Efn v Children's Guardian

[2021] NSWCATAD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFN v Children’s Guardian [2021] NSWCATAD 100

Hearing dates:

9 October 2020; 3 March 2021

Date of orders:

26 April 2021

Decision date:

26 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Grant, Senior Member
S Davison, General Member

Decision:

1.   The decision of the Children’s Guardian dated 5 December 2019 to refuse to grant the applicant a working with children check clearance is set aside.

2.   In substitution for that decision, the following decision is made; the applicant is granted a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant has a previous criminal history that involves offences of violence - assessments by forensic psychologist – appropriate treatment - assessment of evidence of applicant - whether applicant poses a risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibitive Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Cases Cited:

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BHA v Children’s Guardian [2014] NWCATAD 161

BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264

McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6

Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

R v Commission for Children and Young People [2002] NSWlRComm 101

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88

Smith v Commissioner Police 2014 NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267.

Category:

Principal judgment

Parties:

EFN (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Higgins (Respondent)

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00005207

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 including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 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

Overview

1. The applicant is a 44 year old man who seeks a Working with Children Check clearance (“clearance”) to enable him to continue to work as a First Aid Instructor conducting first aid courses to members of the public including young people.

2. On 5 December 2019, the Children’s Guardian, decided to refuse him a clearance on the basis that he poses a risk to children. This decision was based on a pattern of violent behaviour associated in most instances with the applicant’s misuse of alcohol and mental health issues. His behaviour had spanned a significant period and the Children’s Guardian was not persuaded that the applicant had properly addressed his underlying alcohol abuse and mental health issues.

3. The applicant seeks an administrative review of the decision of the respondent, the Children’s Guardian, to refuse him a clearance. The applicant accepts that he does have a history of violent and antisocial behaviour, although not to the extent suggested by the Children’s Guardian. He rejects the view that he is a risk to the safety of children. He asserts that none of his offending has involved children and he has never been the subject of any complaints regarding children during his paid or volunteer work. He has not misused substances for some time and is being treated for his mental health condition. He also relies on the expert view of two psychologists who have assessed him and who do not regard him as posing any higher risk to the safety of children than any other member of the community.

4. The issue for us to determine is whether, as at the date of hearing, we can be satisfied the applicant poses a real and appreciable risk to the safety of children if he were granted a clearance to work in child related-work.

5. After consideration of all the evidence, we have decided to set aside the decision of the Children’s Guardian and grant the applicant a clearance. The reasons are set out below.

6. Due to the sensitive nature of these proceedings we have made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the victims involved in the allegations between 1999 to 2018 are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘EFN’ has been used in these reasons for the applicant’s name.

Jurisdiction and role of Tribunal

7. There is no dispute that we have jurisdiction to review the decision of the Children’s Guardian that is the subject of this application. Our role in reviewing that decision is to determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon an application for review we may make orders that include an order to affirm the decision of the Children’s Guardian, or an order to set aside the decision of the Children’s Guardian and in substitution thereof make another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3).

Applicable Law and Legal Principles

8. The object of the Act is 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 working with children check clearances: s 3 of the Child Protection (Working with Children) Act 2012 (“the Act”).

9. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse: s 4 of the Act.

10. The Children’s Guardian will consider the matters set out in s 15(4) of the Act in making a risk assessment. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act.

11. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.

12. In this administrative review, neither party bears the onus of proof. There is no presumption that EFN poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.

13. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove”.

14. An application under s.27 of the Act is a merits review and not a review in which EFN must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

15. Our jurisdiction under s 27 of the Act is protective of children and not punitive of EFN: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101.

16. The issue for us as required by s 18(2) of the Act is whether EFN, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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”.

17. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

18. In determining this application, we must first have regard to the factors set out in s 30(1) of the Act. If we are considering making an order to grant EFN a clearance to work with children, we must then consider the two-part test set out in s 30(1A) of the Act.

