EFZ v Children's Guardian

[2022] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFZ v Children’s Guardian [2022] NSWCATAD 10

Hearing dates:

2 July 2021 and final submissions 2 August 2021

Date of orders:

12 January 2022

Decision date:

12 January 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Organ, Senior Member
Emeritus Professor P Foreman AM, General Member

Decision:

(1) The decision of the respondent, made on 12 February 2020, to refuse the applicant’s application for a working with children check clearance is set aside.

(2) In substitution for that decision a decision is made to grant the applicant with a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW - refusal of working with children check clearance – applicant charged with intent to cause grievous bodily harm – found not guilty by reason of mental illness - factors to be considered – correct and preferable decision

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

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

BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD

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

Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

Category:

Principal judgment

Parties:

EFZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Higgins (Respondent)

Solicitors:
Ramsland Laidler Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00078679

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

1. These are proceedings for a review of a decision to refuse to grant the applicant a working with children check clearance (“clearance”). The critical question is whether the applicant poses a real and appreciable risk to the safety of children.

2. The Tribunal is satisfied that the applicant does not pose a risk to the safety of children and has decided that the correct and preferable decision is to grant her a clearance.

Procedural chronology

3. The applicant, who is a 35 year old woman, was granted a working with children check (WWCC) on 2 February 2018.

4. On 21 December 2018 the applicant was referred for a risk assessment and as a result an interim bar was imposed on her by the Children’s Guardian. This was because the applicant had been charged with the offence of ‘wounding person with intent to cause grievous bodily harm’ contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (the index offence).

5. On 29 March 2019 the applicant lodged a fresh WWCC application.

6. On 26 April 2019 the Children’s Guardian wrote to the applicant confirming that she was the subject of an interim bar.

7. On 27 November 2019 the applicant was sent a Notice of Proposed Refusal by the Children’s Guardian.

8. On 12 February 2020, the Children’s Guardian notified the applicant that she had been refused a WWCC.

9. On 10 March 2020, the applicant filed an application to the Tribunal for administrative review of the decision of the Children’s Guardian to refuse her a WWCC.

10. On 3 June 2020 in the District Court of New South Wales the applicant was found not guilty of the index offence by reason of mental illness.

11. Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) that 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. To give effect to this order, the pseudonym ‘EFZ’ has been used for the applicant’s name, and geographic locations (other than references to New South Wales) have not been disclosed to protect against identification of any person named in these proceedings.

The legislative scheme and legal principles

12. Section 3 of Child Protection (Working with Children) Act (the Act) sets out that the object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have a WWCC.

13. Section 4 of the Act provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

14. Section 15 (1) of the Act provides that the respondent is to conduct a risk assessment of an applicant to determine whether they pose a risk to the safety of children if the respondent becomes aware that an applicant for a working with children check clearance is subject to a risk assessment requirement. A person is subject to a risk assessment requirement if any of the matters in Schedule 1 apply to the person.

15. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 27 of the Act, section 30 of the CAT Act and section 9 of the Administrative Decisions Review Act 1997.

16. In reviewing the decision of the Children’s Guardian, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997. The Tribunal may consider material that was not before the Children’s Guardian at the time of the decision not to grant a clearance to the applicant.

17. This means that the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing.

18. In determining this application, the Tribunal has power to affirm, vary or set aside the decision: ss 63(3) of the Administrative Decisions Review Act 1997.

19. When determining an application under s 27(1) of the Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

(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 criminal history and the conduct of the person since the matters occurred,

1. the likelihood of any repetition by the person of the offences or 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.

20. Section 30(1A) of the Act, provides that the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children:

(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.

21. The Tribunal must consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant is “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [ 42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].

22. As indicated in the objects of the Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature. That is, the object of the Act is not to impose additional punishment on an applicant, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA) (with whom Hodgson JA at [1] and Handley AJA at [78] agreed) in respect of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (CPPE Act).

23. Neither party bears an onus in an application for review under s 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [39]-[40].

Written evidence

24. The applicant relied upon the following documentary material (A1):

1. Application filed 10 March 2020

2. Affidavit of applicant dated 20 January 2021

3. Statement of applicant’s husband dated 17 January 2021

4. 12 character references

5. Letter from applicant’s Psychologist dated 8 December 2020

6. Letters from applicant’s General Practitioner, dated 2 December 2020 and undated

7. Letter from applicant’s Counsellor dated 24 November 2020

8. Reports of Dr Richard Furst, Psychiatrist, dated 29 October 2019, 29 July 2020 and 29 April 2021.

25. The Children’s Guardian relied upon the following documentary material:

1. Section 58 documents filed 20 May 2020 and 14 September 2020 (R1, R2 and R3)

Background and the index event

26. The background and details of the index event are set out in the decision of His Honour Judge Smith SC in the District Court on 3 June 2020 which was in evidence. (R2 at 1138) The applicant, through her Solicitor, acknowledged at the hearing that she accepted the factual matters set out in His Honour’s decision regarding the circumstances of the index event.

