Enl v Children's Guardian

[2021] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENL v Children’s Guardian [2021] NSWCATAD 292

Hearing dates:

7 May 2021

Date of orders:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
L Houlahan, General Member

Decision:

The decision of the Children’s Guardian made on 3 December 2020 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 27 Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900 (NSW)

Crimes (Sentencing and Procedure) Act 1999

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

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

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262

ENL v Children’s Guardian [2020] NSWCATD 301

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

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

Smith v Commissioner of Police [2014] NSWCATAD 184

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

Category:

Principal judgment

Parties:

ENL (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
In person (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00361866

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

1. The Applicant is a 54 year old married man. He is the father of twin daughters, a son, and the stepfather of two other children. On 2 July 2018, he was issued the most recent Working With Children Check Clearance (‘WWCCC’).

2. The Applicant is referred to as ‘ENL’. ENL is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in paragraph [7] below.

3. On 20 February 2020, the Children’s Guardian became aware that ENL recorded a continuous check event. The circumstances involved ENL being charged on that date with two counts of child related ‘assault occasioning actual bodily harm (AOABH)’ and ‘take action that results in physical injury/sexual abuse’ – two counts. ENL pleaded guilty to the two charges of AOABH. The remaining two charges were withdrawn.

4. On 9 September 2020, ENL was given notice of proposed cancellation of his WWCCC. On 3 December 2020, the Children’s Guardian, having conducted a risk assessment, cancelled ENL’s WWCCC.

5. On 21 December 2020, ENL filed an application seeking this Tribunal to review the Children’s Guardian’s decision to cancel his WWCCC pursuant to s27 of the Child Protection (Working With Children) Act 2012 (‘the Act’). The application was filed within the prescribed 28 day time period.

6. It is this application that is before us for determination.

Background

7. On 8 February 2021, the Tribunal made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

8. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

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.

9. The grounds of ENL’s application for review are:

“firstly I still disagree with the statements made by Childrens guardian concerning their statement that I was provided details of my records and details about information obtained from govrnment [sic] agencies mentioned above (in the list of documents the Childrens guardian used to make their decision, both originally and under a review).

Secondly I disagree with the decision made and wish it reviewed on the basis that in my opinion this decision was based on information fro [sic] DCJ that was in cases untrue, unsubstantiated and taken out of context or from different timelines and made to fit this instant incident. ‘’

10. The issue to be decided by the Tribunal is whether ENL, following a risk assessment should be granted a WWCCC.

11. In reaching this position the Tribunal is required to consider the factors set out in ss 30(1) and (1A) of the Act and determine whether he poses a risk to the safety and well-being of children. We are also mindful that the risk must be both realandappreciable.

The working with children legislative scheme

12. 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 working with children check clearances: s 3 of the Act.

13. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

14. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

15. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act.

16. Section 23 of the Act constrains the Children’s Guardian from allowing a WWCCC to remain in place if, following a risk assessment the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

23 Cancellation of clearances

…

(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.

…

17. To determine whether a person is a risk to the safety of children, the Respondent must carry out a risk assessment if it becomes aware that ENL is subject to a risk assessment (see section 15 of the Act).

18. As the Respondent became aware of the charges against ENL in the Local Court of New South Wales, and following the undertaking of a risk assessment under s 15 of the Act, ENL’s WWCCC was cancelled on 3 December 2020 under s 23 of the Act.

Jurisdiction

19. Part 4 of the Act deals with reviews and appeals. Section 27 of the Act enlivens the Tribunal’s jurisdiction to review a decision made by the Respondent cancelling a person with a WWCCC. Relevant to these proceedings the section provides:

27 APPLICATIONS TO CIVIL AND ADMINISTRATIVE TRIBUNAL FOR ADMINISTRATIVE REVIEWS OF CLEARANCE DECISIONS 

1. A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

2. A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

3. A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

4. An applicant must fully disclose to the Tribunal any matters relevant to the application. 

5. Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

6. The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person's Employer. 

7. A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

8. This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .

[Emphasis added]

20. As a preliminary finding, the Children’s Guardian has cancelled ENL’s WWCCC and the conditions of section 27(2) are satisfied.

21. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

22. Section 30 of the Act sets out the mandatory factors to be considered by the Tribunal in assessing risk and when determining a review application. We have addressed each of the matters under ss 30(1) and (1A) below.

Assessment of ‘risk’

23. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42   One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but 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. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

25. Most recently, the New South Wales Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk. Beech Jones J said:

“…Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

26. The Court of Appeal in CXZ describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

27. Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.

28. When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite:

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 

   (a)   any relevant factual material, 

   (b)   any applicable written or unwritten law.

The Hearing

29. The hearing took place by audio-visual link. Each of the parties filed written evidence. ENL was cross-examined. ENL and the solicitor for the Respondent Mr Madden made concluding oral submissions.

Written evidence

30. Each party filed written evidence as follows:

ENL

• Application filed 21 December 2020 – (A1)

• Bundle filed 21 January 2021 – (A2)

• Bundle filed 10 March 2021 – (A3)

Respondent

• Section 58 documents filed 15 February 2021 - (R1)

• Further documents filed 14 April 2021 - (R2)

• Annexure ‘A’ – MFI 1

31. The parties each rely on written submissions.

Factual Background

32. ENL has been married to his current wife since 1999. He has fathered twin daughters (aged 20 years) with his current wife and a son (aged 18 years). He is the stepfather of children AA and BB.

33. AA is the biological mother of child 1 and child 2.

34. In around April 2015, ENL and his wife commenced caring for child 2 under a family agreement.

35. On 29 November 2016, ENL and his wife filed a foster care application form and associated documentation for provisional authorisation to be a relative or kinship carer.

36. In around December 2016, ENL and his wife commenced caring for child 1 also under a family arrangement.

37. In 2017, child 1 and child 2 entered the care of ENL and his wife under a relative and kinship care arrangement.

38. From 2017 – 2019, several different events occurred culminating in a decision made by the Department of Communities and Justice (“DCJ”) to remove child 1 and child 2 from the care of ENL and his wife. The events included; inappropriate strategies in disciplining of children, disclosure by one of ENL’s daughters she had attempted suicide because of alleged abuse by ENL’s son, the parenting abilities of ENL’s wife concerning child 1 and child 2 and allowing child 2 to have unsupervised access with AA knowing that the children were removed from AA’ care because of neglect and abuse, ENL’s wife accidentally locking child 2 in the kitchen for some hours, ENL physically hitting child 1 and child 2 with his hand as punishment and leaving marks, restricting food as a form of punishment causing child 1 and child 2 to lose weight and appear malnourished.

39. On 29 January 2020, DCJ via the DOCS helpline was notified by a person of an incident that was relayed to them by child 2. It was reported to the helpline that child 2 said ENL hits her and child 1 as punishment and sometimes leaves marks. She said that ENL tries to hit ‘my rude parts’. Child 2 demonstrated this to the person reporting the information by hitting herself over her vagina and crotch area with her hand. It is recorded that she told the person that she sometimes puts her hand down there to protect herself. It is recorded that she answered a question about whether ENL hit her once by saying ‘No he hits me about 5 times’. Child 2 reported that this occurred around Christmas 2019.

40. ENL was charged in relation to events occurring between Tuesday, 28 January 2020 and 29 January 2020 concerning allegations that he commenced hitting child 1 with a belt across the upper thigh and across his legs. The alleged assault left welts and bruising across the thigh area. ENL was charged with assault occasioning actual bodily harm and child and young person abuse pursuant to sections 59(1) Crimes Act 1900 and 227(a) Children and Young Persons (care and Protection) Act 1998.

41. On the same occasion child 2 was also struck with a belt across the upper thigh area, hitting her across the legs also causing marks which included bruising. Identical charges were laid against ENL with respect to child 2.

