DWG v Children's Guardian

[2020] NSWCATAD 49

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DWG v Children’s Guardian [2020] NSWCATAD 49
Hearing dates:	11 November 2019
Date of orders:	12 January 2020
Decision date:	12 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member M Bolt, General Member
Decision:	(1)   The decision of the respondent, made on 28 November 2016, to refuse the applicant’s application for a working with children check clearance, is set aside. (2)   In substitution a decision is made to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – review of decision to refuse application for a working with children check clearance following a risk assessment – assessment trigger offences of common assault and assault causing grievous bodily harm in 1999, 2003 and 2010 – factors to be considered in the conduct of a risk assessment – whether a real and appreciable risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DWG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent)   Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00159688
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.Note: A reference to 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

Introduction

1. The applicant, DWG, seeks administrative review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance (WWC clearance, or clearance): see Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), ss 18(2) and 27.

2. The applicant is 36 years of age and has three children, a son and two daughters. His son is now 20 years of age and his daughters are now 17 and 10 years of age.

3. The applicant applied for a clearance on 24 August 2015. At around this time the applicant was also taking steps to seek orders that he be granted sole parental responsibility for his children. In November 2015, he was granted sole parental responsibility of his eldest child, a son, who was born in 1999. In September 2016, the applicant was granted sole parental responsibility for his eldest daughter, who was born in 2002, and early last year he was granted sole parental custody of his youngest daughter, who was born in 2009.

4. On 28 January 2016, the Children’s Guardian refused the applicant’s application for a clearance, because she was satisfied, after having conducted a risk assessment, under ss 14 and 15 of the WWC Act, that the applicant posed a risk to the safety of children: WWC Act, s 18(2). On being so satisfied, the Children’s Guardian was required to refuse the applicant’s application for a clearance.

5. The applicant did not lodge this application for review, until 3 years later, on 22 May 2019. This was well outside the 28 days prescribed, in s 27(2) of the WWC Act. However, the applicant sought an extension of time to lodge the application. On 1 August 2019 the Tribunal made an order extending the time within which the applicant was to lodge his application to 22 May 2019.

6. Having had time extended within which to lodge this application, there is no dispute that the applicant has a right to seek external review, by the Tribunal: see WWC Act, s 27 and the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9. Nor is it disputed that the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it and the applicable law: ADR Act, s 63(1). In this regard, the Tribunal sits in the shoes of the Children’s Guardian and considers the matter a fresh as at the time of the hearing: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

7. DWG contends that, given the significant changes he has made to his life, he does not pose a real and appreciable risk to the safety of children. Hence, the correct and preferable decision is for the Tribunal to make an order setting aside the decision of the Children’s Guardian and in substitution thereof make a decision to grant him a working with children check clearance.

8. The Children’s Guardian accepts that the applicant has made significant changes to his life and that the Court, in making the orders it made in regard to each of his children was satisfied, at the time the order was made, that it was in the best interest of the relevant child to grant sole parental responsibility to the applicant of that child. However, overall, the Children’s Guardian remains concerned about whether the applicant has had a sufficient period of time to demonstrate that the changes he has made are lasting ones. Hence, the Children’s Guardian neither consents to, nor is opposed to, an order being granted and has left it to the Tribunal to decide.

9. For the reasons set out below, on the material before us and the applicable law, we are not satisfied, as at the date of the hearing, that the applicant poses a real and appreciable risk to the safety of children. Hence we have made the orders sought by the applicant.

Material before the Tribunal

10. In support of his application, the applicant relied on the following material:

1. a bundle of documents he filed and served on 29 July 2019. Included in the bundle was:

1. an undated hand written statement he made for the purpose of this application;

2. the 2015 Children’s Court Order relating to the applicant’s son;

3. the 2016 Children’s Court Order relating to the applicant’s eldest daughter;

4. the 2018 Family Law Act Order relating to the applicant’s youngest daughter;

5. report of the applicant’s psychiatrist, Dr P, dated 28 September 2016,

6. reports of the applicant’s treating clinical psychologist, Mr CP dated 13 and 24 October 2016 and 23 July 2019;

7. reports of the applicant’s general practitioner, Dr GP, dated 3 July and 21 September 2019;

8. a number of references and letters of support from people within the applicant’s community; and

2. a further report of MR CP dated 3 September 2019.

11. The Children’s Guardian relied on three bundles of documents. The first bundle (708 pages) contained the section 58 documents. Included in that bundle was:

1. a copy of the material the applicant had provided to the Children’s Guardian for the purpose of her risk assessment; and

2. a copy of the information the Children’s Guardian had obtained in the course of her enquiries, which included information obtained from the NSW Police Force and the NSW Department of Family and Community Services (FACS).