Evidence

Documents

19. The applicant filed the following written material:

• Application for review – A1

• Statement of Applicant and annexures – A2

• First Aid Syllabus and folder – A3

• Submission – A4

20. The respondent filed the following written material:

• Section 58 documents filed 2 October 2020 – R1

• Further section 58 documents filed 6 August 2020 – R2

• Further section 58 documents files 23 July 2020 – R3

• Section 31 response filed 3 September 2020 – R4

• Submission – R5

21. On the 3 March 2021, the parties filed further material including the following medical reports filed by the applicant:

• Report of Dr Lennings, Clinical and Forensic Psychologist dated 2 November 2020

• Report of Dr Kwok, Clinical and Forensic Psychologist dated 17 November 2020

• Report of Ms Srishti Yadav, Clinical Psychologist dated 18 February 2020

The Hearing

22. EFN was self-represented and the respondent was represented by Counsel. The parties submitted a summary of legal argument and written submissions.

23. On the first day of the hearing, the Children’s Guardian initiated a discussion regarding the need for an adjournment given concerns about a lack of medical evidence and the manner in which EFN was presenting his case. The Tribunal decided that the matter should be adjourned for further hearing to enable EFN to obtain additional evidence.

24. During the hearing, EFN gave oral evidence and was cross-examined by the respondent’s Counsel. Dr Lennings and Dr Kwok gave oral evidence and were cross-examined by the respondent’s Counsel. No other witnesses were called by either party and final submissions were made by both parties.

EFN’s history of offending and allegations involving violence

25. The respondent refused EFN a clearance due to his pattern of behaviour involving violence and antisocial behaviour spanning a significant period of time. An absence of independent evidence regarding EFN’s progress, treatment and recovery added to the respondent’s concerns. In refusing EFN a clearance, the respondent relied on the following matters:

1999 incident

26. In 1999, EFN was charged with assault. EFN was alleged to have assaulted a 16 year old male by pulling him to the ground and punching and kicking him. EFN was 22 years old at the time and has stated the incident occurred following two youths assaulting a woman in a hotel. A court dismissed the charge after a hearing of the matter. EFN was a serving police officer but not on duty at the time.

2006 High Range PCA

27. On 14 May 2006, EFN was stopped whilst driving and was recorded to have a high range blood alcohol concentration. Due to a procedural error, the Court dismissed the matter.

2010 assault police, resist police and assault

28. On 28 July 2010, EFN was reported to have been involved in a physical altercation with his mother and brother. EFN was intoxicated at the time and assaulted his brother but neither he nor his brother wished to provide a statement to the police. When the police later attended, EFN was reported to have hit one of the officers at the back of the officer’s head. EFN was charged with common assault, assault police and resist arrest. The matter was dealt with under the Mental Health Act on the basis that EFN be placed on a Community Treatment Order.

2012 public order and assault

29. On 27 April 2012, EFN was reported to have had a physical altercation with a security guard on licensed premises. He was reported to have been intoxicated. Warrants were issued but later withdrawn and the matter did not proceed. EFN reported he was a resident in a residential rehabilitation program in Sydney at the time of this alleged incident.

September 2014 incident

30. On 5 September 2014, EFN was reported to have had a physical altercation with a woman when both were intoxicated at the time. Although police did not consider there was sufficient evidence to proceed with the criminal prosecution, the observations of the complainant and photographs taken of injuries were reportedly consistent with her account of the incident. The applicant says he has never spoken to police about this matter nor did he have his sobriety assessed at the time.

November 2014 incident

31. On 9 November 2014 EFN was involved in an incident with a woman from whom he rented a room. He was intoxicated and it was alleged he acted in an intimidating manner and punched her on her forearm. The police attended the scene. EFN was arrested and charged with assault, assault police and resist police. EFN was subsequently convicted on the charge of resist police and placed on a 12-month good behaviour bond and the remaining charges were withdrawn.