42. Photographs of the welts and bruising are included in the papers. The photographs depict significant marks and bruising on both of the children’s legs.

43. It is these criminal charges which led to the Respondent to conducting a risk assessment and the cancellation of his WWCCC. ENL entered a plea of guilty to the two charges of AOABH. The remaining two charges were withdrawn. He was sentenced under ss 10 and 9(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (CSP Act) with a conditional release order (CRO) to be of good behaviour for 18 months without conviction.

44. On 6 February 2020, the Department of Communities and Justice (“DCJ”) placed child 1 and child 2 in a temporary care arrangement and removed them from the care of ENL and his wife.

45. In deciding to cancel ENL’s WWCCC, the respondent considered the criminal matters, including an apprehended violence order to protect child 1 and child 2, and a number of events and circumstances concerning incidents between May 2019 and February 2020, which include:

‘Information provided by DCJ indicates that between May 2019 and February 2020 multiple reports were received relating to psychological harm and excessive discipline of the children. The information includes reports that ENL assaulted the children, often using an implement, that he and his wife sprayed the children with water, made them sit with their noses against a wall for an excessive amount of time, locked the children in their rooms and the kitchen overnight, and yelled at the children. Concerns were reported relating to ENL and his wife using disciplinary techniques that were psychologically harmful to the children, who both had significant trauma histories and developmental and behavioural concerns relating to this. On another date, during a medical appointment to review medication, a paediatrician was so concerned regarding bruising and weight loss of the children that she admitted them to hospital under a social admission. DCJ noted that ENL and his wife were continuing to use demeaning and demoralising disciplinary techniques despite DCJ involvement, despite ENL and his wife having attended an emotion coaching seminar and ENL attending ‘1-2-3 Magic’.’

46. At the date of hearing both child 1 and child 2 have not been returned to the care of ENL and his wife.

ENL’s evidence

47. It is not in dispute that ENL agreed that he pleaded guilty to the charges of AOABH. In both his written material and in oral evidence, ENL expressed remorse for his behaviour which led to the charges. As set out below he underwent some months of treatment with a psychologist Dr XX. ENL said that he is now able to implement strategies to regulate his behaviour and says he will not act in the same manner that he did.

48. In Exhibit A2 is a statement of ENL dated 28 September 2020. Relevantly, in relation to the charges referred to in paragraph [40] above he states:

‘… the subsequent outcome of these court proceedings where [sic] the matter did not proceed to sentencing, due to the fact that the court magistrate could clearly see that the two matters for which I had been charged over was in fact an isolated incident and was unlikely to ever be repeated, along with the facts that I had acknowledged what I had done was the wrong actions at the earliest instance, was extremely remorseful for my actions and had taken steps to ensure I addressed the underlying issues that led to the events of that day.’

49. We accept that ENL is remorseful for his conduct. However, we do not accept his evidence that the criminal matters did not proceed to sentence. ENL was dealt with by way of a CRO and an apprehended violence order to protect child 1 and child 2. We accept that the presiding Magistrate would have taken into account the criteria as set out in ss9 and 10 of the CSP Act, which would include some of the matters raised by ENL in the preceding paragraph.

50. ENL denies that he has ever locked the children in their rooms or in the kitchen. He also says it is impossible to lock child 1 in his bedroom as the door is a sliding cavity door and cannot be locked. He refers to child 2 being accidentally locked in the kitchen by his wife which he said is well documented. We accept his evidence in this regard.

Smacking of children generally and child 1 and child 2

51. ENL, apart from the facts and circumstances with which he was charged in January 2020, initially denied he has ever hit either child 1 or child 2 or any of his other children at any other time. He says that he is not, nor has he been, a person who physically disciplines children. ENL denied, other than the circumstances surrounding the January 2020 offences, that he hit the children with his hand. He agreed that he had hit them with a belt. He said he was aware of allegations that his wife hit the children with a spoon but did not see her do so. He denied that he pulled the children by the hair and agreed that he was aware of an allegation his wife did so but did not witness it. Specifically, in response to the cancellation of his WWCCC at page 340 Exhibit R1 ENL states: ‘In response to the hitting of the children, I have already denied hitting child 2 and child 1, as well as any other children from the outset of this matter at any time apart from the matter to which I was subsequently charged with…”.

