DHL v Children's Guardian

[2018] NSWCATAD 238

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHL v Children’s Guardian [2018] NSWCATAD 238
Hearing dates:	29 June 2018, 27 August 2018
Date of orders:	12 October 2018
Decision date:	12 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member R Royer, General Member
Decision:	(1) The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of assault with an act of indecency. (2)   The Children’s Guardian is to grant the applicant a Working with Children Check clearance
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v V [2002] NSWSC 949).
Category:	Principal judgment
Parties:	DHL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent) Meehan Solicitors (Applicant)
File Number(s):	2018/00020259
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. DHL applied for a working with children check clearance (WWCC) clearance on 16 November 2017 in order to obtain qualifications to umpire softball games played by young people. The Respondent refused to grant a WWCC because DHL was convicted of an assault with an act of indecency (the disqualifying offence) in 2010 and pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (the Act), is presumed to pose a risk to the safety of children.

2. Pursuant to s 28 of the Act, DHL seeks an enabling order declaring that he not to be treated as a disqualified person under the Act. The Respondent opposes this application. The Act requires DHL to establish on the balance of probabilities that he does not pose an unacceptable risk to the safety of children in order for him to be eligible for a WWCC clearance.

3. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it: section 63 Administrative Decisions Review Act 1997. The paramount consideration is the safety, welfare and wellbeing of children and, in particular protecting them from child abuse: s 4, the Act.

4. For the reasons set out below, the Tribunal finds that DHL should not be treated as a disqualified person and orders the Respondent to grant DHL a WWCC clearance.

The material before the Tribunal

5. The Tribunal was provided with the following material:

1. Application received on 18 January 2018 (A1)

2. Documents filed by DHL received 16 March 2018 (A2)

3. Applicant’s outline of submissions received on 24 August 2018 (A3)

4. Addendum Report prepared by Mr Michael Kirton, Clinical Psychologist dated 8 August 2018 (A4)

5. Statement of DHL received 24 August 2018 (A5)

6. Section 58 documents filed by the Respondent received on 22 February 2018 (R1)

7. Further documents filed by the Respondent received on 12 April 2018 (R2)

8. Further documents filed by the Respondent received on 7 May 2018 (R 3)

9. Further documents filed by the Respondent received on 8 June 2018 (R4)

10. Respondent’s outline of submissions received 26 June 2018 (R5)

11. Documents Filed by the Respondent – Updated Section 31 Response form NSW Police received on 5 July 2018 (R6)

12. Letter from the Crown’s Solicitor’s Office to Meehans Solicitors received on 27 August 2018 (R7)

The Evidence

6. DHL is 40 years of age. He is of Aboriginal heritage and was adopted at an early age by English and Australian heritage parents. He describes his upbringing as “happy” but acknowledges that he was a “problematic child”, which resulted in him “regularly” getting in trouble with the police. DHL attributes many of his issues and interactions with the Police stem from his use of alcohol, which began from an early age. DHL began working as a truck driver about 10 years ago and drove long haul heavy vehicles with very few holidays or days off. He now works as a forklift driver because his licence has been cancelled due to drink driving offences, which are referred to below.

7. The circumstances surrounding the disqualifying offence were that DHL and the victim were neighbours. At about 8 pm the night before the disqualifying offence took place, the victim had a technician install a phone line in her garage, which required the use of a drill. The following morning (about 9 am), the victim was reversing out of her driveway and DHL approached her. He asked her about the noise from the night before and she apologised. About 3:30 pm that afternoon, DHL knocked on the victim’s door and asked her to clean up the rubbish outside her premises. The victim said “Is this about last night? We are neighbours. Don’t hold grudges”. DHL said “You know you are really sexy” and reached out and grabbed the victim’s right buttock cheek. The victim moved away and said “what are you doing?” DHL replied “I’ve been watching you for weeks, I know you want it” and reached out again but the victim pulled away, closed and locked the door. The victim told Police that DHL was well affected by alcohol, unsteady on his feet, had bloodshot eyes and smelt of alcohol and sweat.