12. The remaining bundles (598 pages) contained copies of further information obtained by the Children’s Guardian from the relevant NSW Local Court, NSW Corrective Services and NSW Family and Community Services.

13. Counsel for the Children’s Guardian also filed and served detailed written submissions.

14. At the hearing of his application, the applicant gave oral evidence and was cross-examined by counsel for the Children’s Guardian, Ms M Giacomo.

The WWC legislative scheme

15. The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have a working with children check clearance: see WWC Act, ss 3, 8 and 9.

16. The paramount consideration in the operation of the Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse’: WWC Act, s 4. Hence, the jurisdiction of the Tribunal in reviewing a decision of the respondent made under that Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61].

17. The word ‘child’ is defined in s 5(1) of the WWC Act to mean a person under the age of 18 years.

18. The term ‘child abuse’ is not defined in the WWC Act. However, it has been accepted that it should be given its ordinary meaning, including assault, assault causing physical harm, sexual abuse and emotional, or psychological harm.

19. Child-related work is broadly defined in ss 6 and 7 of the WWC Act and it includes working as an unpaid volunteer in chid-related work.

20. Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. For the purpose of this application, the relevant provision is as follows:

18 (2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

21. If granted, a WWC clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

22. A clearance cannot be granted on conditions.

23. In August 2015, the word ‘risk’, nor the term ‘risk to the safety of children’, were defined in the WWC Act. However, the Tribunal had accepted that, in the context of the WWC Act, the word ‘risk’ should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:

What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.

24. In 2018, the following definition of the term ‘risk to the safety of children’ was inserted into the WWC Act (see Child Protection (Working with Children) Amendment (Statutory Review) Act 2018, Sch 1, cl [2]):

5B   Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

25. Section 14 of the WWC Act provides that a person is subject to a risk assessment (i.e. ‘assessment requirement’) under that Act if any of the assessment requirement triggers specified in Schedule 1 apply to that person. In this case, there were a number of assessment requirement triggers that applied to the applicant, because, in 1999, 2003, 2010 and 2012 he was convicted of offences that involved violence (i.e. trigger offences/incidents): WWC Act, Sch 1, cl 1(4) and cl 1(6).

26. Section 15(4) of the WWC Act sets out the matters the respondent may consider in undertaking a risk assessment. These matters are similar to those contained in s 30 of the WWC Act, which are the same factors that the Tribunal must have regard to in determining an application under Part 4 of the Act (i.e. reviews (s 27 of the WWC Act) and appeals (s 28 of the WWC Act)). In this case, the applicant’s application is an application for review under s 27 of the WWC Act.

27. As this is an application for review, there is no presumption that the applicant poses a risk to the safety of children. However, s 27(4) of the WWC Act requires an applicant to fully disclose to the Tribunal any matters relevant to his or her application.

28. Section 30 of the WWC Act currently provides as follows:

30   Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part:

(a)   the seriousness of the … matters that caused a refusal of a clearance or imposition of an interim bar,

(b)   the period of time since those … matters occurred and the conduct of the person since they occurred,

(c)   the age of the person at the time the … matters occurred,

(d)   the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e)   the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

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

(g)   the person’s present age,

(h)   the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i)   the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition,

(i1)   any order of a court or tribunal that is in force in relation to the person,

(j)   any information given by the applicant in, or in relation to, the application,

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

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

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

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

29. Section 15 of the WWC Act is in similar terms.

30. In August 2015, when the applicant made this application for review, s 30 was in the following terms:

30   Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part:

(a)   the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

(c)   the age of the person at the time the offences or matters occurred,

(d)   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,

(e)   the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

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

(g)   the person’s present age,

(h)   the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

(j)   any information given by the applicant in, or in relation to, the application,

(k)   any other matters that the Children’s Guardian considers necessary.

31. Section 15 of the WWC Act was in similar terms in August 2015. That is, as at 24 August 2015, ss 15 and 30 did not include the matters set out s 30(1)(i1), (1)(j1), or s 30(1A).

32. Sections 30(1)(i1), (1)(j1) are of no application to this application so we have not considered them any further.

33. Sections 15(1A) and 30(1A) were inserted into the WWC Act, on 28 September 2015, with the assent of the Child Protection Legislation Amendment Act 2015 (the 2015 Amending Act): see the 2015 Amending Act, Sch 2, cl [31]. However, this amendment did not commence until on 2 November 2015.

