term but found her ability to meet her son’s needs in the long term more difficult to predict.

31. She found the parenting capacity of the child’s father to be enhanced if the applicant were present.

32. In terms of the possibility of restoring the child to his parents, Professor Hayes made the following findings:

There may be a realistic possibility of restoration of the child to the care of the mother, but not to the care of both parents together, or to [the father’s] alone. The mother has the capacity and motivation to acquire further skills of parenting and to engage with services in the short and long term. She may be able to parent the child in a good enough manner on her own, with support and assistance from services.

Report of Louise Morrow, Clinical Psychologist

33. The applicant was referred to Ms Morrow for psychological intervention to manage stress and anxiety associated with the removal of her baby and her subsequent contesting of this action. Ms Morrow gave the opinion that the applicant

has demonstrated by self-report that she has the capacity to learn new skills and retain knowledge of such skills. During consultations, [she] has provided examples of those occasions between consultations when she has put the anger management skills she has learned in counselling into practice. She has provided examples of situations in which she might previously have reacted with an angry outburst but now considers the situation, considers the factors contributing to the situation, accepts the emotional reaction, considers her values and goals and responds calmly.

Application initiating care proceedings

34. On 15 August 2015, an application was lodged in the Children’s Court to initiate care proceedings for the applicant’s son. The reasons for the child’s removal were as follows:

• concern for the capacity of the parents to consistently meet [the] physical and emotional needs of the child;

• concern for the parents having a history of anger management and mental health;

• concern the parents have not sufficiently engaged with FACS and other services for the purposes of addressing the concerns prior to the baby being born

35. The applicant opposed the application to remove her son from her care. In her affidavit dated 11 September 2015, the applicant denied having a history of anger management and mental health issues and denied failing to engage sufficiently with FACS prior to the baby being born, stating that she had done all required of her.

Reference from Colleen Jarvis, Caseworker, Family and Community Services

36. In a reference dated 2 May 2018, Ms Jarvis, caseworker Family and Community Services, confirmed that the applicant is enrolled in her second year of a bachelor degree in social work and ‘has been doing well.’

37. Ms Jarvis acknowledged the applicant’s earlier disrupted education stating that:

Despite all the challenges [DFR] has faced, she has maintained a commitment to her studies by engaging external supports on a regular and consistent basis. She has worked very hard especially in recent years with her university studies. This is a testament to [DFR’s] commitment, tenacity and focus to ensure she has a bright future…Family and Community Services continue to actively encourage and support [DFR] to complete her studies.

38. Annexed to the reference is a remittance advice for the applicant confirming a payment by FACS to support her tertiary studies.

Report by Leona Clarke, Board Member of Stepping Stone House

39. Ms Clarke, a former mentor to the applicant, confirmed that in the course of her pregnancy, the applicant attended hospital meetings as requested by her caseworker, including pregnancy/family meetings which Ms Clarke attended as the applicant’s mentor.

40. Ms Clarke reported that:

After the birth of her baby, I visited [DFR] at [the hospital] on the following Sunday, Monday, and Tuesday, staying for several hours on each occasion. I observed [her] to be very happy. She seemed very comfortable when handling the baby, changing his nappy, feeding him and just generally being in the nursery with him. One of the nursery sisters said to me ‘She is truly a natural.’

Reference by Narelle Patterson, Take Charge of Your Life Consultant, Wesley Mission

41. In a letter addressed to the respondent and dated 16 January 2018, Ms Patterson confirmed that she had worked with the applicant for approximately 10 months in her capacity as consultant for the Take Charge of Your Life program, which supports young people 15-25 years who have been in out of home care. Ms Patterson has worked with the applicant in relation to her employment, her overseas travel and her application for the restoration of her child.

42. Ms Patterson writes:

I have come to know [DFR] as a dependable, compassionate, reliable, trustworthy and honest person. I was troubled when she told me that her application for a Working with Children Check had been rejected. …I sincerely ask that the Office of the Children’s Guardian review the decision to decline giving [DFR] a Working with Children Check. It is critical for [DFR] to have a WWCC when she is on placement for her course and then when she is a qualified social worker….A young person who has been in out of home care often experiences poor life outcomes in education, employment, relationships, establishing a stable home and life. [DFR] is meeting these challenges head-on and determined to improve her life in all dimensions.

Affidavits by Ms Linley Burgess, Caseworker

43. In an affidavit sworn on 19 November 2015, Ms Burgess, caseworker for the applicant’s son, provides a narrative of the applicant’s care history. The affidavit includes reports of thoughts of self-harm earlier articulated by the applicant between 2011 and 2013.

