DHF v Children's Guardian

[2018] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHF v Children’s Guardian [2018] NSWCATAD 152
Hearing dates:	22 June 2018
Date of orders:	18 July 2018
Decision date:	18 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Prof P Foreman, General Member
Decision:	(1) The decision of the respondent dated 12 December 2017 to cancel the applicant’s 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:	ADMINISTRATIVE LAW - s27 of the Children Protection (Working with Children) Act 2012 – cancellation of working with children check clearance – common assault on adult female – earlier contravention of apprehended violence orders -– whether applicant poses a risk to the safety of children – neutral position adopted by Children’s Guardian - clearance granted.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIRComm 101 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	DHF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Jeliba (Applicant) G Mahony (Respondent)   Solicitors: Mills Oakley (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00010686
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, a 37-year-old Aboriginal man from rural Australia, seeks a review of the decision of the Children’s Guardian to cancel his working with children check clearance. As a result of his conviction for the common assault and intimidation of his wife, the Children’s Guardian had ordered that a risk assessment be conducted for the applicant and subsequently cancelled his clearance. The applicant requires a working with children check clearance to continue his voluntary work as a sporting coach and his paid work as an Aboriginal Men’s Worker for a charitable organisation which has provided evidence in support of the application.

2. At hearing, the Tribunal heard evidence from the applicant and from the psychiatrist Dr Olaf Nielssen. The applicant’s wife, who provided a lengthy affidavit in support of her husband’s application, was not required for cross-examination.

3. After having heard from the applicant, the Children’s Guardian advised that it would be taking a neutral position in the case and would no longer be opposing the applicant’s request for a working with children check clearance.

4. On the evidence before us and for the reasons set out below, we have decided that the decision of the Children’s Guardian to cancel 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.

5. 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 DHF has been used for the applicant's name.

Real and appreciable risk to children

6. In a case such as this, where the applicant had been subject to a risk assessment, the Children’s Guardian must grant a working with children check clearance unless satisfied that the applicant poses a risk to the safety of children; s18(2) of the Child Protection (Working with Children) Act 2012. (‘the Act’). The test to be applied is whether the risk is "a real and appreciable risk": s5B of the Act.

7. The jurisdiction of the Tribunal 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].

8. This Tribunal has the power to review and set aside the decision of the Children’s Guardian to cancel the applicant’s clearance. (s63 of the Administrative Decisions Review Act1997). In determining this application, the Tribunal must consider those matters contained in section 30 of the Child Protection (Working with Children) Act 2012. Safety of children is of paramount concern in determining this application: sections 3 & 4 of the Child Protection (Working with Children) Act 2012.

Risk assessment

9. The applicant was granted a working with children check clearance on 8 September 2015.

10. In February 2017, he was convicted of the common assault and intimidation of his wife. The couple’s young children were in the house at the time of the offence. The applicant received a twelve-month good behaviour bond, which expired in February this year.

11. In addition to this matter, the applicant has the following criminal convictions:

• Common assault (2003)

• Breach of Apprehended Violence Order (2008, 2009, 2010)

12. The applicant’s 2017 conviction for the common assault and intimidation of his wife triggered a risk assessment by the Office of the Children’s Guardian who cancelled the applicant’s working with children check clearance on 12 December 2017.

Applicant’s evidence

13. There was no objection to the applicant’s evidence, which was provided by way of a statement to the Tribunal in addition to oral evidence before the Tribunal. We found the applicant to be a genuine and honest witness whose evidence was clear and credible.

14. In his affidavit, the applicant confirmed that he lives in rural NSW with his wife and the two young children they have together. Between them they have nine children between the ages of 2 and 17 years.

15. The applicant left school at the end of Year 9 and, as a young man, worked in a variety of jobs including as an electrician, traffic controller and labourer.

16. Over the past eight years, he has been a case management worker, a drug and alcohol trainee, a residential support worker. He has also run volunteer teaching programs for local children focusing on art and traditional Aboriginal culture. He is currently employed as an Aboriginal Men’s Worker.

17. The applicant has completed a TAFE Certificate IV in Mental Health and Alcohol and other Drugs and is currently completing a Certificate IV in Aboriginal Family Wellbeing and Violence Prevention Work.

18. In his oral evidence, the applicant described a childhood on an Aboriginal mission during which he witnessed regular physical violence. He now understands the violence to have often been exacerbated by alcohol abuse:

I can now see how damaging this behaviour is to children who witness it. For all of my childhood, teenage years and most of my adult years, I did not think about whether there was anything wrong with violence. It was normal to me. I picked up this terrible behaviour and continued it myself.’

19. The applicant was sexually assaulted as a six-year old child and told the Tribunal that he has now begun to deal with the effects of the abuse upon him. He described having curtailed his consumption of alcohol in 2009 and describes his relationship with his wife, which commenced in 2010, to be a good one. The applicant and his wife regularly attend church with their children.