27. The applicant and her husband married in 2008. Their first child was born in 2009 and subsequently she experienced post-natal depression. She subsequently suffered a number of miscarriages including a quadruplet pregnancy. She had a further three live births. Over the next few years, the applicant’s mental health declined and she sought counselling, but she found it difficult to talk about her losses. Difficulties in her relationship with her husband developed. She came to suspect correctly that he was having an affair.

28. On 6 December 2018 the applicant and her husband went out for dinner for their wedding anniversary and her husband spoke of a possible separation. The next day the applicant deliberately lacerated her stomach with an angle grinder but neither she nor her husband, who was aware of this, sought medical attention for her injury immediately. It was not until 10 December 2018 when the applicant went to see her GP that she received treatment for the wound and was referred to a psychologist and the acute mental health care team by her GP.

29. On 16 December 2018 the applicant’s husband again suggested they separate. The following day the applicant called triple-0 complaining of her husband’s treatment of her.

30. On 18 December 2018, over a week after the referral was made by her GP, the applicant saw a medical officer with the acute mental health care team after clinical concerns were raised by the GP.

31. On 19 December 2018 the applicant’s husband moved downstairs at their home with a plan to end the marriage. A family holiday was still to go ahead with the husband planning to leave a day earlier to travel to the holiday location without the applicant due to the difficulties between them. The plan was for the applicant to follow. The husband told the applicant about this plan. Shortly after this the applicant again rang triple-0 and then the local police station saying she wanted to speak to a domestic violence officer because of emotional abuse by her husband. The Police attended the applicant’s home that same night and after speaking to both the applicant and her husband there were concerns held about the applicant’s mental health by one of the Police officers. However, they did not remove the applicant’s husband from the premises or take any action in relation to the applicant’s allegations of emotional abuse.

32. After the Police left, the applicant stabbed her husband with a kitchen knife in the garage of their home. As noted by Judge Smith there was some controversy about what happened and the response of the applicant’s husband. However, the objective evidence was that the applicant inflicted at least three knife wounds on her husband which each penetrated the skin and one of which caused a pneumothorax.

33. The applicant was charged with one count of wound with intent to inflict grievous bodily harm, contrary to section 33 (1)(a) of the Crimes Act 1900. His Honour was satisfied on the balance of probabilities that at the time she wounded her husband, the applicant was suffering from a defect of reason from a disease of the mind, namely a depressive episode in her major depressive illness, and as a result of that she lacked capacity to reason about the wrongfulness of her actions. His Honour found that the applicant was not guilty by reason of mental illness.

34. An inquiry under s 39 of the Mental Health (Forensic Provisions) Act 1990 was conducted following the District Court finding. On 28 August 2020 the District Court ordered that the applicant be released from custody subject to conditions which included that she attend appointments with her Psychologist until the end of 2020, and thereafter at a frequency indicated by her GP and psychologist She was also required to take medication prescribed by her treating doctors and undergo psychiatric review every three months or at a frequency advised by her GP or person undertaking the review. She was also required to attend relationship counselling, to enhance communication and problem-solving in her marriage at a frequency advised by the counsellor. Finally, she was to access relevant family support services to assist with coping with stress as a mother when necessary.

The applicant’s evidence

35. The applicant gave sworn oral evidence and was cross-examined. She provided a large amount of written material in support of her application including written statements she made to the Children’s Guardian, references from members of the community supporting her application and evidence from her treating psychologist, a counsellor she saw following the index event and a report from a psychiatrist.

36. The applicant is now 35. She and her husband have four young children. The applicant has been an allied health-care professional for approximately 11 years. She requires the WWCC to be employed as an allied health-care professional although she does not intend to work as a paediatric professional. She says the events which led to the cancellation of her WWCC have caused significant personal and financial hardship.

37. Since the middle of June 2020, the applicant has resumed living with her husband in the matrimonial home. An apprehended violence order against her remains in place for the protection of her husband until 14 June 2022. The applicant says her relationship with her husband is now happy and connected. They have undertaken marriage counselling and are committed to remaining in good mental, physical and emotional health. Despite the events which led to the refusal of the WWCC, she believes their children have come through well and describes them as each socially, emotionally and academically intelligent. She says she has not only the support of her husband and family but social supports including her church community. She is involved in activities including running support groups for mothers, and fundraising activities.