44. In an affidavit sworn on 1 March 2016, Ms Burgess provides a narrative on the applicant’s interaction with the organisation in charge of managing her son’s foster care and information in relation to the applicant’s contact arrangements with her son.

45. In an affidavit sworn on 8 April 2016, Ms Burgess provides details of the foster care placement for the applicant’s son. Ms Burgess noted that the child was ‘currently attending supervised contact with both parents’ and that ‘there have been no significant concerns reported in relation to the parents’ presentation or behaviour during contact.’ The affidavit also suggests problems within the relationship between the applicant and the child’s father.

Family & Community Services (FACS) Care Plan

46. On 8 April 2016, a care plan for the applicant’s son was filed in the Children’s Court.

47. The care plan states that the applicant’s son was in foster placement and had contact with both parents three times a week for one hour. According to the care plan, restoration of her son to the applicant was not considered a realistic possibility at that time.

48. Included in the concerns in relation to the applicant’s parenting capacity are the following:

• her mild intellectual disability for cognitive reasoning and borderline disability for skills of adaptive behaviour;

• the observation that she had left the child unattended on a change table and had difficulty in recognising and interpreting cues from the child;

• disagreements in parenting practices between the applicant and the child’s father.

Report to Children’s Court dated 27 October 2016

49. A section 82 Report to Children’s Court under the Children and Young Persons (Care and Protection) Act 1998 was made for the applicant’s son on 27 October 2016.

50. The following observations are made in the report in relation to the applicant’s contact with her son:

Since the long term orders were processed, [the son] has seen his mother six times each time was for 2hrs….Throughout these contacts, [the son] and [DFR] appear to interact well. The level of [DFR’s] parenting capacity is at times in question due to the lack of skills she presents with in contact. An e.g.of this would be that she would feed [her son] whilst he is crawling around and not put him in his pram. [DFR] has at this point said why won’t he stay still are the carers not having a calm down time before food with him. [DFR] puts in a lot of effort within the contact time and is very appropriate and loving towards [her son.]

Orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal

51. On 16 October 2014, a financial management order was made for the applicant. In making this order, the Guardianship Division of this Tribunal found that the applicant was ‘incapable of dealing in a reasonably competent fashion with financial matters. The evidence supported that at the time [DFR] does not have the ability to fully understand the investment of her funds, budgeting and expenditure. She remains vulnerable and at risk from influence from other people regarding her money.’

52. In making the order, the Guardianship Division noted that:

[DFR] has just turned 18 years of age. She has very firm views about how to manage the proceeds she is to receive from the victim’s compensation and the amount currently held by [her care facility]. It is expected that she will work with the NSW Trustee on the management and investment of those funds. After two years, [DFR] may be able to show that she can manage those funds and is no longer financially vulnerable to other people.

53. On 31 January 2017, the financial management order made for the applicant was revoked on the basis that DFR had the capacity to manage her own affairs.

54. In the revocation decision, the following background details were provided for the applicant:

[DFR] has initially been reported to have an intellectual disability. However a report of her psychological evaluation on 24 August 2015 by Mr Istvan Schreiner, Clinical and Forensic Psychologist, concluded that she had demonstrated no evidence of intellectual disability and no observable symptoms of any diagnosable disorder or of mental health issues.

55. Commenting on her oral answers to their questions at the hearing of the revocation application, the tribunal members found DFR’s answers to the questions and her presentation generally ‘appeared to be well-considered, organised and logical. She presented her views in a confident and occasionally forthright manner.’

56. The applicant’s general practitioner provided a letter of support for the applicant’s revocation application stating that DFR:

Is a responsible young lady. I have discussed her intentions on how she plans to spend money and I believe she is more than able to wisely manage her own finances.

Judgment by Robison J

57. On 5 October 2017, Robison DCJ confirmed the earlier orders of the Children’s Court that there was no realistic possibility of restoration of her son to either the applicant or the child’s father and allocated to the Minister of Family and Community Services parental responsibility for the son until the age of eighteen years.

58. The child’s father did not attend the court proceedings. On this basis, Robison DCJ found that he ‘has absolutely no interest in the matter whatsoever, otherwise the Court would have heard from him.’

59. In relation to the immediate removal of the child from the applicant’s care, Robison DCJ noted that the child

was assumed into care on the very day that he was born. I have to say that of itself would have caused considerable concern to…his mother. Some may take the view that the Department acted prematurely. Perhaps some may take the view that at least for the few days that she was in hospital there would have been adequate care and protection for the child in any event due to the responsibilities that the hospital had at that time.’