December 2014 incidents

32. On 3 December 2014 EFN was reported to have assaulted a taxi driver. During the incident, it was alleged that EFN falsely told the taxi driver he was a federal police officer and that he would have the taxi driver arrested. EFN was initially convicted on 2 common assault charges and a malicious damage charge, the latter relating to EFN damaging the taxi meter. However, the convictions were subsequently set aside in the District Court and, in lieu, EFN was placed on 3 good behaviour bonds without proceeding to conviction, pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.

33. On 27 December 2014 EFN was involved in an incident at licensed premises when he was asked to leave by the attendant security guard and was alleged to have assaulted the security guard. EFN was convicted of a common assault and fined $650.

2015 assault

34. On 14 October 2015, EFN was reported to have assaulted a taxi driver outside his residence. After a defended hearing, the Court convicted him on the common assault charge and EFN was sentenced to 12 months’ imprisonment. That sentence was suspended pursuant to section 12 Crimes (Sentencing Procedure) Act 1999 on the condition EFN entered a 12-month good behaviour recognisance.

Fabricated evidence to mislead judicial tribunal

35. During the hearing on 28 June 2017 when EFN was defending the above charge of assaulting a taxi driver, EFN submitted a document as evidence that purported to be a report from a medical practitioner stating a version of events consistent with EFN’s version of events. The medical practitioner gave evidence that he was not the author of the document. EFN was subsequently charged and convicted on one count of using false evidence to mislead a tribunal and one count of fabricating false evidence with intent to mislead a judicial tribunal. He was sentenced to concurrent terms of imprisonment of 13 months and 18 months but ordered to serve these terms of imprisonment by way of concurrent correction orders and home detention.

2018 incident

36. On 18 December 2018, EFN was in an incident at a licensed premises when he refused to leave the premises after being given a direction to leave by an authorised person. It was reported that EFN assaulted the authorised person by pushing him and EFN was uncooperative with police when they attended the scene. He was found guilty of a licensing offence for refusing a direction and fined $600. He was convicted on the common assault and placed on an 18-month community corrections order with 150 hours of community service. The community service order component was later deleted due to EFN’s medical conditions.

Disciplinary complaints against EFN and exit from the NSW Police force

37. The respondent submitted that EFN was dismissed from the NSW Police force in 2007 under section 181D of the Police Act 1990. The dismissal was based on the culmination of 18 complaints with 17 adverse findings and 1 sustained findings. The subject of the findings ranged from anti-social behaviour, intimidation, alcohol related offences and misuse of office. EFN disputes this submission and states that he left the NSW Police force due to suffering PTSD and the drinking culture within the NSW Police force. In relation to his dismissal, EFN stated that he filed an application to review the order of the Commissioner of Police dismissing him before the Industrial Relations Commission of NSW. The matter eventually settled with both parties signing a Deed of Release and EFN receiving a substantial sum in compensation. EFN produced a copy of a Deed of Release dated 17 November 2017 consistent with his submissions and as evidence of the settlement.

Apprehended violence orders involving EFN

38. The respondent referred to EFN’s record of 19 apprehended violence orders between 30 August 2008 and 21 January 2017 with 12 expiring after the elapse of the specified period for the orders. The respondent submitted that this indicated a conclusion by the court that there was either consent or an evidentiary basis for concluding that EFN was likely to cause the person in need of protection to feel fear of personal violence, harassment or intimidation from anti-social behaviour by the applicant.

EFN’s evidence

39. EFN submitted several written statements, statutory declarations, a Deed of Release and submissions, as well as giving oral evidence. He stated that he wanted a clearance to continue his work as a First Aid Training Instructor. He denied he is a risk to children referring to the fact that he had never had a complaint against him involving a child. He agreed that he had been the subject of previous findings of guilt and convictions for assault and violence against others but not to the extent claimed by the respondent. That is, many of the complaints did not proceed or charges were dismissed and it would be unfair to rely on these matters when they have not been pursued or proven. He referred to many of the unsubstantiated complaints involved the police and he believes this was because some police had unfairly targeted him.