52. During cross-examination ENL maintained this position in relation to hitting children until the following exchange occurred:

‘Q:   What do you say will never happen again.

A:   Hit the children at all.

Q:   You have hit the children with your hand as punishment.

A:   I won’t deny that I have not hit them on the bottom with my hand.

Q:   I suggest this morning I asked you questions about time out and punishment and you said you did not hit the children as punishment.

A:   I am not saying I never do it, I am saying in the course of parenting of 7 children, I don’t know how to word it, it is not something I did with any regularity.

Q:   When I asked you if you yelled at the children as a form of punishment you said rarely.

A:   Yes.

Q:   That was not your answer when I asked you whether you hit the children with your hand was it.

A:   No I’m sorry I should have.

Q:   You have hit the children with your hand as punishment.

A:   I may have once or twice done that on rare occasions.

Q:   You accept that is inconsistent with what you said this morning.

A:   If I hit them regularly, I would remember. I cannot recall a single incident, probably why I answered no this morning.

Q:   You are suggesting that hitting a child with your hand was an uncommon event.

A:   Yes.

Q:   Are you suggesting that it was not so rare that you would not recall specific incidents.

A:   Yes.

Q:   Look at Tab 20 which is your affidavit. This is a document you accepted you prepared with a solicitor.

A:   Yes.

Q:   You understand that this was to be used in the Children’s Court.

A:   I believe so.

Q:   You knew the significance of telling the truth.

A:   Yes.

Q:   At page 311 of R1 at paragraph 17 you said: ‘We do not usually hit the children and if we did, it was never on the head.’ Is that true.

A:   Yes.

Q:   Do you accept that means that you did hit the children from time to time.

A:   No.

Q:   The word usually means sometimes.

A:   No, it says we

Q:   Are you saying that from time to time you jointly hit the children, but you never did.

A:   No.

Q:   What do you mean to say.

A:   No, I can honestly say I did not hit child 1 and child 2 apart from the time of the offence.

Q:   Did you, other than the occasion you were charged, ever hit with your hand or otherwise any of the 7 children in your care.

A:   Apart from the offence, on a very rare occasion I may have hit my children but certainly not child 1 and child 2.

Q:   When you say ‘hit the children’ you are referring to child 1 and child 2.

A:   I assume that is what the solicitor referred to.

Q:   But you signed the document and swore to it.

A:   Yes.

Q:   It involved child 1 and child 2.

A:   Yes.

Q:   When you used the words ‘the children’ that is who it relates to.

A:   No, it does not specify them.

Q:   When you say ‘we’ you accept that you and [your wife] from time to time did hit children, you were swearing to the truth of that, so you accept that.

A:   In the greater context to the issue yes.

Q:   I’ll take you to Tab 26 of R1. While this document is in the s58 bundle you also filed a copy of this.

A:   Yes probably.

Q:   At page 325 on the bundle at paragraph 4 it reads regarding smacking child 1 on the back, we deny this happened. Any smacking that may have ever occurred was only ever done on the bottom and only as a last resort. You see those words.

A:   Yes.

Q:   You prepared this document.

A:   Yes.

Q:   Further ‘as stated, all physical discipline occurred on the bottom only and we both categorically deny ever hitting either child on the head. Neither of us understands where this statement comes from.’ You accept what you were saying is that you did physically discipline the children.

A:   I denied hitting them on the head.

Q:   You refer to physical discipline on the bottom not if there was no physical discipline.

A:   I would not no.

Q:   You accept that you did physically discipline the children.

A:   I did not physically discipline them.

Q:   It is not correct.

A:   This statement is in the plural form not only to include myself.