60. In relation to the applicant’s intellectual ability, Robison DCJ found that despite the opinion that the applicant had a profound intellectual disability:

[t] he use of the word ‘profound’ in my view is not supported by the evidence in this appeal that I have seen, particularly having regard to the reports of Professor Hayes and Dr Banks. ‘Profound’ means exactly what it says, it means significant and obvious. That is not the case here. Certainly I am satisfied that [DFR] does indeed have an intellectual disability as indicated by the experts when they gave their evidence before me. I would not say it is a profound intellectual disability, so to that end I would not agree with that assessment as indicated in the application. [at 7]

61. Robison DCJ instead was satisfied that the applicant has a mild intellectual disability:

the reasons for that can be clearly gleaned from the experts’ reports, which have been the subject of oral evidence as well from those experts. To find to the contrary would be against the weight of the evidence, and I make that now as a formal finding, that she indeed does have an intellectual disability. [at 18]

62. Robison DCJ makes it clear, however, that

[t]he mere fact that somebody has a disability is not of itself something that would prevent a person from being a responsible parent for any child. To some extent the legislature has recognised that as well. Pursuant to s71(2) [of the Children and Young Persons (Care and Protection) Act 1998]

The Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:

(a) a parent’s or primary care giver’s disability; or

(b) poverty

So clearly those particular factors as discrete factors cannot form the basis of a court’s conclusion of themselves that the needs of a child are likely not to be met.

63. In relation to the applicant, Robison DCJ states that:

it should be firmly placed on the record that this Court finds that the mother has a genuine love and affection for the child. That has always been the case. That will never ever change. I make that as the first finding in this appeal. No issue is taken about that from the Independent Legal Representative nor the Secretary. Everyone accepts this mother has a genuine love and affection for the child. [at 16]

It could be the case that [DFR], given her own disruptive upbringing, would be careful to ensure that her child would not be subjected to the same turbulence that she herself had in her earlier life.

64. Robison DCJ noted his concerns at the risk of domestic violence if the child’s father were to return to the applicant’s premises. He also expressed more general child protection concerns in relation to the child’s father.

65. In relation to the applicant’s demeanour, Robison DCJ made the following observations:

At times, [DFR] seemed to demonstrate a remarkable memory for certain dates, events, times and persons. She was somewhat articulate in her evidence and certainly, very assertive in the way that she presented to the Court. In some respects, when I listened to her evidence, I was asking myself “Does this person really suffer from a mild intellectual disability?’ but having carefully reflected upon her evidence and having reviewed the reports, it would seem to me that in part it would seem that that is one of the hallmarks of a person with that kind of disability,

66. Robison DCJ considers at length the status of the relationship between the applicant and the child’s father and any perceived risk the child’s father may post to the child:

It would be most unfortunate if [the child] were to be returned to the sole care of the mother even with support services, for [the father] to re-emerge and embark on a course of domestic violence, which would have serious and deleterious effects not only upon [DFR] but on [the child] himself…He is entitled to live a normal, happy and secure life and, unfortunately, the risk that I consider is real and present as far as [the father] is concerned is there and it cannot be ignored by the Court. [at 60-61]

67. When considering issues of abuse to the child, Robison DCJ focuses his concern not on the applicant herself but on the child’s father:

It is not contended that [DFR] would deliberately harm or abuse [her son], indeed far from it. It has been submitted to the Court that it would be satisfied that [the son] is at risk of deliberate or inadvertent physical abuse or ill-treatment at the hands of his father, and to this extent I note the submissions about what the mother said about the father, and I have already referred to that in this judgment that is indeed a risk. It has been identified and made out on the evidence and I accept that that is a risk and an unacceptable risk… The risk of psychological harm into the future if [the child] were to be restored even on a gradual basis in my view is high. I say that, mainly, I must say because of the ongoing occasional presence of [the father]. If [the child] were exposed to any domestic violence, that would clearly place him at risk of psychological harm. [at 70-72]

68. Indeed, in relation to the applicant, Robison DCJ recommended an increase in her contact with her son:

I am of the view that the mother should be able to see the child more often than not and I appreciate it is a minimum period in the care plan but it is just something that I do ask the Department to please consider.

Report by Istvan Schreiner

69. In August 2015, the psychologist Istvan Schreiner completed a psychological evaluation for the applicant, then aged eighteen years, in relation to her request for parental responsibility of her newborn son.