40. He acknowledged he has a serious neurological condition that requires regular reviews by his treating neurologist and occupational therapist. He acknowledged he has a substance abuse problem and he believed this has also been a factor in many of the previous incidents that involved violence and offending behaviour. He submitted, however, that he has not used alcohol since September 2018 and that he stopped using benzodiazepines while in hospital in June 2020. He acknowledged he had issues with his mental health including post-traumatic stress disorder and is now receiving regular treatment from the Traumatic Stress Clinic at the School of Psychology, University of NSW (“the Clinic”).

39. EFN made the following additional points:

1. He was employed as a police officer for the NSW Police from 1997 to 2003 working in the inner-city area of Sydney. His work included working and assisting children and young people at risk who were vulnerable and often involved with drugs and homelessness. At no time, was he ever subject to a complaint involving children during his time as a police officer. In 2003, he gave evidence to the Police Integrity Commission and this led to false rumours that he was corrupt and involved in criminal activity. He believes he then became a police target and was harassed by other officers and improperly charged with offences that were later withdrawn. He disputes any misconduct and refers to the settlement with the NSW in which he was reinstated and allowed to resign. He also received compensation as part of a Deed of Release with the NSW Police.

2. The respondent relies on a criminal history that is not representative of his risk as most of the charges were withdrawn, dismissed or not pursued. He also noted that while he had been the subject of several AVO’s many were subsequently withdrawn after the charges were either dismissed or not proven. In summary, his record is not a true reflection of his conduct.

3. He provided information, documentation and photographs relating to volunteer work he had undertaken with various charities. This included working with one charity that assisted children with cancer. He was a volunteer from 2005 to 2010 and the letter of service from the charity to the respondent states that he worked as a “companion/ rover volunteer when he attended our recreational programs. The role of a companion/ rover is to provide a supportive and safe environment to children and their families whilst attending our programs”. He worked with another charity from 2012 to 2017 assisting the homeless and handing out food. He also worked with a charity assisting women and children who have been victims of family violence. During his volunteer work he has not been the subject of any complaints involving children. He stopped doing this voluntary work following a direction from the Children’s Guardian however, if he is successful in obtaining a clearance, he would like to resume this work.

4. In relation to his health, he has had a long-standing neurological condition. It began in 2004 when he had a stroke that required a craniotomy. He developed epilepsy and had 3 more craniotomies with the last operation being in June 2020. As a result of the multiple brains surgeries, he has suffered some psychological symptoms.

5. In relation to therapy and treatment, he has had a long association with Dr Lennings, psychologist. He had seen Dr Lennings between 2009 and 2017 when Dr Lennings was a forensic report writer. During this time, Dr Lennings had made contact with EFN’s long-term psychiatrist, Dr Pickles and had knowledge of his treatment. In June 2020, he made contact with Dr Lennings seeking treatment and has had 4 consultations with him since September 2020. Dr Lennings suggested that he re-engage with the Traumatic Stress Clinic (“the Clinic”) where he had been receiving treatment in 2019. EFN told Dr Kwok that he attended 13 sessions with Ms Srishti Yadav (“Ms Yadav”) at the Clinic before it closed and relocated to Westmead due to the pandemic. He then re-engaged with Ms Yadav and commenced seeing her weekly from the 7 January 2021.

42. EFN was cross-examined by respondent’s Counsel and questioned by the Tribunal. EFN was asked about the report from the Clinic dated 18 February 2021 confirming EFN had 4 sessions in January and February. Counsel asked why he did not provide a more detailed report from the Clinic in order that include information about his current treatment, treatment plan and his prognosis could be provided to the Tribunal. EFN stated he did not have the time to provide such a report. He also confirmed that he was attending the Clinic each week for treatment and he intended to continue with this treatment for as long as it was recommended.