34. Although, the provisions of the 2015 Amending Act came into operation prior to the Children’s Guardian having determined the applicant’s application, cl [46] of Sch 2 in the Amending Act inserted a new cl 16 into Part 4 of Sch 3 of the WWC Act which provided that ss 15 and 30, as amended by the Amending Act, did not apply to an application that was made before that amendment to those sections. As the applicant’s application for a clearance was made before these amendments came into force, by reason of this transitional provision, ss 15(1A) and 30(1A) of the WWC Act do not apply to his applicant.

35. We have nevertheless, for completeness, considered these matters briefly below in the context of whether we are satisfied the applicant poses a risk to the safety of children.

The trigger offences/incidents

May 2000

36. The earliest trigger events were the May 2000 convictions of the applicant in the Children’s Court of NSW. The offending occurred in the latter months of 1999. The applicant was 16 years of age at the time and the victim of his offending was his then partner Ms A, who was 17 years of age. Living with the applicant and Ms A was their son (child 1), who was nine months of age.

37. The applicant was convicted of the following offences:

1. one count of assault occasioning actual bodily harm; and

2. a further six counts of common assault.

38. The applicant is recorded in the Police Fact Sheet to have made full and frank admission of the allegations made against him by Ms A. He was sentenced to a six-month control order under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW).

39. In regard to the offending, the Police Fact Sheet noted that the applicant and Ms A had met at a youth refuge and had an on and off relationship for about 20 months when, after being separated for several months, Ms A and their son returned to live with the applicant in late October 1999. It was shortly after this that the first offence occurred following an argument they had about the applicant’s drug use. The applicant told Ms A to leave. As she was packing her things the applicant grabbed her by the throat and pinned her up against the window and asked her if she was leaving ‘now’. After she had said ‘no’ several times the applicant let go of her throat.

40. The next offence occurred 10 days later in early November 1999. The applicant and Ms A had made arrangements to move closer to Ms A’s mother who lived in country NSW. They were due to catch a train the next day. During the evening before they were due to depart, Ms A complained and told the applicant that he should be helping her pack rather than being out with his friends. It was alleged that the applicant snapped and pushed her across the table, grabbed the back of her neck and pinned her to the ground before she was able to break free.

41. The next offence occurred three days later, in the caravan where he and Ms A were living after they moved closer to Ms A’s mother. That evening, while Ms A was cooking the evening meal, the applicant picked up their son who was tired and crying. He had picked him up to comfort him and in doing so he moved the child’s hand. Ms A accused the applicant of hitting the child, which he denied and became very angry. Ms A alleged that, after she had put the child on the bed, the applicant came up behind her and put his right arm around her neck in a choke hold and that she could hardly breathe. He eventually let go.

42. Four days after the incident in the caravan, the applicant appeared at the Local Court in regard to a breach of an Apprehended Domestic Violence Order (ADVO) that had been taken out by his mother. After attending Court, he and Ms A attended a meeting, concerning their son, at the local offices of FACS. It was following this attendance that the applicant committed three further offences of assault.

38. The applicant was upset with Ms A, as she had not said much during their meeting at FACS. He grabbed her bag and threw it across the road. He also head-butted her on her forehead, with his forehead, which shocked her, as he had never done this before. As Ms A walked off the applicant continued to follow her and verbally abuse her. She continued to walk through the local shopping mall when the applicant became very angry and walked in front of her and head-butted her again, hitting her on her left cheekbone. Subsequently, on the way home to their caravan, the applicant tried to apologise.

39. Later that evening, Ms A became very upset following a telephone call from her grandmother. Ms A lay down on the bed crying. The applicant came up to her and made a physical move as if he was going to hit her – she cringed and let out a squeal. The applicant then tried to jump on top of her but she pushed him off. The applicant then grabbed her from behind in a ‘sought of head lock, around her throat, chocking her, at the same time he punched her to the right side of her face’ causing her a large amount of pain. Ms A was very scared. The applicant pushed her face down onto the floor. He put a pillow over the back of her head and sat on her for about 20 to 30 seconds. He eventually let her go and she lay on her bed with her pillow close to her and started to cry. The applicant verbally threatened her, but she eventual got an ice pack for her bruised and swollen eye and went to sleep.

40. Two days later, following a further verbal argument, the applicant charged at Ms A, hitting her right shoulder with his head and causing her to be rammed into a brick wall. When they returned to their home in the caravan park the applicant took hold of a knife and held it to Ms A’s throat and said: ‘You have hurt me enough, I am going to kill myself, because I do not want to hurt you anymore’. At the request of Ms A, the applicant put the knife down and spoke to his mother. Shortly thereafter the applicant left the caravan and went to his mother’s home.

41. That afternoon, Ms A attended the local Police Station and made a statement. An interim AVO was also applied for by police and granted. The same evening the applicant attended the local Police Station with his mother and was interviewed and charged.