Q:   Do you recall I asked your knowledge of your wife physically disciplining the children.

A:   Yes.

Q:   Do you now say that you accept your wife would physically discipline the children.

A:   I can’t deny that.

Q:   But it is also in the paperwork you provided.

A:   If you take the words literally yes.

Q:   At Tab 28 of R1 you prepared this notice in response to the cancellation of the working with children check clearance.

A:   Yes.

Q:   At page 340 were the words ‘in response to the hitting of the children, I have already denied hitting child 2 or child 1, as well as many other children from the outset of this matter at any time apart from the matter to which I was subsequently charged with …’ this is not consistent with your affidavit to the Children’s Court.

A:   I can’t deny that.

Q:   It was not consistent with the response to [anonymised].

A:   It was consistent.

Q:   You have hit children because of their behaviours.

A:   Yes.

Q:   Was that in response to discipline or stress.

A:   Discipline.

Q:   You often yell at the children when they misbehave.

A:   I have.

Q:   You earlier said you rarely yell.

A:   I would yell as opposed to using physical discipline. I don’t make a habit of it.

Q:   This is not correct.

A:   It is.

Q:   Please look at page 350 at Tab 30 at the bottom with the words starting - ‘I lost it, [anonymised] lost it, I hit them on the ass, normally a yeller’.

A:   I accept I said that.

Q:   It was normally that it was not rarely.

A:   Whether this occurs once, or a thousand times does not enter the occasion.

Q:   It was a document prepared by DCJ - written in front of you.

A:   Yes, it was in front of me it is the raw notes of the safety assessment.’

53. We find ENL to be an honest witness overall. However, this part of his evidence is an example in our view of how he attempted to minimise or distort the true nature and extent of his disciplining of children. It was not until ENL was pressed in the cross-examination that he accepted he administered corporal punishment on the two children outside of the events of the January 2020 offences. We, therefore, have taken caution in the weight we can give ENL’s evidence in terms of his parenting and discipline of child 1 and child 2, and to some degree, his other children, when considering risk. ENL’s lack of candour taints his evidence concerning the parenting, disciplining and treatment of his children. We find that ENL did smack child 1 and child 2 on more occasions than ENL initially said he did. His evidence in cross-examination is contrary to other submissions he made to the respondent on this point for example - see page 340 Ex R1.

54. ENL states at no stage did DCJ offer he and his wife support or guidance and training around effectively managing problematic behaviours in children who have a trauma background. He says that he was the person who instigated child 2 receiving support through psychological assistance and attending some courses themselves and not at the request of DCJ’s recommendation or referral. ENL said that despite attempting to implement strategies learned in the ‘1-2-3 Magic’ course, they were ineffective with respect to a number of escalating behaviours of child 2. ENL says the statement that the children were immediately placed into the hospital at the request of the paediatrician is an overstatement. He says they were placed in the hospital because DCJ did not have any carer placements available for the care of the two children, not because of their injuries requiring immediate medical attention. We find that despite the reason for admission to the hospital, the children were found by the treating team to have visible injuries requiring medical attention.

55. In cross-examination, ENL agreed that in 2017 when he and his wife assumed care of child 1 and child 2, they were aware that the children had been abused by their mother. He said that he and his wife were also aware that the children’s mother had overdosed them and they had a traumatic upbringing which led to challenging behaviours. He said that the children’s behaviour was different in 2020 to the period between 2015 to 2016.

56. ENL agreed that when he and his wife became responsible for the care of child 1 and child 2 in 2017, he was confident that with the support of the family they could care for the two children.

Disciplining the children

57. Over a period of 10 years ENL agreed that he had cared for about 7 children. At times the children would misbehave, which required rebuke from himself or his wife. He denied that he would punish the children. He said that from time to time the children would be sent to ‘time out’. He did not recall making the children sit on a mat but said ‘time out’ included the children putting their nose towards a wall which he and his wife included that as part of their disciplining of children. On some occasions, ENL agreed he would yell at the children as did his wife. Questions were asked of ENL in terms of whether the children were sent to bed early. ENL agreed that they were, and ‘maybe 3 times’ they went to bed early and had sandwiches to eat instead of a full meal.