20. The applicant explained the lead up to the common assault of his wife in 2017. At the time, he and his wife had been under substantial financial pressure and had trouble finding care for their young children so they could work to pay off their debts.

21. In oral evidence before the Tribunal the applicant described teaching children in his local community about their Aboriginal culture and coaching children in the local football teams. Following the cancellation of his working with children child clearance, he has now stopped this work.

22. When asked about his offending history between 2003 and 2010 the applicant told the Tribunal that:

It breaks me inside that I was that monster back then. We thought domestic violence was normal when I grew up but it’s not normal. The stuff I read was heartbreaking because I hurt my kid’s mother which is not acceptable. I feel like a hypocrite. I get up and try to do better every day.

23. When asked about the hiatus of offending between 2010 and 2017 the applicant gave credit to his wife as ‘his rock.’ He told the Tribunal that he no longer drinks or smokes and does not take drugs. He focuses his time on his family and attends church every Sunday.

24. Following the 2017 offence, he has attended some counselling to manage this trauma and has gained substantial support and assistance from his employer. He and his wife have also been watching marriage counselling videos as tools to ensure their marriage remains strong. The applicant is confident that he will not offend again telling the Tribunal that he doesn’t want to let his family or his community down again. When asked by members of his community why he is no longer involved in football coaching and the teaching of cultural programs, he tells them it is because he was a perpetrator of domestic violence and is committed to bettering himself now. He agreed that witnessing domestic violence affects children terribly by being detrimental to their learning and their sleeping habits. He believes he now has a clear insight into the consequences of domestic violence.

25. He derives enormous support from his church and his pastor is always available to speak to the applicant about any issues. He agreed that he would be able to access counselling support through his place of study in a larger rural centre. The support he has from his wife and his church community will, he believes, stop him from reoffending. He also doesn’t want to let down his employer and knows he would lose his position were he to engage in any domestic violence offences.

Evidence of the applicant’s wife

26. The applicant’s wife is a Probation and Parole Officer who has known the applicant since 2004. In her affidavit she writes that:

Since 2004, I have known [DHF] to be an intelligent and kind man. I also knew that he loved his children very much and that he would be kind to my own children.

27. The applicant’s wife describes her marriage with the applicant to have ‘generally been a very happy and supportive one’ and that the applicant has not been violent towards her since the 2017 incident.

28. The applicant’s wife was not required for cross-examination and no objection was taken to her evidence.

Evidence of the applicant’s employer

29. The applicant’s employer, who is the chief executive officer of a large not-for-profit organisation, provided an affidavit in support of the applicant’s application for a working with children check clearance. The organisation frequently works with women and children who are the victims of domestic violence. A risk assessment was conducted for the applicant prior to his employment. At the time of his employment, the applicant had disclosed his criminal history, including the 2017 offence.

30. In their affidavit, the applicant’s employer states that:

It is particularly important to [the organisation’s] work that in…communities with high rates of domestic violence, we engage Men’s Workers who can show other men that there is a pathway out of domestic violence. In reaching the decision to offer the job to [DHF] it was important to [the organisation] that [DHF] had been so transparent with us and expressed what appeared to be genuine remorse for his past behaviour.

31. The applicant’s contract expires in mid-2018 but the applicant’s employer anticipates that his contract will be renewed for 2019, describing him as ‘a highly valued member of our organisation.’

32. The applicant has approached the organisation to develop a film on domestic violence in which he would share his past mistakes. The film could then be used as a resource to educate other men about the impacts of domestic violence.

33. The applicant’s employer describes him in the following terms:

At all times, I have been impressed with [DHF’s] attitude and commitment to his job. He has exceptional leadership qualities and a real ability to communicate with influence about the need for men to stop violence against women and children. From my observations of [DHF], he genuinely cares about his community; he is remorseful for what he has done to his previous partner, his current wife and to his children. He is motivated by a strong desire to change, to grow and to be a good husband and father. I have seen the effect he has on other men when he speaks of his past wrongdoings and his vision for a different way of being, which is respectful of women and children…If [DHF] does not regain his clearance, that is not fatal to his work with [the organisation] but it will limit his effectiveness as it is important for adult males to model behaviour for the next generation. [DHF] did not benefit from this modelling as a child victim of domestic violence himself. Men, especially in small communities, need to step up to be part of the solution. For the reasons set out above, I am afraid that we will not be able to find anyone as skilled as [DHF] to do that job.

34. No objection was taken to the evidence of the applicant’s employer, who was not required for cross-examination.

Evidence of the applicant’s former partner

35. The applicant’s former partner, with whom he has four children, provided a letter in support of his application for a working with children check clearance.