8. DHL pleaded guilty and was placed on an 18 month good behaviour bond. An AVO was made in favour of the victim.

9. DHL said in his statement that “without reservation acknowledge my wrongdoing”. He said it was related to his “abuse of alcohol”. Under cross examination he said he and the victim were living in a “close unit complex” where neighbours regularly had contact with each other on a social basis. He recalls that he “smacked” her buttocks (rather than “grabbed”), but did not recall saying that he had been watching her for weeks. He said he had been a little flirtatious with her but it did not go beyond that. He acknowledged he had been drinking and was asleep on the lounge when the Police came to talk to him. He said he “most probably” behaved in the way that was described because he was drunk at the time. There were no children present at the time the offence occurred. DHL’s solicitor submitted that he pleaded guilty at the first available opportunity and this was not in dispute. He was ordered by the Court to attend counselling in relation to use of alcohol, which he did, and also attended Alcoholics Anonymous for 6 to 8 weeks.

10. DHL’s statement attaches a copy of his criminal record, which is lengthy and spans over many years. He explained that his use of alcohol has played a major part in his involvement with the criminal justice system. The Respondent asked DHL about several of these events. They involved damage to property and larceny. Others relate to driving while intoxicated (including high range levels of alcohol). None of these offences resulted in a custodial sentence. DHL conceded nevertheless that he could have put others in danger, such as other drivers and pedestrians and expressed remorse in relation to them.

11. There are events identified in the Police data base that refer to DHL, but where no charges were laid against him, and he disputed his involvement in these matters.

12. DHL did not dispute events cited in the Police data base that involved “J”, with whom DHL has had a relationship with for about 14 years. They have one child together, a boy (“M”), who is now aged 8 years. An incident occurred in August 2017 where DHL came home intoxicated and in the course of trying to take his television (because they were living separately at the time), he unintentionally bumped into J. The Police were called, but no charges were laid against him. J said to the Police she did not fear for her safety and had not been assaulted. M did not see what happened but he heard it. Police observed M to be “fine and healthy”. The Police took DHL to a friend’s house and that was the end of the matter.

13. Another incident occurred in May 2018. DHL came home after he had been drinking on his way home from work. He said he was not that intoxicated but J wanted the Police to remove him. The Police attended and established no offences had occurred and considered they did not have the power to remove DHL from his home (as he was living there at the time). The Police report states that DHL “appeared slightly affected by alcohol and appeared to be calm”. DHL acknowledged he said some hurtful things to “J”. The Police checked on “M” and the report notes he “appeared unaffected by the incident”. The Police did not consider it necessary to apply for any protection orders.

14. DHL told the Tribunal he regretted these incidents and explained he had been under stress and finding it difficult to cope with his emotions. This is consistent with reports provided by Mr Kirton, a clinical psychologist, who was working with him to deal with these issues.

15. The Tribunal was provided with psychological reports from Mr Kirton, dated 6 February, 2018 and an addendum report dated 8 August, 2018. The Tribunal was also provided Mr Kirton’s report dated 15 November 2017, which was provided for Court proceedings following a drink driving offence in October 2017.

16. Mr Kirton gave evidence by phone at the Hearing. He referred to a significant incident, which occurred in 2014 involving a motor vehicle fatality, which caused DHL to develop symptoms of Post-Traumatic Stress Disorder (PTSD). DHL was driving a truck on a motorway and stopped at a set of lights. A speeding car attempted to pass him and hit the side of his truck, propelling the vehicle into the opposite lane where it ran into a large truck. The driver in the car died in front of him.

17. Also in the following year, DHL was badly assaulted and knocked unconscious requiring hospitalisation with bleeding on the brain, memory loss and confusion. He was unable to work for two months. Mr Kirton said DHL began to drink more heavily on weekends to “have peace of mind from the thoughts and the confusion”.