43. EFN was asked about the assault conviction arising out of an incident at licensed premises that occurred in December 2018. He agreed that the incident did not involve alcohol. He agreed he came to the premises to collect an elderly man who he worked with as part of one of his volunteer roles. He had an argument with the manager and pushed him. He agreed that he should not have assaulted the manager and that he pleaded guilty to the assault.

44. EFN was asked about the impact on children who witness violence. EFN stated that there could be both short-term and long-term psychological impacts. These include negative effects on their learning and school attendance. They may also develop anxiety and depression particularly around males if the violence emanated from males.

Consideration of s.30(1) factors and findings

a) Seriousness of any matters that caused the assessment in relation to the person

45. The respondent relies on a pattern of offending and antisocial behaviour by EFN including assaults and resisting arrest. EFN submits that many of the charges against him did not proceed or were dismissed. EFN submitted that in relation to those offences of assault and resist police that were the subject of convictions or findings of guilt, apart from the 2015 assault of the taxi driver which attracted a suspended term of imprisonment, the other matters were dealt with by either fines or non-custodial sentences which may indicate they were on the lower end of the scale of these types of offences or there were mitigating circumstances that the Court took into consideration.

46. However, each of the convictions and findings of guilt involved the use of physical violence against others. The offences often involved alcohol and intimidating behaviour towards others. They were therefore, individually serious and the totality of the matters adds to their seriousness.

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

47. The offences and incidents of concern took place over the period from 1999 to 2018. There have been no further charges, complaints or adverse reports concerning EFN since 2018.

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

48. EFN was 22 when the first matter occurred in 1999 and 42 when the last matter occurred in 2018.

d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

49. At the time of the first incident in 1999, the victim was 16. In the September 2014 matter, the victim was reported to be 37. Apart from these matters there is no information regarding the age of other victims except they were all adults. There is also little or no information regarding the circumstances or vulnerabilities of the victims other than they were generally employed as security guards, managers of licensed premises or taxi drivers which as members of the public working in these roles makes them more vulnerable to alcohol-related assaults.

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

50. Apart from the incident in 1999 when EFN was 22 and the victim was 16 there is little or no information on the age difference between EFN and the victims. This age difference is not considered to be significant, given the incidents and offending were largely impulsive and random and had no aspects of manipulation, power imbalance or a breach of trust.

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

51. None of the victims were children.

g) The person’s present age

52. The present age of EFN is 44 years.

h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

53. The span of incidents and offences was from 1999 to 2018. Most of the offending occurred in 2014 and 2015 with no offending or violent related incidents between 1999 to 2010 or between 2015 to December 2018 when the last assault offence occurred. The convictions and findings of guilt related to charges of common assault and resist police. The most serious sentence imposed by a Court on EFN was for the 2015 assault of the taxi driver when he was convicted and sentenced to 12 months imprisonment which was suspended pursuant to a section 12 Crimes (Sentencing Procedure) Act 1999. The other matters attracted fines, bonds and community-based orders.

54. In relation to the matters outlined earlier that were dismissed, withdrawn or not proceeded with as outlined earlier, we make no positive findings but we do give them some weight and consideration given their number and their similar circumstances of EFN being in an intoxicated state and acting aggressively or violently towards other adult persons. That is, contrary to the submissions of EFN, the Tribunal can consider all relevant matters including any allegations or complaints that did not proceed to convictions or findings of guilt on the basis that our primary consideration is the well-being and protection of children.

55. Overall, EFN has a criminal record that spans over 19 years with significant periods without offending or incidents of violence. It is made up of assault charges and antisocial behaviour usually involving alcohol. It is serious and considered in isolation, gives rise to concerns regarding EFN’s risk to the safety of the children.