70. Mr Schreiner noted that the staff at the supported living facility where the applicant was living believed her capable of looking after her son and had requested the assessment from Mr Schreiner.

71. Following the administration of a series of psychological tests, Mr Schreiner found that the applicant was not experiencing symptoms indicative of depression, anxiety or stress or any emotional distress associated with mood and/or anxiety disorders.

72. Following the administrative of a Personality Assessment Inventory, Mr Schreiner described the applicant as ‘friendly and extroverted’:

She will usually present a cheerful and positive picture in the presence of others. She is able to communicate her interest in others in an open and straightforward manner. She usually prefers activities that bring her into contact with others, rather than solitary pursuits and she is probably quick to offer help to those in need of it.

73. To determine the applicant’s intellectual ability Mr Schreiner administered the ‘Wechsler Abbreviated Scale of Intelligence.’ He also considered the result of the Adaptive Behaviour Assessment System – Second Edition (ABAS-II) completed by the applicant’s case manager.

74. The applicant earned a Verbal IQ in the Average range (VIQ: 95; 37th percentile) and a Performance IQ Index in the Borderline range (PIQ: 77; 6th percentile).

75. According to Mr Schreiner ‘These results suggest age appropriate verbal skills and significantly delayed non-verbal (visual) skills. [DFR’s] scores remained outside the disability range (a score below 70 on either the verbal or non-verbal scale.)

76. Mr Schreiner found the ABAS-II to be a valid assessment of [DFR’s] adaptive behaviour. The General Adaptive Composite score (GAC) summarises performance across all skill areas excluding work. [DFR] obtained a GAC score of 104 which placed her in the average range and on the 61st percentile of young people of the same age.

77. In relation to her intellectual ability, Mr Schreiner found that ‘the current assessment results show no presence of intellectual disability. It is likely that [DFR] may present with processing difficulties and her visual/nonverbal skills are somewhat delayed, her verbal abilities and adaptive skills are intact.

78. Mr Schreiner identified the following risk factors in relation to [DFR’s] parenting capacity - her young age, her lack of social support and the stability of her relationship with the child’s father – but found that [DFR] was fit to parent a child.

79. In this regard, he made the following findings:

In my opinion, [[DFR] is emotionally and cognitively fit to parent a child and her parenting rights should be reinstated without delay. She presented with no mental health issues and no presence of intellectual disability was detected (although some of her nonverbal problem solving skills and executive functions may be low). She showed adequate personal warmth and a need and ability to form attachments. She demonstrated relevant knowledge of child development and needs of a newborn. She was aware of her own limitations, such as ability to cope with stress and lack of family support. She was aware of the importance of social support and she was willing to ‘reach out’ and utilise support services and available friends’ support.

[DFR’s] nurturing attributes are also evident from her affidavit in 2009. It states ‘[DFR] disclosed that she does the majority of the parenting of her siblings, including bathing, cooking dinner, cleaning the house and making their school lunches.’ Considering that at the time she was experiencing ongoing physical, emotional and sexual abuse, her behaviour shows genuine resilience and care for younger children.

Real and appreciable risk

80. In this application, the issue for determination is whether the applicant poses a risk to the safety of children. The test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476.

81. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

82. The Child Protection (Working with Children) Act 2012 (‘the Act’) came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15(4A) and s 30(1A) into the Act and apply to this application. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

Section 30(1) matters

83. In determining this application, the Tribunal must consider those factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

84. The offence that caused the risk assessment (‘the trigger offence’) was the applicant’s conviction for common assault in 2013. She was 16 years old at the time of the offence.

85. On the evidence before us, we are satisfied that the applicant had a knife on her at the time of the incident and made threats to stab another resident in retaliation for a similar threat made against her.

86. We accept that the circumstances of the incident were serious but given that they occurred as a time in the applicant’s life that no long represents her living environment – namely when she was a resident in a care institution where, on the evidence, there was a group of young persons with challenging behaviours in an environment that often lacked structure - we are satisfied that the likelihood of such an incident re-occurring is low.

87. The evidence before us is that, particularly since the termination of her relationship with her former partner, the applicant has been living a productive and stable life focusing on her studies, her work, her access visits to her son and her legal attempts to seek restoration of him to her.