18. In October 2017, DHL drove a car whilst intoxicated and crashed after driving on the wrong side of the road. The Police attended and he admitted to driving the car. He told them “I have nothing left, my wife left me and I have nowhere to live”. DHL told the Tribunal this event occurred just after they had sold their house because they were separating again and he was very upset. He pleaded guilty and was fined $1,500 and a mandatory interlock order was made for a minimum of 9 months and a maximum period of 24 months.

19. In November 2017, following psychometric testing and interview, Mr Kirton assessed DHL’s mental health status as having PTSD. He said there was a relationship between his PTSD and his use of alcohol. DHL agreed to a treatment plan which included focussed counselling and going to Alcoholics Anonymous.

20. Mr Kirton agreed with the Respondent that when DHL is intoxicated, his conduct is less inhibited. But Mr Kirton said DHL has strong inhibitions around children. He formed this view from DHL talking about his interest in coaching sport and his personal beliefs about children and their needs. He said DHL expressed “lots of remorse” about his drinking and driving, which was consistent with DHL’s evidence to the Tribunal.

21. Mr Kirton said DHL managed his PTSD symptoms through the use of alcohol. He said the PTSD has re-consolidated and is now not an issue for DHL. They worked on resolving this during their individual sessions and he gave DHL strategies to manage stress and issues in his emotional life. DHL said these strategies have been helpful.

22. In his report dated February 2018, Mr Kirton notes DHL had been attending counselling since November 2017 and has “improved his mental health considerably”. He notes DHL is no longer having intrusive memories or flashbacks, his PTSD symptoms have resolved and his relationship with J is functioning well. In relation to the question of whether DHL poses a risk to the safety of children, Mr Kirton said DHL presents “no issues in his past life and life at present which would in any way be established as risk factors for abuse of children”. He notes that there are no issues in DHL’s history relating to childhood abuse and that the disqualifying offence did not involve children. He noted DHL was now not using alcohol and is more positive about himself and his future. He notes on the STATIC-99 (Assessment tool for Possible Sexual Reconviction) he registers in the low range, which is the lowest possible category.

23. In his report of 8 August 2018, although he last saw DHL in late February 2018, he was asked in light of the additional documents provided to him, whether he still maintains the view that DHL does not pose a risk to the safety of children. These additional documents relate to allegations that were made against DHL that were of a sexual nature, which DHL denies and no charges were laid against him. He said the “additional reference to both actual and alleged instances in his past do not alter my earlier assertion that he is not a risk to children or adolescents”.

24. Mr Kirton suggested to DHL that he maintain a connection with AA to provide him with support from time to time when he needs it. He told the Tribunal that DHL showed a commitment to his son and J, and to his involvement with softball, all of which were beneficial to him. He said that keeping busy with family and sporting commitments provided the same support as AA in terms of helping DHL to maintain sobriety. Mr Kirton provided strong support for DHL continuing his connection with the sport of softball. The Respondent noted that Mr Kirton had seen DHL in a limited capacity and his report should be considered carefully. The Respondent accepted that Mr Kirton’s evidence in relation to the role sport plays in supporting DHL. The Tribunal found Mr Kirton’s evidence to be logical, well considered and persuasive.

25. DHL told the Tribunal that he is aware that he goes beyond the safe level of drinking alcohol “because some of the issues I had”. He said it was his “way to escape”. He also said his involvement with sport motivates him not to drink. DHL said he had not been attending AA because he had been busy with his son and with softball. He supports a number of the club’s activities and plays competitively on the weekend. His involvement with softball has also been a very significant positive experience for him and his son, providing an opportunity for them to bond and do something that is very meaningful for them both. He spoke about the strategies Mr Kirton gave him to deal with intrusive thoughts and stressors and how they have helped him. He is currently living with J and his son and things are going well for the three of them. He said J has been supporting him to keep on track.

26. Mr Kirton described DHL as an “open person”. This is consistent with how the Tribunal found DHL’s evidence, which was forthcoming and candid. The Respondent also accepted DHL’s evidence as candid and credible and that he was trying to assist the Tribunal. The Respondent accepted DHL made appropriate concessions when he could not recollect events and was open about his difficulties especially in relation to his use of alcohol.

