DKD v Children's Guardian

[2019] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DKD v Children’s Guardian [2019] NSWCATAD 33
Hearing dates:	6 August 2018, 27 November 2018
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member A Limbury, General Member
Decision:	(1) The Tribunal declares that 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 his conviction in 2006 for the offence of aggravated indecent assault contrary to s61M of the Crimes Act 1900. (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order – working with children check clearance – disqualified person – disqualifying offence was aggravated indecent assault – s61M of the Crimes Act 1900 – mental health considerations - whether applicant discharged onus to rebut the statutory presumption that he poses a risk to the safety of children – whether a reasonable person would allow his or her children to have direct contact with the applicant - whether it is in the public interest to make the order – order made.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (NSW)
Cases Cited:	Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DKD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogarty (Applicant) A Douglas-Baker (Respondent)   Solicitors: Legal Aid Commission of NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00071390
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 is seeking an order to enable him to work with children. He requires such an order to allow him to continue living with his sister who is the out of home carer for their eight-year-old niece. As a result of his conviction for aggravated indecent assault in 2006, the applicant is a disqualified person. This means that the Children’s Guardian does not have the power to grant a working with children check clearance. Instead, this Tribunal has the power to make an ‘enabling order’ declaring that the applicant should not be treated as a disqualified person. If made, the order will have the effect of granting the applicant a working with children check clearance to work in child-related work.

2. For the reasons that follow, we have decided that the applicant should be granted an enabling order.

Issues

3. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children. In any application before this tribunal where an enabling order is sought, there is a presumption that the applicant poses a risk to the safety of children. The applicant bears the onus of persuading the tribunal that he or she does not pose a risk to the safety of children.

4. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

• whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

• whether it is in the public interest to grant the applicant a working with children check clearance.

5. A reference to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children. (s5B of the Child Protection (Working with Children) Act 2012).

Does the applicant pose a real and appreciable risk to the safety of children?

6. To engage in child-related work, a person must hold a working with children check clearance. The Office of the Children’s Guardian has the power to grant such a clearance unless, as is the case in this application, the applicant is, by virtue of his or her criminal history, a disqualified person.

7. To determine whether the applicant poses a real and appreciable risk to the safety of children, we have considered the evidence before us in relation to the disqualifying offence of aggravated indecent assault. We have also considered the relevance of the applicant’s history of mental illness and the results of psychological and psychiatric assessments conducted for him, in addition to evidence of his support networks.

Disqualifying offence

8. In 2006, when he was 21 years old, the applicant pleaded guilty to one count of aggravated indecent assault for which he was sentenced to six months’ imprisonment, which was suspended on the applicant entering into a six-month bond. The victim was an 18-year-old woman and the circumstances of aggravation were that the applicant was in company with the male co-offender. According to the facts sheet contained on the court file, whilst the three were in a parked car together, the co-offender climbed into the back of the car to join the victim, took her mobile phone and began to scroll through it, abusing her as he did so. The applicant took the victim’s arm then joined her and the co-offender in the back of the car. The applicant then touched the victim’s bottom and touched and poked her vagina. The co-offender grabbed the victim’s breasts, as did the applicant. The applicant and co-offender then both asked to have sex with the victim which she refused before exiting the car and running away, dropping her handbag in the process. The co-offender picked up the handbag and he and the applicant then drove away.

9. It is not clear from the material before us whether these facts were agreed on sentence. On the basis of the material before us, however, we accept that the applicant pleaded guilty to one count of aggravated indecent assault which involved touching the victim’s breast and touching but not penetrating the victim’s vagina. We accept that the offence occurred when the applicant was in the company of another man and that this was the circumstance of aggravation in relation to the indecent assault.

Mental health issues

10. In 2004, the applicant had been diagnosed with adjustment disorder, depression and antisocial outburst.

11. In 2013, the applicant was admitted to hospital and placed in the mental health unit where he was diagnosed with schizophrenia, paranoid subtype, complicated by methamphetamine use. Although he needed to be scheduled after initially allowing himself to be admitted, contemporaneous medical reports by the psychiatrist, Dr Sakker, confirm that during his stay in the mental health unit he had neither been violent nor suicidal.

12. In 2014, the applicant presented to hospital complaining of disturbed sleep, panic attacks and palpitations, having stopped taking medication for his psychosis and having reported past long-term marijuana use and methamphetamine and cocaine use. The psychiatrist, Dr Sakker, recommended that he continue to take the anti-psychotic drug, Paliperidone, for ‘the rest of his life.’