38. The applicant has been compliant with her prescribed medication for treatment of her mental illness which is a condition of her release.

39. The applicant was cross-examined extensively in relation to her attendance for ongoing counselling/psychological treatment with Psychologist and Her counsellor and the decision that further attendance would be on as ‘as needs’ basis. Her assertion that she had been given effective psychological tools by Psychologist was questioned by Counsel for the Children’s Guardian. However, the applicant did describe an example of one of these coping mechanisms and says in her written evidence before the Tribunal that she has multiple strategies that she uses on a daily basis to cope. She was also able to identify a list of factors which she said she would be vigilant in looking for as being signs that she was not coping. Both her psychologist and GP refer to the applicant having increased self-awareness, coping mechanisms and good insight into her mental illness. The applicant said the decision that further attendance at sessions with her psychologist would be on a ‘as needs basis’ after January 2021 which was her last consultation with her psychologist, was a mutual decision.

40. The applicant saw her counsellor with her husband for marriage counselling on three occasions. A further three appointments were made but either cancelled or re-scheduled. Apart from an appointment being cancelled because of a clash with a parent/teacher night, the reasons for this were not clear in each instance from either the applicant’s evidence or that of her counsellor. The applicant was, however, clear that she believed attendance at further appointments would be on an as needs basis. Her counsellor’s evidence provided some support for this in that he said he would not generally mandate further counselling as to do so would be counter to the process of building and maintaining trust and openness with clients. He said the applicant had been open about the index event and that this was why they were attending him for counselling.

41. Her counsellor observed in his evidence that he considered the applicant and her husband had good insight into their relationship and that their commitment to one another was clear to him. This was consistent with the applicant’s evidence on the improved state of the relationship between her and her husband.

42. Overall, we found the applicant to be a credible and truthful witness who impressed us as being candid in her responses to questioning about a very difficult period in her life leading up to the index event and its aftermath.

Does the applicant pose a risk to the safety of children?

43. Set out below are our findings in relation to each of the s 30 (1) factors.

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 (s 30(1)(a))

44. The matters that caused a refusal of a clearance is the index event referred to above. 

45. The index event was objectively extremely serious. This is reflected in the maximum penalty if convicted of the offence of wounding with intent to cause grievous bodily harm of 25 years imprisonment. The applicant’s husband sustained serious physical trauma.

The period of time since those offences occurred (s 30(1) (b)

46. It has been just over two and a half years since the index event occurred in December 2018. There have been no further incidents since that time.

47. We consider the length of time since the index event occurred and that the applicant has engaged in pro-social activities since then, weighs in favour of the applicant being granted a clearance. (s 30(1)(b)).

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant’s present age (s 30 (1) (c)-(g) )

48. The applicant was 33 at the time of the index event and is now 35. The victim was 31 at the time of the index event and was the husband of the applicant. There was a two year age gap between them. The victim was not a child.

The seriousness of the applicant’s criminal record, the conduct of the applicant since the offences occurred, (s30 (1) (h))

49. Neither before or after the index event have there been any issues or concerns raised in regard to the applicant’s conduct with children identified in the material before us. There was no evidence available to us which indicated she had been the subject of any investigations, complaints, disciplinary action or any other events that could be considered adverse to her.

50. Since the index event the applicant has made an effort to engage in pro-social activities in the community in particular through her involvement in her church. She has also addressed her mental illness and sought treatment and counselling in relation to this. She has also undertaken relationship counselling and has reconciled with her husband. In our view her evidence demonstrated both insight and remorse in relation to the index event.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

51. We are satisfied, from the following evidence, that the likelihood of any repetition by the applicant of the commission of violent conduct is low.

52. Her psychologist, says the applicant has a number of protective and motivating factors in maintaining her mental health including her children, her relationship with her husband, her plan to re-enter the workforce as an allied health professional and her insight into how to avoid becoming mentally unwell in the future. In addition, she says the applicant has some effective coping strategies to better manage her mental health and well-being.

53. The applicant’s GP says the applicant has demonstrated commitment to managing her mental health issues including maintaining compliance with her anti-depressant medication. Her GP also says the applicant has engaged ‘extremely well’ with psychological therapy.

