DOM v Children's Guardian

[2019] NSWCATAD 24

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DOM v Children’s Guardian [2019] NSWCATAD 24
Hearing dates:	14 January 2019
Date of orders:	06 February 2019
Decision date:	06 February 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member S Davison, General Member
Decision:	(1) DOM 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 under section 43 of the Crimes Act 1900 (NSW); and (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) Crimes Act 1900 (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:	DOM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: R Dart (Respondent)   Solicitors: DOM (Self Represented)(Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00267724
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. The Applicant “DOM” seeks an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) declaring that she is not to be treated as a disqualified person under the Act.

2. DOM applied for a working with children check clearance (WWCC) clearance in order to be a kinship carer of her fiancé’s stepson. The Respondent refused to provide a WWCC on the basis that DOM is deemed to be a disqualified person under the Act because in August 2012 she was charged with Abandon/Expose Child under 7, contrary to section 43 of the Crimes Act 1900 (NSW). DOM pleaded guilty to this charge and in November 2012, she was sentenced to a good behaviour bond for 12 months.

3. The Respondent supports DOM’s application. The Tribunal must 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. As a disqualified person under the Act, DOM is presumed to pose a risk to the safety of children. The Act requires DOM to establish on the balance of probabilities that she does not pose an unacceptable risk to the safety of children in order to be eligible for a WWCC clearance.

5. For the reasons set out below, the Tribunal finds that DOM should not be treated as a disqualified person and the Respondent is ordered to grant DOM a WWCC clearance.

The material before the Tribunal

6. The Tribunal was provided with the following material:

1. Application received on 31 August 2018 (A1)

2. Documents filed by DOM received 7 November 2018 (A2)

3. Further documents filed by DOM received 13 December 2018 (A3)

4. Applicant’s outline of submissions filed on 14 January 2019 (A4)

5. Section 58 documents filed by the Respondent received on 3 October 2018 (R1)

6. Further documents filed by the Respondent received on 29 November 2018 (R2)

7. Respondent’s outline of submissions received 20 December 2018 (R3)

The disqualifying offence

7. In August 2012, DOM was charged with Abandon/Expose Child under 7 pursuant to section 43 of the Crimes Act 1900 (NSW). This was because DOM left her son (W), who was 4 years of age at the time, at home alone. Neighbours observed W at a window and heard him calling out for his mother. The Police were called and they contacted DOM, who was at a local leagues club. She returned home and it was reported that she provided misleading information to the Police about how long she had been away and where she had been. It was noted that she was not under the influence of drugs or alcohol. CCTV footage was obtained from the leagues club, which had placed her there for a longer period of time than she initially reported to the Police.

8. DOM pleaded guilty and was sentenced to a 12 month good behaviour bond, which she completed without incident. A risk of harm report was made to the Department of Family and Community Services. DOM is reported to have worked cooperatively with her caseworker and the file was closed with no further action taken.

9. DOM and her fiancé have undergone a guardianship assessment in relation to their application to provide kinship care to the stepson of her fiancé. This assessment recommended that he be placed with them and did not identify any significant risk to the child from DOM.

The determination of the Tribunal

10. DOM was present at the hearing and gave evidence to the Tribunal. She showed remorse about what had occurred and accepted full responsibility for her actions. DOM told the Tribunal she was 23 years old at the time of the offence and immature. She was in an abusive relationship with a man who was also married to another woman at the time. She explained she was “petrified” of him and had been subject to both emotional and physical abuse from him. The Tribunal was satisfied that this was the case.

11. DOM said that on the evening in question, this man called her and asked her to pick him up, presumably to take him to the leagues club. W was asleep and she decided that he would be safer at home than with her and this man, who had shown no interest or care in relation to her son. DOM clearly now accepts this was not the right thing to do and that it placed her son at grave risk. The Tribunal was persuaded that DOM’s remorse was genuine and that she does now understand and accept the risk she placed her son in by leaving him at home alone.