The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

Dr Lennings, Clinical and Forensic Psychologist

56. Dr Lennings provided a report dated 2 November 2020 and gave oral evidence supplementing his report. He stated he had known EFN from 2009 until May 2019 as a forensic report writer in relation to various court cases EFN had been involved in over the years. He had interviewed and assessed EFN on several occasions over this time. He had also spoken to his treating psychiatrist, Dr Pickles in relation to EFN and prepared treatment plans for EFN. In June 2020, he was contacted by EFN who was seeking psychological treatment. Due to a further neurological operation, he did not see EFN until September 2020. He has since had 3 further treatment sessions with EFN.

57. Dr Lennings stated that the purpose of treatment has been to assist EFN to manage his stress caused by trauma and substance abuse. It has also been to “hold him” whilst EFN re-engages with the PTSD clinic. As EFN has now re-engaged with the PTSD clinic, Dr Lennings no longer sees an ongoing role for himself in EFN’s care. However, given their long association he has given EFN his contact details and he can be contacted by EFN should EFN “get into a crisis in his psychological state”. Dr Lennings stated that he does not believe EFN needs more than one treatment provider.

58. Dr Lennings referred to the following history for EFN:

1. EFN has acquired post-traumatic stress disorder from a combination of things that happened to him as a serving police officer and things that have happened to him since.

2. Neurologically, he suffers from Oslo-Weber-Rendu Syndrome which produces various malformations of blood vessels in his brain, which can haemorrhage. His neurological condition has also caused him to suffer from epilepsy. Over the years his cognitive ability has fluctuated although his cognitive faculties are sufficient for him to engage in adaptive behaviour and he has reasonable life skills and is capable of independent function, except when he is extremely unwell. His most persistent difficulties relate to executive function and to short-term memory.

3. Dr Pickles previously diagnosed EFN with adjustment disorder and was treating him for depression.

4. His principal difficulty has been a long-standing problem with alcohol use. When he drinks, he becomes belligerent and aggressive and disrespectful of others. Alcohol interacts adversely with his executive function deficits and can cause impulsive and intemperate behaviour.

59. Dr Lennings stated that EFN presently has various diagnoses including depression, anxiety and post-traumatic stress disorder. His symptoms can be severe at times and he requires ongoing and intensive treatment. Dr Lennings also stated, “Behaviourally, [EFN] is not impaired to the extent that his psychological conditions, while severe, have impacted on his ability to act rationally or to act respectfully or safely around children. His condition does not result in increases in anger or anger dyscontrol or aggressive or violent behaviour and he does not require treatment for anger. His condition can increase his impulsivity, but such impulsivity is generally only problematic when associated with alcohol use.”

60. Dr Lennings stated that alcohol abuse is typically a chronic relapsing condition but prediction of relapse can be made through periods of abstinence. He notes that abstinence over a 24-month period is predictive of abstinence at five years.

61. In relation to EFN’s risk of harm to children, Dr Lennings concluded;

His current prognosis is positive in the context of seemingly sustained changes in alcohol use, engagement with alcohol rehabilitation and positive and sustained engagement with psychotherapy for his underlying trauma condition. His psychological condition is currently as well managed as possible in the context of his recent medical emergency and the pandemic, and, in any case, does not reflect a risk of harm to children.

62. In cross-examination, Dr Lennings agreed EFN had a moderate neurocognitive impairment and not a severe one. He agreed that EFN had lost “some sharpness, problem solving and some flexibility”. He agreed that in relation to working with vulnerable children, EFN did not present as posing any more risk when compared to other people working in that field. Dr Lennings’ response was based on his own experience of many years supervising workers in that field.

63. Dr Lennings was asked questions about appropriate ongoing treatment for EFN. He recommended appropriate treatment could extend to therapy for up to 18 months to 2 years. However, given EFN’s “life threatening illness”, he may have other problematic events that could require additional or episodic treatment. It was also difficult to predict the extent of the ongoing treatment as it will depend on many factors including the views of the treating therapist. Dr Lennings also noted that EFN had already received some treatment from the Clinic in 2019.