54. Dr Kerri Eagle, Consultant Forensic Psychiatrist, provided a report dated 20 August 2020 for the Director of Public Prosecutions in relation to the criminal proceedings against the applicant. She was asked to address both the applicant’s current condition and risk of further violent offending. Dr Eagle says the applicant appears to be in remission of her mental illness as a result of pharmacological and psychological treatment. As to whether she was likely to seriously endanger the safety of her husband or any member of the public if released, Dr Eagle says this not likely if the applicant regularly attends on her GP for monitoring, takes her prescribed anti-depressant medication, and has ongoing psychological interventions. She also notes that the applicant would benefit from relationship counselling. The applicant was also noted to be likely to benefit if she was in a structured occupation and engaged in recreational activities independent of her family.

55. Counsel for the Children’s Guardian correctly says that the threshold test for risk assessment under the Mental Health (Forensic Provisions) Act 1990 is the absence of serious endangerment to the public. This is a narrower threshold and different to the assessment of a real and appreciable risk to the safety of children which is what this Tribunal must consider.

56. We have placed weight on Dr Eagle’s opinion that the applicant has a low to moderate loading of historical, clinical and risk management factors known to be associated with violent re-offending. She considers the fact the applicant has been compliant with her medication, has been stable in terms of her mental health, has sought medical and psychological help and has community and family support are protective factors.

57. Dr Richard Furst, Forensic Psychiatrist in addition to his two reports in evidence, gave oral evidence and was cross-examined. He presented as a professional and balanced witness and we found his opinion both compelling and persuasive. We have placed substantial weight on his views. He saw the applicant on three occasions in total. He said a combination of medication, psychological counselling and relapse strategies means that the applicant’s major depressive disorder can be effectively managed. While the risk of relapse would be high if she were to cease medication, Dr Furst’s opinion was that the applicant would be a low risk of re-offending in a violent manner, or in another non-violent manner. On specific questioning regarding the risk of harm to children if she became unwell in the future Dr Furst said he thought this was low but acknowledged the risk of indirect harm to children. Dr Furst said the applicant’s insight into her previous symptoms is an important factor as to whether there is reassurance that she would seek early intervention to prevent relapse.

58. Dr Furst makes the following point in his report of 29 April 2021 which we find compelling:

Aside from my own reviews of [the applicant] and the briefing material, two independent bodies with considerable judicial and forensic expertise [the District Court of NSW and the MHRT] have also come to the same conclusion, namely that [EFZ] does not pose any significant risk to herself or others, including children, with both bodies being happy for her to continue residing with her four young children in her family home.

59. Although the victim of the applicant’s offending behaviour was not a child it is well accepted that children can be the indirect victims of violence. We accept that, if the applicant were to commit violent offences again, this could impact upon children adversely. This would depend, of course, upon whether any children witnessed or were the victims of such an offence.

60. In the circumstances of this matter there are strong reasons to conclude that, despite her past violent conduct, the applicant does not now pose a real or appreciable risk to the safety of children. These include that she has never behaved violently to children, she is receiving treatment for her diagnosed mental illness and has sought counselling with both a psychologist and relationship counsellor. We accept her evidence that she regards all of these health professionals as part of her support network and would not hesitate to seek further assistance if required.

61. We are not convinced as suggested by Counsel for the Children’s Guardian that the applicant ceased treatment with Psychologist or her counsellor without a proper clinical indication and in contravention of the conditions of her release. The conditions of her release did not mandate that she attend a psychologist or relationship counsellor for a set period of time. She did attend sessions with her Psychologist and her counsellor and she continues to see her GP as required by the conditions of her release. We accept the applicant’s evidence that she would return to see Psychologist and her counsellor if for example she noticed signs her mental state was deteriorating. Her counsellor’s evidence was that if he knew that the counselling was part of a court ordered process, he would not have changed his counselling process with the applicant and her husband. He also said in his oral evidence that although he expected them to return after their last appointment, the process he was undertaking with them was at least to some extent on an ‘as the need arises’ basis and he does not mandate appointments.

62. In our view the fact that the applicant attempted to seek assistance from a number of health professionals in the lead up to the index event supports her evidence that she would do so in future. Further while at that time she was not wholly successful in obtaining assistance in a timely manner despite referral by her GP to the acute care mental health team, we consider that her chance of successful intervention is much greater now that she has a clearly defined network of professional support and insight into her mental illness.

63. The applicant has the support of her husband, has engaged in pro-social activities since the index event and has support in the community through her church network. She is strongly motivated to remain well for her children and to be able to resume her career. A wide range of people with whom she has worked, or with whom she has come into contact, have provided references attesting to the high regard in which they hold her. The applicant now has her relationship and her career at stake if she relapses, providing her with a strong incentive to continue engage with medication and other treatment.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

64. We have placed substantial weight upon the evidence provided by the applicant, including the written references which are supportive of her application.