July 2003

47. In July 2003, the applicant was convicted of an offence of assault occasioning actual harm for which the Court made a conditional release order, under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), for the applicant to be subject to two years supervision by the NSW Probation Services. The applicant was also convicted and fined for having an item (goods) in his custody that was suspected of being stolen. It was Ms B who drew this item to the attention of police when they attended their home.

48. The applicant’s offending occurred in mid February 2003. The Police COPS entry records the applicant’s then partner, Ms B, had called the local police station that day and made a complaint. The applicant had been in a relationship with Ms B for about 18 months and they had a daughter (the applicant’s eldest daughter). On the day in question (i.e. February 2003), Ms B told police that the applicant had been yelling at her that day saying; ‘If you leave me I’m going to ring up the Rebels and get them to shoot you. I will bring in my hit men from Canberra and Queanbeyan’. He had gone to the neighbours’ home for a short while, but when he returned and Ms B told him she was leaving, the applicant followed her and hit her. He did so while holding their daughter and a picture frame. On being hit the glass broke in the picture frame causing minor cuts to Ms B’s arm. Ms B alleged she had also been hit on the leg and lower back. When police arrived at their home they arrested the applicant and took him to the local police station where he was charged. He is recorded as having been hostile toward police and continuing to yell threats at Ms B.

November 2010

49. In November 2010 the applicant was convicted of one count of assault occasioning actual bodily harm. He was sentenced to a community corrections order, under s 8 of the Crimes (Sentencing Procedure) Act, to undertake 82 hours of community services.

50. The offending conduct occurred in early September 2010. The victim of the applicant’s offending conduct was Ms C, who had been his partner for about two years. Ms C is the birth mother of the applicant’s youngest daughter.

51. It would appear that police were informed of the alleged offending through the local office of FACS.

52. In regard to the offending conduct, it was alleged by Ms C, that on the day in question, when she was getting out of the car, she had accidently spilt a slushy the applicant had bought at McDonalds. Ms C alleged that the applicant immediately started yelling and screaming at her. He continued to yell and scream at her as she went into the house – when the applicant came inside Ms C said she asked the applicant to leave. After yelling at each other for about two minutes, the applicant went up to Ms C and punched her on the right side of her cheek causing it to bruise and swell. She said it caused her pain. She said the applicant then chased her into the kitchen and pushed her causing her to fall against the kitchen bench. This caused her pain and the right hand side of her shoulder blade became bruised and swollen.

53. Ms C is recorded as having told police that she did not report this incident, as she was scared the applicant would again assault her or their child. She asserted that the applicant had made threats of this kind previously.

August 2012

54. In August 2012, the applicant was convicted of four charges: possess a prohibited drug, common assault and two counts of contravening an Apprehended Domestic Violence Order (ADVO). He was sentenced to a bond under s 9 of the Crimes (Sentencing Procedure) Act to strictly comply with a post merit treatment plan (i.e. Magistrates Early Referral Into Treatment program) for 18 months.

55. The offences of possessing a prohibited drug, common assault and one count of contravening an ADVO occurred in early April 2012. The second count of contravening an ADVO occurred in late April 2012. In late November 2011, an ADVO was made against the applicant for the protection of his partner Ms C. That order was for a period of approximately 10 months. It was this ADVO which the applicant contravened in April 2012. We understand Ms C was also the victim of the common assault charge. Otherwise there is no further information in regard to these offences.

Section 30 matters

56. As we have noted above, by reason of the transitional provisions in the 2015 Amending Act, s 30(1A) of the WWC Act does not apply in this case.

(a) the seriousness of the offences with respect to which the person is a disqualified person, or any the matters that caused a refusal of a clearance

57. At the hearing of this application, the applicant accepted that he had been violent towards his partners, Ms A, Ms B and Ms C. He also accepted that his conduct was serious and that children should not be exposed to domestic violence.

58. We note, his 1999 offending included a disqualifying offence as his then partner was under the age of 18: WWC Act, Sch 2, cl 1(1)(c). However, he is not a disqualified person because he was also a child at that time.

59. While not given as an excuse for his behaviour, the applicant explained that he had been homeless and without support since he was very young and it was during this time that he began to drink alcohol and take drugs, mainly marijuana. He also partnered with young women he met who were also drug and alcohol users. He accepted what was contained in the Police fact sheets and was glad he put his hand up because going into ‘detention’ had provided him with the opportunities to change his life. We have dealt with this in more detail below.

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

60. The applicant’s first trigger event occurred 20 years ago. The last trigger event, in 2012, occurred eight years ago.