88. It is the submission of the Children’s Guardian that the applicant provided false information in her application for a working with children check clearance. This is because she did not supply details in response to the question to provide details of ‘children…who have lived with you.’ The applicant gave evidence that she did not list her son because he had never lived with her and because she had interpreted the question as only requesting details in relation to any children who had ever lived with her. It is our view that due to the drafting of the request, such an interpretation was open to the applicant. We are not satisfied that she intended to withhold relevant information from the Children’s Guardian.

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

89. The trigger offence occurred on 24 February 2013, which is now over five years ago.

90. Since this time, the applicant has given birth to her son, has completed TAFE studies and is now in her second year of study towards a bachelor degree in social work. She is also a youth representative for the FACS sponsored Youth Consult for Change Group.

91. In his judgment considering the restoration of her son to the applicant, Robison DCJ found that the applicant ‘has a genuine love and affection for the child.’ On our observation of the applicant and in light of her oral and written evidence, we agree that the applicant is strongly bonded to her child.

92. We do not accept the submission by the respondent that the applicant poses a risk to children by reason of her mild intellectual disability. Whilst we accept that Professor Hayes found the applicant to have such a disability - an opinion that was accepted by Robison DCJ - we note that a contrasting opinion was provided by Dr Schreiner who found the applicant to be ‘outside the disability range.’

93. Certainly, the applicant impressed us in her evidence as being articulate and able to respond to the complex questions put to her by counsel for the Children’s Guardian in cross-examination. We also give weight to the applicant’s successful completion of her first year of tertiary studies and her continuation of these studies. In light of this, we give less weight to the opinion of Professor Hayes and greater weight to our observations of the applicant during her lengthy cross-examination. We also give weight to the observations of the Guardianship Division of this Tribunal on 31 January 2017 that the applicant ‘appeared to be well-considered, organised and logical’ and the findings that she is capable of managing her financial affairs and is not required to be under a financial management order.

94. If the applicant does have an intellectual disability, it clearly does not impede her ability to articulate clearly, to manage to respond to difficult and lengthy cross-examination, to successfully complete the first year of tertiary studies and university and to manage her own household and financial matters.

95. We are not satisfied that she would pose a risk to children because of any intellectual disability she may have. Indeed, we have some concern about the submission by the Children’s Guardian that the applicant poses a real and appreciable risk to the safety of children simply because of the expert opinion that she has an intellectual disability.

96. In raising this concern, we note that s71(2) of the Children and Young Persons (Care and Protection) Act 1998 provides that the Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of a parent’s or primary care giver’s disability.

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

97. The applicant was 16 years old at the time of the trigger offence. She was 18 years old when her son was removed from the care of the applicant and the child’s father. The applicant was 21 years old when the District Court confirmed the orders of the Children’s Court allocating parental responsibility for the applicant’s infant son to the Minister.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim (s30(1)(d))

98. The fellow resident at the applicant’s care institution was the victim of the trigger offence. He was 16 years old at the time of the offence. He was four and a half months older than the applicant.

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

99. The victim of the trigger offence was a fellow resident as the applicant’s care institution. He is four and a half months older than the applicant.

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

100. The victim was 16 years old at the time. The applicant was aware of his age.

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

101. The applicant is now 21 years old.

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

102. The trigger offence is the applicant’s only criminal conviction. Since the offence occurred, the applicant has given birth to her son, has completed TAFE studies and is now in her second year of study towards a bachelor degree in social work. She is also a youth representative for the Family and Community Services (‘FACS’) sponsored Youth Consult for Change Group.

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

104. On the evidence before us, we find that there is little likelihood of any repetition of offending behaviour by the applicant. In reaching this view, we give weight to the fact that it is now five years since the assault, which took place in a juvenile institution where, according to the applicant – whose evidence in this regard was not disputed - many of the residents had been engaging in disruptive behaviour at the time of the offence.

105. The applicant is no longer living in a juvenile institution. Instead, she now has her own accommodation and employment and has furthered her education to tertiary level. We give weight to the fact that the applicant has received counselling since the offence which has included strategies for anger management and for dealing with stressful situations.

106. The applicant continues to remain highly motivated to have her son restored to her care. The evidence before us is that the applicant diligently attends all contact visits with her son and that longer visit times have been recommended for her. Her care and concern for her child would, we find, greatly diminish the repetition of any offending behaviour.

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

107. We accept that whilst there has been no restoration of the applicant’s son to her care, a recommendation was made by Robison DCJ to increase contact hours between the applicant and her son. We also accept on the evidence before us that an increase in the length of each contact visits has been proposed by the caseworker for the applicant’s son.