58. Mr Madden put to ENL that on 20 February 2018, one of his daughter’s disclosed a suicide attempt at school. ENL said he first became aware of this when seeing a police report supplied to him by the Respondent in these proceedings. The circumstances surrounding the suicide attempt related to physical abuse in the home against ENL’s daughter by his son. He denied that he was aware of such abuse and said if he had been so aware he would have intervened. We accept his evidence.

59. It was not in dispute that child 2 exhibited challenging behaviours when showering which related to previous trauma. ENL said that he became aware t in 2019 that his wife made a recording of child 2 not wanting to have a shower. He said was not aware the recording was being made but became so aware when discussing these matters with the child psychologist about 2 hours later. He agreed child 2’s behaviour in the recording could be described as her ‘being distressed’. ENL refused to answer a question as to whether it was inappropriate conduct to record a child when in distress. He proffered an explanation that the recording was undertaken to provide to child 2’s psychologist to help her. ENL agreed that he and his wife were aware of child 2’s previous trauma about showering and had raised it many times with the psychologist, whom he says did not believe it was a problem. There is no professional evidence before us as to the effect recording a child may have in times of distress. However, we find the recording of a child in such circumstances would probably add to the child’s distress. It is in our view but one of an accumulation of factors we have considered in determining the appropriateness of ENL’s parenting and risk to children.

60. ENL agreed that hitting a child with a wooden spoon constitutes child abuse. He agreed that he had become aware in these proceedings that his wife had hit child 1 and child 2 with a wooden spoon. We place limited weight on this evidence given the events relate to ENL’s wife. However, the limited weight we attach goes to the accumulation of factors relating to the overall approach and discipline techniques adopted, ignored, or not addressed by ENL, in managing children’s challenging behaviours and discipline.

61. ENL agreed that hitting a child with a hand also would constitute child abuse.

62. ENL said making the children stand against a wall with their nose on the wall was inappropriate management of children. He denied that this form of discipline would involve the children standing against the wall for a long period of time for up to an hour. ENL said that the psychiatrist with whom the children’s behaviour was being reviewed recommended time out for the children. We are unable to make a positive finding as to how long child 1 or child 2 were made to stand against the wall in this way. We do however attach weight to this practice which was put in place by ENL (and his wife), again adding the accumulation of factors concerning the inappropriate management of children and the risk posed to them by ENL, either by his action or inaction in these circumstances.

63. The cross-examination moved on to questions concerning child 2’s delay and difficulties in getting ready for school. ENL denied that in 2019 child 2 was required to sit on a mat for 82 minutes as a form of punishment. It was put to him that the 82 minutes represented how long it took her to get ready for school. He agreed that around that time child 2 took a long time to get out of bed and required motivation to do so which sometimes took up to 2 hours. He denied ever spraying child 2 with a water bottle and said he was not aware of any other person in the household that did so. ENL agreed that in 2019 his wife accidentally locked child 2 in the kitchen. He agreed that at night the children were known to go into the kitchen. Locking the kitchen was a method used to stop them from doing so.

64. We are unable to make a positive finding concerning the above events (except the locking of child 2 in the kitchen as this did occur). We suspect the events may have occurred but given our findings we do not attach weight to these alleged events. Our suspicion arises given ENL’s lack of candour regarding the smacking of children discussed above.

Unsupervised access with the children’s mother

65. ENL was asked questions about his knowledge concerning his wife allowing child 2 to have unsupervised access with her mother. He said: “I was aware of this, but me and my wife were not aware it was not allowed”. When asked whether it was appropriate for the children’s mother to have unsupervised access with her children given their traumatic background, he replied “I agree it is appropriate that she has contact with the children. I think that would depend on the circumstances; under certain circumstances, I find it appropriate, other times it would be inappropriate”.