61. As pointed out by the Children’s Guardian, since 2001, a number of additional AVDO’s have been made against the applicant. There is also evidence of the applicant having contravened those orders. Additionally, the applicant was convicted of possessing a prohibited drug, there is evidence of FACS being concerned about the applicant having unsupervised access to his children because of his past violent behaviour and two recent incidents where the applicant’s behaviour was reported to police.

ADVOs

62. ADVOs taken out against the applicant included ADVOs for the protection of:

1. the applicant’s mother and one or more of his siblings (i.e. May 2001, November 2002, January 2004, August 2004);

2. Ms B and his eldest daughter and a child of Ms B (i.e. July 2003); and

3. Ms C (i.e. November 2011, May 2013 (which included the applicant’s youngest daughter) and July 2013).

63. In March, May and September 2004, the applicant was convicted of having contravened the ADVO made for the protection of his mother. The May 2004 contravention was also a breach of the ADVO made for the protection of Ms B. The March and May 2004 contraventions occurred when the applicant attended the home of his mother and became involved in an argument with her and his siblings. In May 2004, Ms B was also at the home of his mother.

64. The September 2004 contravention occurred when the applicant attended a football match where his mother and his sibling were in attendance and the applicant refused to return a photograph that had been paid for by his mother.

65. On each occasion, the applicant was sentenced to a good behaviour bond.

66. As noted above, in late April 2012, the applicant contravened the ADVO for the protection of Ms C. That contravention was as a result of the applicant having entered Ms C’s home and confronting another person who was inside Ms C’s home. He then approached Ms C at the train station and abused her verbally. At the time, Ms C had their daughter with her. The applicant then caught the same bus as Ms C and he continued to abuse her verbally.

67. Again, the applicant did not deny these contraventions in that he behaved in an angry manner.

68. In March 2004, at the direction of his Probation and Parole Officer, the applicant attended an anger management program. It was his evidence that this program had assisted him in gaining an understanding about his relationship with his mother, in that it was she who had failed to protect him when he was so very young.

Possession of drugs

69. In March 2011, and again in April 2012, the applicant was found to be in the possession of a prohibited drug, marijuana. Shortly thereafter, the applicant was convicted and fined $250 for the March possession. As noted above, in regard to the April 2012 drug possession charge, the applicant was convicted of this offence in August 2012. He was sentenced to an 18 month good behaviour bond during which he was comply with the post Merit treatment plan.

70. At the hearing, the applicant explained that his offending in 2011 and 2012 was due to Ms C having requested that he obtain drugs for her. He said she would threaten to not let him see his youngest daughter if he did not do so.

Child protection issues

71. In summary the evidence of child protection issues are as follows:

1. Child 1 (son) - in 1999, the applicant’s son first came to the attention of FACS. We note that the applicant was also a ward of the State when he was young. Hence, the applicant was known to FACS at that time. Nevertheless, it was the applicant’s violent behaviour towards Ms A (the 1999 trigger events) that drew the attention of FACS.

In early 2000, the applicant’s son was placed into the care of his mother and the applicant was not to have any unsupervised contact with him. The applicant’s son was then placed into foster care in June/July 2000. Final care orders were made in May 2003, placing the applicant’s son into the care of the Minister until 18 years of age. In August 2013, the applicant contacted FACS to say he wanted to work towards having unsupervised contact with his son and for him to then be placed into his care. In June 2014, when his son was 14 years of age, he placed himself into the care of the applicant. A year later, in September 2015, FACS applied to have the care order in regard to the applicant’s son rescinded and that the applicant be given sole parental responsibility for him. That application was made on the basis that:

1. the applicant’s son had self-placed with the applicant and the placement was stable;

2. the applicant’s son had a marked improvement in attendance at school and engagement with his education;

3. the applicant had demonstrated appropriate care and love for his son.

Two months later, the Children’s Court made orders providing sole parental responsibility to the applicant for his son. While a report was made that in the same month the applicant’s son was found intoxicated in a park – the applicant had noted that his son was not actually living with him at that time.

The applicant’s son is now an adult and living independently.

In these proceedings, the applicant said that he always wanted to have his son live with him. He explained that he knew his son had been placed into out-of-home care. However, he maintained contact with his son whenever he could. This was not easy as he had to travel by public transport from the country town where he lived to the coastal town where his son was living. He said that he had at no time encouraged his son to come and live with him and that he had proudly looked after him and was able to get him off drugs. He said he still has a very good relationship with his son.

2. Child 2 (eldest daughter) – in September 2010, the applicant’s eldest daughter was taken into care. Prior to this FACS received a number of notifications about the applicant’s aggression towards his mother and his then partner, Ms B. In early 2007, Ms B told police that their daughter was living with the applicant and while she was concerned about the manner he had treated her son from a previous relationship she said he did not ill-treat his daughter.