108. The findings of Robison DCJ disclose a concern for a possible risk posed to the child not by the applicant herself but by the child’s father.

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

109. No further matters have been put forward by the Children’s Guardian.

Conclusion on section 30(1) matters

110. For the following reasons, we find that the applicant does not pose a real and appreciable risk to the safety of children.

111. Although there is expert opinion to the effect that the applicant has a mild intellectual disability, this has not impeded her studies at tertiary level nor has it impeded her from managing her financial matters and household responsibilities. As a witness, she impressed up with her clear, comprehensive and relevant responses. We saw no evidence of conceptual or cognitive problems which would be expected in a person with a mild intellectual disability.

112. In any case, we find it difficult to understand the relevance of a disability diagnosis to the issue of eligibility for a working with children check clearance. A working with children check clearance aims to protect children from physical violence or sexual predation. It is not a general safety check for employers. For example, it would clearly be dangerous for a blind person to be left in unsupervised charge of a group of infants. This does not mean that a blind person could never receive a working with children check clearance.

113. In our view, it would be wrong to introduce assessment of ability/disability as part of risk assessment for a working with children check clearance. The provision of a working with children check clearance indicates that a person does not present an established risk to the safety of children, with the factors that trigger a risk assessment being prior violence or sexual predation. It is up to employers to assess other aspects of child safety in deciding whether to employ a person, and the duties they should be allocated. There are many people with a mild intellectual disability who have a working with children check clearance and are working in child care. People who are blind may well be allocated the task of teaching braille or computer studies to students with vision impairment, but would not be allocated tasks that they could not perform safely. It remains the role of employers and other regulatory authorities to decide whether a person can be employed to carry out particular roles and what supervision is needed to ensure that children are safe, based on relevant childcare and other legislation. The evaluation of safety issues related to the risk, if any, caused solely by the presence of a disability is not the function of a working with children check clearance.

114. In her reference, Ms Jarvis, Caseworker, confirms the applicant’s current tertiary studies in social work and confirms that FACS continue to actively encourage and support her to complete her studies. There is no suggestion that Ms Jarvis, or indeed FACS in general, consider the applicant to be unsuitable for work as a social worker. Implicit in this reference is the view that there would be nothing to give doubt as to the applicant’s suitability to be a social worker. Indeed, FACS has been financially supporting her studies.

115. We accept the findings of Robison DCJ that there is no evidence of the applicant ever harming her son. We also find that a major consideration in his decision not to restore her son to the applicant was the history of domestic violence by the child’s father towards the applicant. In an application for a working with children check clearance, any threatened or actual violence by the child’s father should not be used to find that the applicant herself poses a real and appreciable risk to the safety of children.

116. Furthermore, there is no evidence before us to indicate that the applicant’s son was not restored to her because she poses a real and appreciable risk to the safety to children.

117. In relation to the trigger offence, this is a matter that occurred when the applicant was herself a child and living in difficult circumstances in a juvenile institution. The applicant has transformed her life since 2013 and we find that the likelihood of any further offending behaviour to be low.

118. On the evidence before us, and for the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children.

Reasonable person & public interest test - s30 (1A)

119. Section 30 (1A) of the Act applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order

Reasonable person test

120. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

121. In order to properly consider this test, a “reasonable person” would need to know about the trigger offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, her conduct since then and any expert assessment made for her.

122. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst she is engaged in child-related work. In this regard, the reasonable person would note the circumstances surrounding the offending behaviour in 2013 and would accept that the applicant now has matured, is no longer living in a care institution and has been managing her life in a careful and responsible manner, focusing on her work, her tertiary studies and her contact visits with her son. The reasonable person would give weight to the support given to the applicant by the Department of Family and Community services and in particular their support for the applicant to complete her studies in social work.

Public interest

123. In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

124. On the evidence before us, we are not satisfied that the applicant poses a risk to children. Having regard to the material before us, and giving particular regard to the benefit of the applicant’s studies in social work and her continued involvement with her son and concern for his welfare, we are satisfied that it is in the public interest to make the orders sought.

Decision

125. For the reasons set out above, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

126. The decision of the Children’s Guardian dated 3 October 2017 to refuse to grant the applicant a working with children check clearance is set aside. In substitution for that decision, the applicant is to be granted a working with children check clearance.

Orders

1. The decision of the respondent dated 3 October 2017 to refuse to grant the applicant a working with children check clearance is set aside.

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

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

Registrar

Amendments

15 August 2018 - date of orders and decision corrected

Decision last updated: 15 August 2018