13. The applicant is in receipt of a disability support pension, and has been engaged with a service providing support for persons with mental health concerns. He is receiving treatment for schizophrenia and anxiety.

14. We accept the evidence before us that although the applicant previously used cannabis on a regular basis and used other illicit substances, including crystal methamphetamine for a one-week period prior to his 2013 hospital admission, he has not engaged in any illicit substance use, including cannabis, since 2013.

15. On the evidence before us, we also accept that the applicant takes his daily medication, namely an anti-psychotic medication to treat his schizophrenia in addition to an anti-depressant, and that he understands that he will need to continue this medication on an ongoing basis. We accept the applicant’s oral evidence that he understands the benefits of his medication and is aware that it helps him.

Medical, social and psychological reports for the applicant

16. Before us are a series of medical and psychological reports, including a risk assessment for the applicant.

Risk assessment

17. In her risk assessment for the applicant, Ms Pratley administered the following assessment tools: Static-99R, Risk for Sexual Violence Protocol (RSVP), the Structured Assessment of Protective Factors for violence risk (SAPROF). On the basis of her assessment, Ms Pratley stated that:

Consideration of DKD’s risk and protective factors, combined with the period of time he has been offence-free within the community suggests that he currently poses a low risk of sexual recidivism. There is no suggestion based on his past behaviour that he poses a specific risk to children, as his victims of his physically and sexually violent behaviour have been peer-aged. If DKD were to sexually or violently reoffend in future, this would most likely occur in the context of him being untreated for his mental illness, possibly alongside a return to substance use. He would be most likely to victimise a same-aged peer or acquaintance.

18. Ms Pratley made the following findings:

• In sum, although DKD was likely within an above average risk range at the time of sentencing for the sexual offence in 2006, it is likely that his risk of sexual offending at this point in time is minimal;

• Consideration of DKD’s risk and protective factors, combined with the period of time he has been offence-free within the community suggests that he currents poses a low risk of sexual recidivism;

• DKD is currently taking his medication as prescribed and is having regular contact with a psychiatrist. He has recently engaged with a case management service to improve his community links;

• DKD has not been detected for a sexual offence in 12 years and he has never been detected for a sexual offence against a child;

• DKD does not pose any greater risk of sexual or violent harm to the safely of children than the risk posed by any other adult.

19. Ms Pratley gave oral evidence before the Tribunal and confirmed the opinion set out in her report the applicant does not pose any greater risk of sexual or violent harm to the safety of children than the risk posed by any other adult. She agreed that it was important that the applicant remains compliant in taking his medication.

Psychiatric report

20. The applicant’s treating psychiatrist, Dr Bisht, confirmed that the applicant had an episode of depression and psychosis in 2010 which had required his hospitalisation, where he commenced medication for these conditions.

21. In an updated report dated 30 April 2018, Dr Bisht provided the following assessment of the applicant’s mental state:

On mental state examination the patient had an appearance that was in line with the age and sociocultural background and there was no evidence of any malnourishment. The motor activity was within normal parameters and engagement was to a good degree. The affect was anxious for most part of the interview, with some restriction in reactivity, and though content focusing on fears. The patient had partial insight and judgment though and denied any suicidal thoughts.

22. In oral evidence before the Tribunal on 6 August 2018, Dr Bisht confirmed the diagnosis of schizophrenia for the applicant, explaining that schizophrenia is a type of psychosis. He explained psychosis as being when a person harbours beliefs that are fixed and contrary to reality.

23. He told the Tribunal that whilst depression can be managed through a combination of counselling and medication, psychosis is generally treated by medication alone. He agreed that any stopping of the applicant’s anti-depressant medication should be gradual. It is his view that to prevent a recurrence of the psychosis, the applicant could take the anti-psychotic medication indefinitely.

24. On the evidence that since his initial presentation for psychosis in 2010, the applicant has had two further re-occurrences. Dr Bisht told the Tribunal that his opinion in relation to the chances of further re-occurrences remained the same regardless as to whether the applicant had one or two further presentations with psychosis subsequent to its initial presentation. He agreed that the applicant’s chances of a relapse would increase if he were to use illicit substances.

25. Dr Bisht told the Tribunal that he has clients who have had psychotic episodes who are working full-time and who have families. He agreed that the applicant has at least partial insight into his schizophrenia and that he attends his appointments with his sister with supports him. As a mandatory notifier, Dr Bisht confirmed that he has never made a notification about the applicant.

26. In updated reports in May, June, September and October 2018, Dr Bisht found no evidence of psychosis for the applicant and noted him to be compliant with medications.