On 11 February 2016, the applicant applied to have the care orders in regard to his eldest daughter rescinded and an order that he be granted sole parental responsibility for her. His application was not opposed by FACS, because:

1. his daughter had expressed a consistent wish to live with the applicant;

2. his daughter had self-placed with the applicant in early December 2015;

3. his daughter was doing well at school and the applicant was meeting her needs;

4. the applicant had provided negative urinalysis; and

5. the applicant was obtaining treatment for his mental health through medication and seeing a psychologist.

As we have note above, in 2016, the Children’s Court allocated sole parental responsibility to the applicant for his eldest daughter.

In his evidence in these proceedings, the applicant said his eldest daughter ‘is such a fantastic child’ and that she made things a lot easier for him through the hard times. The applicant said he still has a very close relationship with his eldest daughter.   

3. Child 3 (youngest daughter) – child 3 came to the attention of FACS when she was present and witnessed family violence. In 2015 final orders were made by consent, which provided that the applicant and Ms C were to have equal shared parental responsibility for child 3 and that they were to share the care of her equally. These orders were discharged in 2018, when the applicant was given sole parental responsibility for her and that she was to live with him.

The evidence is that child 3 has flourished since living with the applicant. It is the applicant’s evidence that he has cared for her numerous times since she was born. She is also the reason why he has pressed this application for review so that he can fully participate in her schooling and her sporting activities in which she is doing so well.

72. In his evidence in these proceedings the applicant said:

… [It] was a very tough road getting custody full time of all three children but something I always wanted and very proud of. In this time I also learnt many lessons about myself and also learnt many lessons that made me a stronger person and parent towards my children …

73. As we have noted in the introduction, the Children’s Guardian acknowledges that in each case, the Court in making the sole parental orders in respect of each child was required to be satisfied that it was in the best interest of the child to make that order in favour of the applicant.

Recent incidents

74. In the material provided to the Children’s Guardian by the police there are three incident reports of a neighbourhood dispute involving the applicant. The reports were made in December 2017, December 2018 and April 2019. The reports are of complaints made to police by neighbours of the applicant in which the neighbour asserted that the applicant had either banged on their adjoining fence and/or was verbally aggressive and abusive. On each report, it is noted that the police had attended and both parties were spoken to and no further police action was taken ‘due to conflicting accounts’. We note that the most recent event occurred when the applicant and his children were saying good-bye to a friend who had parked in the shared driveway near his home. The neighbour asserted that as she began to move her car that was also parked in the shared space, the applicant became verbally aggressive towards her. The applicant is recorded as having said he was concerned for the safety of his daughters.

75. In regard to the earlier incident reports, at the hearing of these proceedings, the applicant explained that he has an elderly neighbour who does not like him watering his pot plants that are at the front of the house. The same neighbour also has a number of dogs who bark all night which prevents him from sleeping. He said that this neighbour now leaves him alone.

(c) the age of the person at the time the offences or matters occurred

76. As we have noted, the applicant was 16 years of age at the time of the 1999 trigger offences. He was 28 years of age in 2012 when he was convicted of assaulting Ms C.

(d) 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

77. Ms A was 17 years of age at the time of the 1999 trigger offences. As we have already noted, she was a child for the purposes of the WWC Act. Also present was the applicant’s son who was only 9 months of age and especially vulnerable.

78. Ms B and Ms C were both adults at the time of the subsequent trigger events.

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

79. The applicant was of a similar age to that of Ms A and the evidence is that Ms B and Ms C were also of a similar age to the applicant. Each of these women were partners of the applicant and the mothers of his children.

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

80. The applicant knew that Ms A was 17 years of age. However, he did not necessarily think of her as being a child as she was older than him and she was also his partner. The applicant now understands that the age of 17 is a child for the purpose of the WWC Act.

(g) the person’s present age

81. The applicant is presently 36 years of age.

(h) the seriousness of the person’s total criminal history and the conduct of the person since the offences occurred

82. As we have noted above, the applicant has a lengthy criminal history of violence towards his previous partners that spans over 12 years, from the age of 16 to 28. However, there were 4, 7 and 2 years between the trigger events.

83. The applicant also has an extensive ADVO history, primarily arising from his offending and what appears to have been a very difficult relationship with his mother.

82. Other than a driving offence in mid-2014, there is no evidence of any further convictions for violence or illegal drug possession since 2012. That is, in the last eight years there is no evidence of any physical violence or illegal drug possession offending by the applicant.