64. In response to questions from the Tribunal, Dr Lennings agreed that to the best of his knowledge, EFN’s current period of abstinence was the longest such period to date. He also noted that since seeing him, he has observed “a qualitative change” in EFN and he seems to be a different character to what he was like between 2015 to 2017.

Dr Kwok, Clinical and Forensic Psychologist

65. Dr Kwok was engaged by EFN to provide a risk assessment in relation to a working with children clearance. She interviewed EFN on the 2^nd and 7^th November 2020 and prepared a report dated 17 November 2020. She had available to her the reports, statements and other documents including Dr Lennings’ reports and the respondent’s written submissions.

66. Dr Kwok took a lengthy history from EFN. She noted that he currently experienced depression and anxiety and was medicated for depression. She noted a long-standing problem with alcohol use. During her assessment, EFN was able to draw a connection between alcohol use and his past aggressive and inappropriate behaviours. She noted he had been abstinent since September 2018 being “a period of sustained remission according to the Diagnostic and Statistical Manuals of Mental Disorders”. She noted the December 2018 offence occurred when EFN was not intoxicated and she agreed that there were other factors besides alcohol that had contributed to his inappropriate behaviours. Dr Kwok recommended that EFN would benefit from psychological therapy including cognitive behavioural therapy. She also stated, “Overall, however, [EFN] does not have a pervasive pattern of aggressive behaviours or problems with anger control in the absence of alcohol”.

67. In relation to EFN’s risk of harm to children, Dr Kwok stated;

On the basis of my assessment, [EFN] does not pose a risk of harm to children. He will however, benefit from continued treatment for his medical and psychiatric conditions. As some of his previous offending occurred during periods of psychosocial instability, his current engagement with volunteer work, church community and his work as a first aid instructor are protective factors against future inappropriate behaviours.

Respondent Submissions

68. The respondent submitted that EFN’s many years of repeated offending support a conclusion that offending is likely in the future. Counsel made the following further submissions:

1. The Tribunal could not be satisfied that EFN is receiving appropriate treatment now and into the future given his complex psychological state and the lack of information regarding his current treatment from the Clinic. This places him at further risk of offending.

2. EFN’s neurocognitive function is unlikely to improve and his impulse and behaviour control will continue to be moderately impaired and this is not dependent on his alcohol consumption. The respondent also referred to Dr Kwok’s oral evidence that any severe symptoms being experienced by EFN may be associated with problematic behaviours.

Conclusion

69. Overall, and having examined all the material, we find on the balance of probabilities that the likelihood of EFN repeating the offending and inappropriate behaviour relied on by the respondent was low.

70. In our deliberations, we gave significant weight to the assessment of Dr Lennings who has first assessed EFN in 2009 and has been treating him since September 2020. Dr Lennings’ views were also consistent with and supported by Dr Kwok.

71. We also gave significant weight to the evidence of EFN. Overall, we found EFN to be a genuine and credible witness. While he was defensive and argumentative at times during in his evidence, he admitted to his previous misdemeanours that involved violence and aggression where there was a finding of guilt or a conviction. He accepted that he had a problem with alcohol that he needed to address. He provided appropriate insights into the impact of violence on children. He appeared to take the NCAT proceedings very seriously. This was demonstrated when on the first day of the hearing the respondent’s Counsel and the Tribunal made several observations regarding the limitations of his medical evidence. EFN responded by arranging and subsequently producing two expert clinical reports and a further letter from the Clinic confirming his current psychological treatment. We accept that he has a genuine commitment to his rehabilitation, abstinence and ongoing treatment.

72. We also accept while a more detailed report from Ms Yadav of the Clinic would have been beneficial, its omission did not appear to be deliberate but more likely a misunderstanding of the meaning and value of such a report to the Tribunal. We accept the opinions of both Dr Lennings and Dr Kwok that EFN should continue to engage in ongoing treatment at the Clinic. We also accepted Dr Lennings’ opinion that EFN only requires one treating provider and, in any event, he was agreeable to assisting EFN should the need arise.