36. She described her relationship with the applicant in the following terms:

[DHF] and I were very young when we started dating. We were very immature and foolish. The relationship between [DHF] and I could get very intense. On a few occasions, [DHF] and I could get very intense. Each of us had a temper and we would get in to heated arguments. On a few occasions, [DHF] became jealous and violent and the police became involved…As [DHF] and I grew up and matured, we also grew apart and our relationship ended in 2008. Since our relationship ended, I have seen positive changes in [DHF]. I remain good friends with [DHF] and this has benefitted our four children. I am also friends with [DHF’s] wife. [DHF] travels to visit me and our children two or three times a month. During the school holidays, the children often travel to stay with [DHF]. He is a great Dad to our kids.

About one year ago, [DHF] came to apologise to me and the children…He was crying and kept apologising for the way that he treated me during our relationship. Then he apologised to the children as well. [DHF] explained that he and I started our relationship at a young age. He then explained that the relationship had some intense moments and that he was sorry for the pain that his actions had caused to me and the children. [DHF] finally explained to the children that he and I are on good terms and that he is trying to make amends. This was a very emotional experience for all of us but I appreciated that [DHF]had made such an effort to convey how sorry he was for what happened between us.

37. No objection was taken to the evidence of the applicant’s former partner, who was not required for cross-examination.

Evidence of Dr Nielssen

38. Dr Olaf Nielssen, psychiatrist, prepared a risk assessment report for the applicant.

39. Dr Nielssen found the applicant to have no obvious signs of neurological disorder or any cognitive distortions, such as projection of blame, to indicate the presence of maladaptive personality traits. He did not meet the accepted criteria for the diagnosis of any psychiatric disorder and there was no evidence of a specific developmental or learning disorder, acquired brain injury, medical illness affecting mental function, psychotic illness or severe mood disorder.

40. It is Dr Nielssen’s view that the applicant is unusual for an Aboriginal man raised in a disadvantaged area of rural Australia in that he has never been to prison, has been employed consistently from the time he left school and has a responsible attitude to the care of his own children.

41. The applicant scored 9/40 on the violence risk assessment scale, which places him in the low range for probability for further violent offending. His scores on the clinical and risk management component of the scale would be zero, which means that no current risk factors for future violence could be identified. Dr Nielssen did not find that the applicant required any specific intervention to mitigate the potential for violence, or to prevent relapse into alcohol use.

42. According to Dr Nielssen

Based on the information that is available, including a clinical evaluation of [DHF] and a review of the opinions of other people about his character and work in the community, I do not believe that [DHF’s] continued work as a men’s worker would affect the safety, welfare and well-being of children placed in his care. Moreover, there is a well-recognised need for the kind of cultural and counselling work performed by [DHF] in [his] community, and excluding him from working with children might itself have the effect of harming children under the care of the men that [DHF] looks after.

43. In oral evidence before the Tribunal, Dr Nielssen gave the opinion that the applicant was not a danger to children in any area and that he wouldn’t have any concerns about him in any area. He was aware of the applicant’s history of domestic violence offences but described him as having made a remarkable recovery and gave the opinion that the applicant has redressed earlier emotional problems.

44. Dr Nielssen confirmed his opinion that the applicant did not require any intervention above the current strategies he was employing to minimise his risk of reoffending namely the strength of his marriage, the support of his church, the nature of the applicant’s work and his social standing within the community. Dr Nielssen did not believe that professional counselling would necessarily improve upon the therapeutic value of the applicant’s current circumstances.

45. Dr Nielssen took objection to the Children’s Guardian’s concern that the applicant’s failure to address his own trauma could lead to further incidents of violence. He told the Tribunal:

That question upsets me. There is a traumatised community and an individual who rises above it and this is given no credit by the evangelical approach of the Children’s Guardian.

46. He told the Tribunal that it was unusual for an Aboriginal man from the applicant’s community never to have spent a night in custody. Dr Nielssen highlighted the following strategies that would assist the applicant not to reoffend:

• keeping busy;

• continuing dialogue with his wife;

• continuing to accept the guidance of the church as to how to better lead a life;

• continuing his employment with, hopefully, the availability of more supervision.

Section 30(1) matters

47. 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))

48. The offence that caused the risk assessment (‘the trigger offence’) was the common assault and intimidation of the applicant’s wife in early 2017.

49. The offence was serious in that it involved a physical assault on his wife in the presence of his young children.

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

50. The trigger offence occurred on 29 January 2017, which is almost 18 months ago. The applicant was given a twelve-month good behaviour bond which has now expired and which was never breached. Prior to this most recent offence, the applicant had not committed any criminal offences for a period of seven years. Between 2003 and 2010, he was convicted of common assault and three counts of breaching an apprehended violence order against his former partner.