83. Instead, the evidence is that the applicant has taken steps to address his mental health and well being by taking his medication and seeking counselling. He no longer takes any illegal drugs and does not consume alcohol and has worked towards providing a safe and secure home for himself and his children. We have already set out above the steps the applicant has taken to obtain sole parental responsibility for his three children. He has done so with the support of FACS, because of the significant changes he has made to his life. We have dealt with these changes in more detail below.

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

86. In this application, the real issue is whether there is any likelihood of the applicant again behaving violently as he has previously. The return to such behaviour the applicant readily acknowledged would impact on children should they be present and witness such behaviour. As we have already noted, it is the applicant’s evidence that he has turned his life around because, he has ‘been really lucky over many years’ to have a number of ‘great supports’ to get him to where he is now. These supports include his general practitioner, his psychiatrist, his clinical psychologist, his local support groups.

87. In her letter of support of the applicant, Dr GP explained that the applicant had been a patient of her local practice since 2008 and in those 11 years she had seen ‘momentous changes’ in the applicant’s life. She said the applicant had a very traumatic childhood during which he developed a Borderline Personality Disorder. She said that with the help of his psychologist, Mr CP, and his psychiatrist, the applicant has obtained an insight into the trauma of his childhood and completely turned his life around. She said the applicant is:

…[a] caring, polite, cooperative and responsible person, with a particular passion about good child-rearing. … He is determined children be given the best support and encouragement to fulfil their potential.

[The applicant] is a 35 year old man who has overcome the vicissitudes of his traumatic childhood to be a caring father and person. His experience allows him to instinctively know how to steer himself and others away from addictions and destructive temptations.

88. In a letter of support, dated September 2016, the applicant’s psychiatrist, said that he had been the applicant’s treating psychiatrist since 2010. He said that the applicant had been abstinent from any recreational drugs or alcohol for ‘around three years’ and this has been helped by the medication he was prescribed and taking for his Attention Deficit Hyperactivity Disorder. Dr P concluded by saying:

… [I] see a lot of people with problems similar to [the applicants], but rarely do I see someone who has done as well as he has, and is continuing to do well.

89. The applicant explained that Dr P retired, but he continues to take his medication and now sees a new psychiatrist as needed or as recommended by his general practitioner. He also began seeing psychologist, Mr CP, following the retirement of Dr P.

90. Mr CP also provided a number of letters of support for the applicant. In his most recent letter, Mr CP explained that he had been seeing the applicant since 2015. He said the applicant is aware of how his own childhood could possibly impact on his parenting capacity and that he had worked hard on: ‘his own self-awareness, affect regulation, and empathy building to better anticipate the needs of his children, through consistent counselling and attending parenting programs …’. Mr CP also noted that the applicant has kept his family situation open to scrutiny through his ongoing dealings with an elderly mentor and staff at the local shelter who had helped him with accommodation, and by attending regular counselling. He said he did not believe the applicant was currently experiencing any major mental health disorder or that he possesses any risk to children. Dr GP and Dr P were of a similar view.

91. In his evidence the applicant said he was committed to ongoing counselling. His commitment was evidenced in that he had arranged a consultation with Mr CP on the day after the hearing because he knew the hearing of his application would be very stressful for him.

(j) any information given by the applicant in, or in relation to, the application

92. In addition to the letters of support from Dr GP, Dr P and Mr CP, the applicant provided letters of support from long time mentor, Ms M, members of his local support group, a former neighbour and the Manager of the local youth support group. The authors of the letters all speak positively of the applicant. In her letter of support, Ms M said she has known the applicant since he was 15 years of age when he attended the school for homeless youth where she was the manager and a teacher. She retired from the school in 2014 but has continued to work with the applicant and some of her other ex-students. She said: ‘I believe this young man should be commended for his determination to turn his own life around. In doing so, he has created a safe environment in which his children can have a future. …’.

93. We note that an employee of the applicant’s local youth support group attended the hearing with the applicant in order to provide him with support.

94. In his evidence the applicant also explained that:

1. he reiterated that his illicit drug taking was monitored for 18 months following his August 2012 conviction. It was also monitored during the time he was seeking parental responsibility for his children. These had shown he was drug free. He also attended AA for 12 months in order to address his alcohol use, which he found to be very helpful;

2. he had undertaken TAFE studies in community services in 2010 and 2012 and hopes to complete those studies soon;

3. he has had some casual employment in the past but his focus has primarily been on providing a secure and safe home for his children. As his youngest daughter is now ten years of age and he would consider before school care this year so that he can obtain more permanent employment;

4. he now has a home and enjoys living where he lives. He is able to exercise and enjoy activities with his children all of which is helpful in regulating any stress; and

5. he has not had any serious relationship since Ms C as his children have been his priority.