Psychological report

27. The psychologist, Ms Gadea, provided an assessment for the applicant after a consultation that took place on 18 September 2018. She found that the applicant was not suffering from depression and recommended ongoing psychological care to assist with any anxiety symptoms and flashbacks.

General practitioner’s assessment

28. Dr Khan has been the applicant’s general practitioner since 2016. In a report dated 29 May 2018, Dr Khan wrote that:

From what I know of [DKD], I do not have any evidence that he is non-compliant with his medication. With regard to his mental stability, he has always been in sound mental state when I have seen him. With regard to illicit drugs, I have never been suspicious of him. Regarding [DKD’s] risk to child safety, I do not have any evidence or reason to be concerned based on my dealings with him.

FACS caseworker for the applicant’s niece

29. The following is contained in a statement by the FACS caseworker for the applicant’s niece who lives in out of home care with the applicant’s sister:

I am aware that [DKD] has lived with his sister and nephew since 2010. I can confirm that Family and Community Service (FACS) have not received any Risk of Significant reports for [the nephew].

[DKD] is not listed as a Person Causing Harm or a Person of Interest of the FACS records database. To the best of my knowledge, [DKD] does not have any records on the system.

While conducting the carer assessment of [DKD], I have chatted to him at length about his previous assault charges from approximately 12 years ago. From the responses that [DKD] gave in regards to his criminal history and my own observations of [DKD] in the home, I have not had any immediate concerns for safety for the children in the home.

Support networks

30. We accept the evidence before us in relation to the applicant’s support networks.

DKD’s sister

31. In her evidence, the applicant’s sister confirmed that she is the full-time foster carer for her niece for whom she will have full parental rights this year. She told the Tribunal about how helpful the applicant is in helping her to care for her son, their niece and the other children in their extended family. She told the Tribunal that if she had any concerns at all about him, she would never allow any of the children to be with him and would not be at the tribunal to support the applicant.

32. She agreed that the applicant had previously taken cannabis and other illicit drugs but told the tribunal that the applicant had not taken illicit drugs since 2013. She is confident in this view because the applicant had been living with her prior to the refusal of his working with children check clearance and she would have been able to tell if he had been drug affected.

33. It is her view that the applicant has paid for his mistakes and is now healthy and well. She agreed that he is compliant in the taking of his medication.

34. She confirmed that the applicant has often cared for her own son and his other nieces and nephews who, according to the applicant’s sister, idolise the applicant. Three of these children have intellectual disabilities and have a close relationship with the applicant.

35. She confirmed that their niece’s FACS caseworker has a good relationship with the applicant.

DKD

36. We accept the evidence by the applicant that he comes from a close family with whom he spends a lot of time. We also accept that he is compliant with his medication and will continue to follow medical advice in this regard and he happy to do so as he feels that the medication really helps him. We accept his evidence that he no longer takes illicit drugs. We also accept the genuineness of his remorse for his earlier offending behaviour.

37. We accept that he has a close relationship with his nieces and nephews and is protective of them. We accept that he is able to look after his nieces and nephews without assistance and to attend to their needs. We accept that he wishes to have a working with children check clearance to enable him to care for their niece when his sister needs assistance with her out of home caring responsibilities.

Real and appreciable risk

Section 30(1) matters

38. In determining this application and considering the question of risk, we must explicitly consider the 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 a risk assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

39. We accept the seriousness of the disqualifying offence, which took place in 2006, and also of the assault conviction in 2004. We accept that at the time, the applicant was regularly using illicit drugs.

40. In assessing these matters, we accept that the offences occurred 12 and 14 years ago at a time when the applicant was a young man. Since then, the applicant had matured and, having been diagnosed with schizophrenia in 2011, has been stable and compliant with his medication. We accept his oral evidence to the Tribunal that he is remorseful for his actions and for the harm caused to the victims.

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

41. It is 12 years since the disqualifying offence and 14 years since the applicant was convicted of assaulting his former girlfriend.

42. We accept that he continued to take illicit drugs after the 2006 offence but are satisfied on the evidence before us that he has not used illicit drugs since 2013.

43. We accept the evidence of his psychiatrist, Dr Bisht, that the applicant is compliant with his medication and is stable. We accept that he has sought vocational and community supports and enjoys the close support of his family, in particular his sister.

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

44. The applicant was 21 years of age at the time of the disqualifying offence and 18 years old when he assaulted his former girlfriend.

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))

45. The victim of the disqualifying offence was 18 years of age when she was indecently assaulted by the applicant. The applicant’s ex-girlfriend was 15 years old when she was assaulted by the applicant. She was vulnerable due to her age.