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

65. Not applicable.

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

66. The Children’s Guardian initial position was that the application neither consented to or opposed the application. Following the hearing, the final position adopted by the Children’s Guardian was that the application was opposed.

67. We have addressed other submissions made on behalf of the Children’s Guardian above. Additionally, the Children’s Guardian submits the relatively short period of time that has passed since the index event is significant as weighing against the Tribunal having confidence in the success of therapeutic intervention for the applicant. We have considered that submission but note that it is over two and a half years since the index event. This is not a long time, but nor is it short. In that time there has been a significant change in the applicant’s circumstances most particularly in relation to her now taking medication prescribed for her mental illness, having undertaken counselling and therapy, having insight into her mental illness and the triggers for relapse. The applicant was able to articulate that insight in our view very clearly in her evidence before the Tribunal and according to Dr Furst in her consultations with him.

Findings and conclusion

68. There is no statutory presumption that the applicant poses a risk to the safety of children. Having regard to all of the material before us we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children for the following reasons:

1. We find that the applicant’s offending was serious. However, the victim was not a child. Neither before or after the index event is there is any evidence of conduct that could be considered adverse to the applicant.

2. We find the applicant has engaged in pro-social activities, has a strong network of support in the community since the index event and is committed to preventing relapse of her mental illness including adherence to her medication regime and review with her treating doctor. She has sought both psychological treatment and relationship counselling and has indicated she will do so again if she considers this necessary.

3. Although the period of time since the index event is not lengthy, we consider the applicant has well-considered and realistic goals for managing her mental illness in the community. This is evidenced by her insight into her mental illness and the ability to identify triggers for relapse and the need for early intervention if she notices signs of deterioration in her mental state.

4. The applicant is in a long-term relationship with her husband of approximately 13 years and they have both indicated their commitment to that relationship. She is strongly motivated to remain well for her four young children who continue to live with her. These are identified as protective factors by Dr Furst and her psychologist.

5. She intends to seek employment in her chosen career which she had pursued for some 11 years prior to the index event. Employment is noted by both her psychologist and Dr Furst as a protective and motivating factor to maintaining good mental health.

6. She has the support of people in the community who have given written references in support of her application and at least some of whom indicate they are aware of the index event. She has a strong network of support through her church community.

7. We accept Dr Furst’s finding of the identifiable protective or risk management factors against the applicant reoffending. He says her recovery has been substantial and sustained. His opinion is that the applicant is at low risk of re-offending in a violent manner and she does not pose real and appreciable risk to the safety of children.

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

69. Section 30(1)(A) of the Act applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that :

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

2. it is in the public interest to make such an order

70. The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the Act whether “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” is the evidence set out above.

71. Having regard to all this evidence, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst she is engaged in child-related work. The reasonable person would have particular regard to the following matters:

1. the index event did not involve children;

2. the applicant has no prior criminal history, has not been charged or convicted of any other offence since the index event and has no other events that could be considered adverse to her;

3. the applicant has reconciled with her husband and is in a committed relationship with him as well as having a strong network of support in the community;

4. the applicant is receiving treatment for her depressive illness including medication and has had counselling and therapy;

5. the applicant has developed insight into her mental illness;

6. the applicant has provided references from a number of individuals who have attested to the fact that they are aware of the index event and would still allow their children to be left in the applicant’s care.

7. Dr Furst’s opinion that the applicant has a very low likelihood of any repetition of her offending conduct and does not pose a real appreciable risk to the safety of children.

72. The Tribunal must also be satisfied of the second part of the test in s 30 (1)(A) that the order is in the public interest.

73. The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

74. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. The applicant wishes to work in her chosen career in allied health, and requires a WWCC to do so. Having regard to the findings of the District Court of New South Wales in relation to the index event, the evidence available to us and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.

75. For the reasons set out above, we find that the decision of the respondent is not the correct and preferable decision. Accordingly, the appropriate order is to set aside the decision and in substitution thereof make a decision that the applicant be granted a clearance.

Orders

76. For all of these reasons, we make the following orders:

1. The decision of the respondent, made on 12 February 2020, to refuse the applicant’s application for a working with children check clearance is set aside.

2. In substitution for that decision a decision is made to grant the applicant with 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 New South Wales Civil and Administrative Tribunal.

Registrar

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

Registrar

Decision last updated: 12 January 2022