73. In relation to the December 2018 offence that did not involve alcohol, we accept EFNs evidence that he was remorseful regarding his conduct. We also accepted Dr Kwok’s view that this appeared to be a one-off incident that did not involve alcohol and that EFN “does not have a pervasive pattern of aggressive behaviours or problems with anger in the absence of alcohol”. We also noted that at the time of the offence, EFN had not yet commenced his therapy at the Clinic.

Impact on children of any repetition

74. The offences and incidents involving EFN relied on by the respondent did not involve children. However, if they were to be repeated and a child witnessed that behaviour, or witnessed consequential matters such as the distress to a person assaulted or otherwise mistreated, the impact on that child could be serious psychological and emotional harm on that child.

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

75. Not applicable

j) Any information given by the Applicant in, or in relation to the application.

76. We noted EFN’s evidence that his neurological condition is managed by his treating neurologist and treating team including speech and occupational therapists through regular reviews. These reviews take place every 6 months with the next review scheduled for April 2021. We also noted EFN’s evidence regarding his knowledge and understanding of the short-term and long-term impacts of violence on children both directly and indirectly and the importance of the need to protect children.

j1) relevant information in relation to the person that was obtained under section 36A

77. Not applicable.

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

78. We considered all the documentation, information and submissions, both oral and written provided by the respondent.

Conclusion as to whether EFN poses a risk to the safety of children

79. We carefully considered all the evidence in the context of our primary consideration being the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse. We took into account the section 30(1) factors set out above. We decided that on balance, EFN did not pose a real and appreciable risk to the safety of children. In particular, we were persuaded by the accumulation of several factors that included the expert evidence of Dr Lennings and Dr Kwok, the fact that EFN has not been the subject of any offence, charge, complaint or adverse report that involved children, the credibility of EFN’s own evidence and his commitment to rehabilitation, abstinence and ongoing treatment.

Application of s.30(1A) of the Act

80. We must now consider the tests outlined in s.30(1A) of the Act. The first test we must determine is whether a reasonable person would allow his or her child to have direct contact with EFN in circumstances where he would not be directly supervised by another person while engaging in child-related work.

81. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. In this case, the relevant facts would include the full criminal history of EFN including those charges and complaints that were not the subject of convictions or findings of guilt, the written reasons for the decision of the Children’s Guardian to refuse EFN a clearance, the reports of Dr Lennings, clinical and forensic psychologist dated 2 November 2020 and the report of Dr Kwok, clinical and forensic psychologist dated 17 November 2020, a transcript of their evidence including Dr Lennings evidence that EFN did not present as having any more risk to vulnerable children as compared to other people working in that field, the fact that EFN has not been subject of any offence, charge, complaint or adverse report that involved children and EFN’s work history and his work as a volunteer working with charities including a charity where he worked directly with children who had been diagnosed with cancer.

82. Based on the relevant facts, we are satisfied that a reasonable person would allow their child to have direct contact with EFN in circumstances where he would not be directly supervised by another person, while engaged in child-related work.

83. The second part of the test of s.30(1A) is the public interest test. We must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, being the paramount consideration.

84. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

85. EFN has worked as a qualified First Aid Instructor for several years. He works as a sub-contractor for organisations and provides them with resuscitation courses, particularly CPR. This includes Surf Life Saving NSW and other public and government agencies. He requires the clearance as, from time to time, groups include young people from about 15 years. He also requires the clearance to resume his volunteer work in community and charity organisations. Based on his paid and voluntary work, we are satisfied that it is in the public interest to grant EFN a working with children check clearance. It therefore follows that the correct and preferable decision is for us to make the following orders.

Orders

86. The orders are as follows:

1. The decision of the Children’s Guardian dated 5 December 2019 to refuse to grant the applicant a working with children check clearance is set aside.

2. In substitution for that decision, the following decision is made; the applicant is granted a working with children check clearance.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 April 2021