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

46. The applicant was three years older than each of the two victims. The victim of the assault was his former girlfriend while the victim of the indecent assault had been known to him for some weeks, having been introduced to him by the co-offender.

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

47. In relation to the 2004 offence, we accept that the applicant knew that the victim was under 18 years of age, but cannot be satisfied that he knew she was 15 years old, given that she had told him she was 17 years old.

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

48. The applicant is 33 years old.

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

49. In 2004, the then 19-year-old applicant pleaded guilty to common assault and assault occasioning actual bodily harm and entered into a bond and an apprehended violence order for the protection of the victim, who was the applicant’s fifteen-year-old ex-girlfriend. The victim sustained swelling to her right hand, a grazed elbow and lumps to her head from being punched by the applicant.

50. The disqualifying offence, considered above, occurred in 2006.

51. In 2005, the applicant was convicted of driving under the influence of cannabis and fined $1500 and disqualified from driving for nine months. In 2009, he was issued with a traffic infringement notice for driving whilst suspended. There have been no further traffic matters since 2009.

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

52. On the basis of the findings of Ms Pratley and Dr Bisht, we are satisfied that there is little likelihood of any repetition of the offending behaviour displayed by the applicant in 2004 and 2006. We accept the findings of Ms Pratley and Dr Bisht that the applicant has matured since 2006, has been compliant with his medication, has been stable in terms of his mental health, has sought medical and psychological help and has community and family support.

53. We accept the findings of Ms Pratley that the applicant poses a low risk to the safety of children.

Any order of a court or tribunal that is in force in relation to the person (s30(il)

54. There is no order of a court or tribunal in force in relation to the applicant.

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

55. We have considered all material put forward by the applicant.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1)(j1)

56. No relevant material obtained in accordance with section 36A of the Act has been drawn to our attention.

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

57. There are no other matters the Children’s Guardian considers necessary in this case.

Conclusion on section 30(1) matters

58. In finding that the applicant does not pose a real and appreciable risk to the safety of children, we accept that, on the evidence before us:

• Whilst the applicant has a history of illicit drug use, he ceased to use illicit drugs in 2013 and has continued to remain abstinent from drug use;

• The applicant is living independently and is managing his daily life accordingly

• He has external supports should he require assistance;

• He is committed to his medication regime as prescribed by his treating psychiatrist;

• He attends regular appointments with his psychiatrist and his general practitioner;

• He has a good relationship with his treating psychologist;

• Since his hospital admission in 2013, the applicant has matured and has gained insight into his past action and health needs;

• In the 5 months since the first Tribunal hearing, the applicant has continued to follow his medical regime and to live an independent life;

• According to the expert opinion of the psychologist, Ms Pratley, the applicant does not pose any greater risk of sexual or violent harm to the safely of children than the risk posed by any other adult.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant?

59. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 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

60. 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.

61. In order to properly consider this test, a “reasonable person” would need to know about the applicant’s criminal history, his mental health history in addition to the medical, social and psychological reports before the Tribunal as well as the evidence of the applicant’s family and community supports .

62. 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 that the applicant has a long and successful history of providing care to his nephews and nieces and is trusted by his siblings to provide this care. The reasonable person would have knowledge of the applicant’s previous convictions but would give weight to the fact that the applicant has not taken illicit drugs since 2013, is now stable in terms of his mental health and is committed to following the medical regime prescribed by his medical specialists. The reasonable person would consider the applicant’s diagnosis of schizophrenia and would also consider the applicant’s management of his condition and his prognosis, namely that with medication his condition continues to be well managed. The reasonable person would also give weight to the fact that the FACS caseworker for the applicant’s niece (who now lives with the applicant’s sister) trusts the applicant to spend time with the niece.

Public interest

63. 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.”

64. On the evidence before us, we are not satisfied that the applicant poses a risk to the safety of children. We accept that he is of assistance to his sister in the care of her son and their niece. We also accept that he has a close and productive relationship with his other nieces and nephews, which is beneficial both to the children and to the applicant. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant.

Conclusion

65. Having regard to all the above factors, the Tribunal finds that the applicant has proven that he does not pose a real and appreciable risk to children. On this basis, the applicant should not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2006 for the offence of aggravated indecent assault contrary to s61M of the Crimes Act 1900.

Orders

1. The Tribunal declares that 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 his conviction in 2006 for the offence of aggravated indecent assault contrary to s61M of the Crimes Act 1900.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, 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: 28 February 2019