27. The evidence presents a picture of a man who has struggled with his psychological well-being from an early age, who relied heavily on alcohol to manage his symptoms, and when he was intoxicated, his behaviours led to contact with the criminal justice system. He readily admitted to these offences and attended counselling and other treatment when he was ordered to do so. As he has grown older and with the benefit of involvement with a psychologist and through his sporting activities, he has been able to manage his symptoms and control his use of alcohol. He expresses genuine remorse for his actions and accepts responsibility for his actions, and appears to be committed to reforming his life and contribute to the well-being of his family and community.

Factors to be considered under the Act

28. The Tribunal must consider the factors set out in Section 30 (1) and (1A) of the Act in determining whether DHE currently poses a risk to the safety of children.

The seriousness of the offences with respect to which the person is disqualified or any matters that caused an assessment and a refusal of a clearance: s30 (1)(a)

29. There is no dispute that the disqualifying offence (assault with an act of indecency) was at the lower end of the scale of seriousness of such offences. The victim was an adult and the contact was brief and did not involve direct touching of skin. It did however occur on the doorstep of the victim’s home and she did not consent to DHL having physical contact with her.

The period of time since this offence and the conduct of the person since it occurred: s30(1)b)

30. The disqualifying offence occurred in 2010. There have been no further offences of a similar nature but there have been traffic and other alcohol related incidents. DHL has never been ordered to serve a custodial sentence. There are no convictions or orders against DHL that directly relate to children.

31. DHL has a lengthy criminal record, which ranges across property offences, minor violence offences, offensive language and drink driving. DHL pleaded guilty to all of these offences. DHL’s criminal records indicate a long history of alcohol related offending, which DHL readily concedes.

32. DHL denied any involvement to other alleged offending, for which no charges were laid against him. The Tribunal cannot make positive findings in light of the untested evidence in relation to these allegations. In having regard to these allegations it is noteworthy that DHL co-operated with Police investigations and unlike the other events to which he readily accepted responsibility and pleaded guilty, he strongly denied any wrongdoing on his part.

33. DHL readily conceded to the two domestic related incidents on the Police data base. No charges were laid against him in relation to these events and the reports both make reference to his use of alcohol. In relation to the first incident, DHL accepts intoxication was an aggravating factor and should not have gone to his home to collect his belongings in an intoxicated state. No act of violence was perpetrated upon anyone and the Police did not consider his son to be at risk. The second incident in May 2018, the Police report notes that DHL was slightly affected by alcohol but considered no offence had been committed and his son to not be at any risk of harm.

34. DHL accepted the assistance of Mr Kirton and has made significant strides in improving his mental health and his family life. He has also maintained employment and contributions to his sporting club.

The age of the person at the time of the disqualifying offences; the age of the victim; the difference in age and the relationship between the victim and the person: s 30 (1) (c), (d) and (e)

35. DHL was 32 years of age at the time of the disqualifying offence. The victim was 25 years old. They were neighbours.

Whether the person knew that the victim was a child and the person’s present age: s30 (1)(f)

36. The victim was not a child. DHL is now 40 years old.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred: s 30 (1)(h)

37. The Respondent submits that DHL’s criminal history is serious in that it spans 20 years and includes anti-social conduct when DHL was intoxicated. The Respondent submits that DHL’s alcohol related offending has been chronic. DHL agrees he has a lengthy criminal history and his use of alcohol is problematic. Mr Kirton said DHL was using alcohol to manage his symptoms of PTSD, which are now resolved. He said overall there has been improvement in the way in which DHL deals with stressors without resorting to alcohol.

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

38. The Respondent refers to DHL’s chronic pattern of alcohol-related offending and that if it continued, it is possible that he may injure or kill someone on the road. The Respondent agrees however that the possibility of such a tragic circumstance occurring could unfortunately eventuate whether or not DHL is granted a WWCC clearance.