(k) any other matters that the Children’s Guardian considers necessary

95. At the conclusion of the hearing, Ms Giacomo, counsel for the Children’s Guardian agreed that there were many factors in favour of the applicant. She noted that the applicant had been candid and truthful in giving his evidence in these proceedings. She also noted that the applicant had difficult time from a very young age. He was homeless and left to fend for himself from a very young age. His lifestyle was chaotic during his time of homelessness. She said the applicant should be congratulated for the major changes he had made to his life and that his motivation to do so rang true.

96. In this regard, Ms Giacomo noted the drug relapse strategies of the applicant of medication and counselling and the fact that the applicant has a good relationship with Dr GP and Mr CP.

97. However, Ms Giacomo went on to submit that the applicant’s trigger offending was serious and it occurred over a long period of time. There was also the applicant’s long history of drug and alcohol use.

98. While it was acknowledged that the applicant accepted he had been violent towards his partners and on two occasions this occurred when his very young children were also present, Ms Giacomo, submitted that there remains a question as to whether the applicant has the ability to regulate his emotions at stressful times given the more recent incident reports of December 2017 and November 2018. It was on this basis that the position of the Children’s Guardian had not changed in that she neither consents to, nor opposes the orders sought by the applicant.

Can we be satisfied that the applicant poses a real and appreciable risk to the safety of children?

99. As we have noted, the paramount consideration in this application is the safety, welfare and well being of children and, in particular protection them from abuse.

100. We accept that the applicant’s trigger offences were serious. We also accept that the applicant understands that his past offending and aggressive behaviour was unacceptable and placed his very young children at risk. There is, however, no evidence of the applicant having intentionally caused harm to a child, including his own children.

101. We accept that the applicant has been genuine and open in his commitment to change his chaotic life of homelessness, drugs and alcohol. That chaotic life commenced when he was very young, a child. The applicant accepts that with the support of others he has been able to change this around to a situation where his life has become stable and, with the support of FACS, he has regained sole parental responsibility of his three children since 2015. That is, the evidence is that the applicant has been stable for more than five years. At the same time, the applicant has continued to value the supports that he has in place and they remain so today.

102. With the assistance of his supports, the applicant has been taking medication and attending counselling regularly for his diagnosed mental health. We are satisfied that the applicant understands that he needs to continue taking his medication and to seek counselling when needed. We are also satisfied that the applicant has addressed his illegal drug use and alcohol abuse. In this regard, the evidence is that his last illegal drug possession charge was eight years ago and there is no evidence of any alcohol abuse for many years.

103. In our view, little (if any) weight should be given to the 2017 and 2018 Police Incident Reports. In our opinion, these reports were no more than that of a disgruntled neighbour and not indicative of the applicant being unable to control his emotions. This is reflected in the content of the Reports where police have recorded that there were conflicting accounts given by the parties and no action was taken.

104. Accordingly, given the significant changes the applicant has made since his trigger offending, in our view, the risk of him reoffending in a way that would, or could pose a real and appreciable risk to the safety of children is low. That is, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children.

Section 30(1A) factors

105. While not applicable to this application, for completeness, and based on the reasons set out above, we would have been satisfied that:

1. a reasonable person, knowing about the trigger assessment requirements, the circumstances surrounding those offences, the conduct of the applicant since that offending, the changes he has made to his life and the evidence he agave at the hearing, would allow his or her child to have direct contact with the applicant that was not directly supervised while the applicant was engaged in child related work:

2. it is in the public interest to make the order. In this regard we note the applicant is still a young man who wishes to fully participate in the school and sporting life of his daughter and also seek employment in an area to help young people out of situations he had found himself in.

Conclusion

106. For the reasons set out above, we are not satisfied, as at the date of hearing, that the applicant poses a real and appreciable risk to the safety of children. Hence, under the terms of s 18(2) of the WWC Act the correct and preferable decision is to grant the applicant a working with children check clearance.

107. Accordingly, we make the following orders:

1. The decision of the respondent, made on 28 November 2016, to refuse the applicant’s application for a working with children check clearance, is set aside.

2. In substitution a decision is made 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

10 March 2020 - Publication Restriction amended.

Paragraph [10](1)(b)-(g) amended.

Paragraph [10](2) amended.

Paragraph [48] amended.

Paragraph [71](1)-(3) amended.

Paragraph [86]-[93] amended.

Paragraph [94](4) amended.

Paragraph [96] amended.

Paragraph [107](1) amended.

Order 1 on coversheet amended.

Decision last updated: 10 March 2020