12. DOM told the Tribunal that her life is very different now. She has a good job, which she finds satisfying and to which she is committed. She has been in a stable relationship since 2015 with a man who cares for her son and they plan to get married this year. She now has much more family support from both her own, and her partner’s, family. She is also committed to being a coach for her son’s soccer team and has received strong praise from officials about the way in which she approaches this. The Tribunal was persuaded that DOM has made significant improvements to her life, and is able to now access help when she needs it.

Factors to be considered under the Act

13. The Tribunal must consider the factors set out in Section 30 (1) and (1A) of the Act in determining whether DOM 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)

14. The disqualifying offence is serious and it potentially placed W at grave risk.

15. DOM told the Tribunal that there were some details contained in the Police Fact Sheet that she did not agree with. She did not raise it at the time the matter was dealt with in Court. These details did not have any material impact on DOM’s responsibility for her conduct or her appreciation of the risk she placed her son in.

16. DOM was placed on a good behaviour bond and, with the support of FACS, she was allowed to remain caring for W. This arrangement was effective in ensuring that the incident did not happen again. DOM developed better coping strategies and was able to make significant improvements to her life. There were no further incidents reported of this kind.

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

17. The disqualifying offence occurred in 2012. DOM has not been charged with any further offence since that time.

18. DOM has cooperated with FACS and she was released early from supervision by the Probation and Parole Service because she was assessed to be low risk and had community supports in place.

19. FACs have not identified any further concerns or issues in relation to her capacity to care for W.

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)

20. DOM was 23 years of age at the time of the disqualifying offence. W, her son, was 4 years old.

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

21. DOM knew W was a young child and vulnerable.

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

22. DOM has not been charged with any further criminal offence and the disqualifying offence is the only matter contained in her criminal record.

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

23. DOM has not provided any expert opinion in relation to the likelihood of the disqualifying offence recurring. If it were to recur, it would place a child at grave risk.

24. The evidence before the Tribunal is, however, that DOM has made significant improvements in her life. She is genuinely remorseful about the disqualifying offence and accepts full responsibility for it. She understands the risk she placed her son in and the Tribunal is persuaded that she would not again put her son, or any child, at risk in the same way.

25. The assessments made by Probation and Parole and FACS indicate that there is a low risk of the offence repeating and no concern about DOM’s capacity to be protective towards her son or any other children.

26. The Tribunal is satisfied that likelihood of repetition of the offence is very low.

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

27. DOM’s evidence explains her situation at the time and how her life has changed for the better since then, and that she understands the risk she placed her son in. The Tribunal accepts this evidence.

28. DOM provided a reference from the manager of the soccer team she coaches, which speaks glowingly of her and her efforts with the under 8 team. DOM has also provided assessments from FACS which do not identify any concerns or risk in relation to her care of children.

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

29. The Respondent makes no further submissions and is supportive of DOM’s application.

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

30. 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 DOM when not directly supervised by another person.

31. The Respondent submits that a reasonable person acquainted with the disqualifying office and DOM’s circumstances at the time and subsequently, would allow DOM direct and unsupervised contact of their child. The Tribunal is satisfied that DOM demonstrates appropriate protective behaviours towards her son and other children and in all the circumstances agrees that the Reasonable Person test is satisfied.

32. The Respondent submits it would be in the public interest for DOM to be granted a WWCC Clearance and to be an authorised carer for the stepson of her fiancé. On the basis of the material presented, the Tribunal agrees that the Public Interest Test in this case is satisfied.

Conclusion

33. The Tribunal’s jurisdiction is protective and not punitive (AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69). In considering whether DOM 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). DOM has persuaded the Tribunal that she does not pose a real and appreciable risk to the safety of children.

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

35. The Tribunal orders that:

1. DOM 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 under section 43 of the Crimes Act 1900 (NSW); and

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

Amendments

06 February 2019 - Paragraph 34 typographical error corrected. "DHL" changed to "DOM".

Decision last updated: 06 February 2019