39. It is undisputed that DHL’s offending was alcohol related and that it pre dates developing PTSD. The chances of him offending if he returns to his previous problematic level of drinking are likely. However Mr Kirton said DHL’s symptoms of PTSD have resolved, and those symptoms were causing DHL to drink alcohol in order to alleviate them. Mr Kirton said DHL is managing other stressors without the use of alcohol. The strategies DHL uses to manage anxiety and stress are reported to be working well.

40. On balance the Tribunal is persuaded that the likelihood of re-offending is low. Further, none of DHL’s prior offences involved children. The Tribunal also accepts Mr Kirton’s evidence in relation to DHL’s protective attitude towards children, which was also consistent with DHL’s evidence to the Tribunal. This also reduces the likelihood of offending against children.

41. DHL readily accepted full responsibility for offences to which he pleaded guilty, and to the domestic incidents involving J, and did not seek to minimise them or mitigate his responsibility for them. He readily accepted the danger and risk to others (such as in the case of his drink driving), and that his behaviour could have led to people fearing their safety, which also weighs in DHL’s favour.

Any information given in, or in relation to, the Application: s30(1)(j)

42. DHL provided certificates of completing course in complaint handling, child protection, harassment and discrimination, and ethics and ethical decision making in sport.

43. DHL provided a reference from “CM” who has known him for the past 7 years through his sporting club. She notes the reference will be used in support of his application for a WWCC clearance and speaks very highly of him and his interaction with children although it does not refer to the disqualifying offence. There are also two similar references provided to the Tribunal by DHL. These references support the overall impression of DHL as someone who has invested a great deal in his sporting life and to supporting others to play softball.

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

44. The Respondent makes no further submissions.

Reasonable Person and Public Interest Tests: s30(1A)

45. The “reasonable person test” is a safeguard that applies where the Tribunal is considering a finding that an applicant for a WWCC clearance does not pose a risk to the safety of children. The Tribunal must be satisfied that a reasonable person would allow his or her child to have direct contact with DHL when not directly supervised by another person.

46. The Respondent refers to DHL’s pattern of conduct and ongoing problem with alcohol. In written submissions the Respondent suggested a reasonable person acquainted with DHL’s history would not permit him to have access to their children unsupervised. At the Hearing the Respondent accepted DHL’s commitment to change and to rehabilitate himself, and suggested the Tribunal could balance this against his history of alcohol use and criminal behaviours. The Respondent agreed DHL’s efforts to change his life was commendable. The Tribunal is persuaded that DHL has made substantial efforts to rehabilitate himself and this has resulted in significant gains in his family and personal life.

47. The Tribunal is also persuaded by evidence of DHL’s protective approach to children. And although DHL’s references do not refer to his history of offending or use of alcohol, they do speak highly of his commitment to the children he has coached and supported through the sporting club. The Tribunal is satisfied that a reasonable person would permit DHL to have unsupervised access to their children.

48. The Tribunal must also find that it is in the public interest to make an order enabling DHL to obtain a WWCC clearance and work with children. DHL requires a WWCC clearance to obtain qualifications to umpire softball games played by young people, which would further his contribution to this sporting activity and the club to which he and his son belong. DHL’s contributions to the sport of softball and the local community and club is regarded to be in the public interest.

49. DHL’s evidence of wanting to contribute to supporting the activities of his community and club involved in this sport, as well as supporting his son’s involvement in this sport, is persuasive. The Tribunal accepts it provides DHL with a sense of meaning and belonging and at the same time contributes to his local community, which is in the public interest.

Conclusion

50. The Tribunal’s jurisdiction is protective and not punitive (AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69). In considering whether DHL is a risk to children, the test to be applied is whether the risk is “real and appreciable” (Commissioner for Children and Young People v V [2002] NSWSC 949). DHL has persuaded the Tribunal that he does not pose a real and appreciable risk to the safety of children.

51. The correct decision is to grant DHL an enabling order and to order the Respondent to grant DHL a WWCC clearance.

52. The Tribunal orders that:

1. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of assault with an act of indecency.

2. The Children’s Guardian is to grant the applicant 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: 12 October 2018