51. Since the 2017 offence, the applicant has committed no further offences. He has reconciled with his wife and has returned to the family home. He continues to work as an Aboriginal Men’s Worker in his local community and is highly valued by his community. He attends church on a regular basis with his family.

52. Between 2010 and 2017, the applicant was employed in a number of roles including as a case management worker, undertook a TAFE Certificate IV in Mental Health and Alcohol and Other Drugs and carried out a number of volunteer roles, including cultural and musical programs for local children. He has also coached under-18s football teams.

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

53. The applicant was 36 years old at the time of the trigger offence. He was aged between 23 and 30 years of age in the period of offending between 2003 and 2010.

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))

54. The applicant’s wife was the victim of the trigger offence. She was 35 years old at the time of the offence.

55. The victims of the applicant’s offending between 2003 and 2010 were adult women around the same age as 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))

56. The victim of the trigger offence was the applicant’s wife, who is one year younger than him.

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

57. The victim was not a child.

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

58. The applicant is now 37 years old.

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

59. The applicant has two convictions for common assault, the first in 2003 and the second in 2017, when he was also convicted of intimidation. Between 2003 and 2010, there were three breaches of apprehended violence orders made against him.

60. This is not a record to be proud of although we give weight to the opinion of Dr Nielssen that, as an Aboriginal man from a disadvantaged background and living in a remote community, the applicant is unusual in having never been to prison and having been consistently employed since leaving school.

61. Between 2010 and 2017, the applicant had no convictions, was consistently employed and in a stable and ongoing marriage. He has the continued support of his employer who, prior to employing him and with knowledge of the charge of assault against him, cleared him to work following an independent risk assessment.

62. The applicant impressed us as an honest witness with insight into his offending behaviour and useful and viable strategies to avoid a relapse. We are buoyed by the opinion of Dr Nielssen who was also impressed by the strategies employed by the applicant to maintain a stable and violence-free life.

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))

63. 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 report and evidence of Dr Nielssen who places the applicant in the low range for probability for further violent offending and who could identify no current risk factors for future violence.

64. We accept the evidence of the applicant and his wife that their marriage is stable and that since the 2017 offence, they have employed strategies to ensure they are communicating well and managing any pressures that may arise. We accept the benefit of the support provided by the applicant’s church and the counselling support provided by the applicant’s pastor. We accept the applicant’s evidence that his commitment to his marriage, his children and his employment as an Aboriginal Men’s Worker are powerful motivators to ensure he does not re-offend. We give weight to Dr Nielssen’s opinion that the applicant’s marriage, family, church and employment would minimise any risk of reoffending.

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

65. We accept that whilst access to professional counselling services is more difficult in the remote community where the applicant lives, the support he has from his wife, his family, his pastor and church congregation as well as his employer would minimise any risk of reoffending. We accept that the applicant’s work with children is valuable to his community.

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

66. Having heard from the applicant at hearing before the Tribunal, the Children’s Guardian no longer opposes the application but instead holds a neutral position on the application.

Conclusion on section 30(1) matters

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

68. Whilst the applicant had a conviction for assault and two breaches of Apprehended Violence Orders between 2003 and 2010, he had no further convictions until 2017 when he was convicted of common assault on his wife. Whilst we accept that the assault involved physical aggression by the applicant, we are satisfied that the applicant has taken steps to ensure this will not re-occur. He has sought assistance through counselling and through the support of his pastor and church congregation. He has retained the support of his employer and has engaged in marriage counselling strategies with his wife who has provided evidence of her support for him and confirmation that there has been no further aggression by the applicant towards her.

69. Noting that our jurisdiction is protective and not punitive in nature, we accept the evidence of Dr Nielssen that, despite his earlier convictions, the applicant does not pose a risk to the safety of children.

70. 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)

71. 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

72. 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.

73. 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, his conduct since then and any expert assessment made for him.

74. 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 he is engaged in child-related work. In this regard, the reasonable person would note the circumstances surrounding the offending behaviour in 2017 and would accept that the applicant now has insight into his behaviour and the circumstances that led to it. The reasonable person would give weight to the findings of Dr Nielssen that the applicant does not present a real and appreciable risk to children. The reasonable person would also appreciate that the applicant’s employer, a non-for-profit organisation assisting women and children who are victims of domestic violence, assessed the applicant as being a suitable employee of the organisation with knowledge of the applicant’s criminal history.

Public interest

75. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [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.”

76. On the evidence before us, we are not satisfied that the applicant poses a risk to children. Having regard to material before us, and giving particular regard to the benefit of the applicant’s work with his local community in both paid and voluntary capacity, we are satisfied that it is in the public interest to make the orders sought.

Decision

77. 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.

78. The decision of the Children’s Guardian dated 12 December 2017 to cancel the applicant’s 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 12 December 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

Decision last updated: 18 July 2018