66. The cross-examination did not explore in what circumstances this would or would not be appropriate. ENL agreed that he was aware of why the two children were removed from the care of AA including trauma and overdosing of the children with medication. Given his knowledge, what is obvious in our view, is that ENL lacks insight into why unsupervised access is or may not be appropriate. We attach significant weight to this evidence in considering our finding ENL lacks insight into the exposure of risk to child 1 and child 2 in these circumstances.

The children’s access to the back yard and caravan

67. ENL’s home during the time he cared for the two children was under renovation. ENL agreed that on occasion the two children would go into the backyard where there were building materials on site. He said the children were told they were “not allowed to go outside, it was a house rule”. Despite this, the children would go outside. He was unaware of whether the children hurt themselves on the building material but agreed from time to time the children would bruise themselves. Mr Madden put to ENL that he attempted to explain bruising on the children after his offending as resulting from injuries sustained in the back yard or whilst the children were riding their bikes. ENL denied this proposition. We accept his evidence.

68. ENL agreed that there is a caravan in the backyard of the family home containing a number of power tools, nail guns, saws and other items. Despite the children being told they were not to go into the caravan, they would do so. ENL said he recalls that the children accessed the caravan at a time he described as being “pre-dawn”. It was put to him that that time was 4.00 a.m. ENL said he could not be certain of that time. ENL denied telling the Children’s Guardian on 24 February 2020 that on a couple of nights he had found the children in the caravan. He said that he found evidence that they had been in there, not that he found them in the caravan.

69. Mr Madden took ENL to page 48 of Exhibit R1 and put the following passage to him:

‘[deleted] asked Applicant to explain what had been happening in the lead up to the charges. The Applicant said that for the past 4 months the children have barely been sleeping. A couple of nights prior to the incident he’d awaken at 4.00 a.m. to find them both in a caravan outside. He said he sues [sic] the caravan to store his tools including nail guns and saws.’

70. ENL agreed with the passage put to him above and said that he accepts he said to the Children’s Guardian that the children had not been sleeping. The following exchange then took place:

‘Q”:   Do you accept the next part you found them in the caravan.

A:   I can’t recall saying it but I cannot say I did not say it. I can’t recall finding them in the caravan. I can’t be sure.

Q:   Can you be confident that you never found them in the caravan.

A:   I can be.

Q:   Do you accept what you may have told the Children’s Guardian is incorrect?

A:   I might have found them outside the caravan.

Q:   Do you recall waking up at 4.00 a.m. and finding that the caravan had been entered.

A:   I recall waking up at 2.00 a.m., 7 days a week and eat with the children out of bed.

Q:   Do you remember waking up at 4.00 a.m. and finding the caravan open.

A:   I can’t remember the incident.

Q:   But you knew the children entered the caravan at night on occasion.

A:   Yes.’

71. We find that ENL was aware of the children had been accessing the backyard and the shed in the early hours of the morning. As to the precise timing, we find that it was pre-dawn and could very likely have been at 4.00am or before. ENL was not certain about exactly what he told the respondent. We have already made findings concerning ENL’s candour and his previous minimisation of events. We have treated this part of his evidence in such a manner and on the balance of probabilities, we accept the version of the conversation as recorded by the respondent.

Concerns around the children’s weight

72. ENL was taken to a conversation he had with the Children’s Guardian on 16 July 2020. The following paragraph was read to him:

‘[deleted] asked Applicant about a social admission to hosp following a medication review. Applicant said this occurred on 6^th Feb 2020. He said that the paediatrician saw the bruising following the trigger incident. He said it was the same, not a separate, incident. He said that the doctor was also concerned about the children’s weight, which he didn’t understand because according to a graph in her office the kids were ‘well within normal range’. The Applicant said that they had lost weight because their diets were healthier (they’d cut back junk food) and the kids were burning more kcals than they were consuming, due to being active throughout the night.’

73. ENL denied that he told the Children’s Guardian that the children had lost weight. He said that the doctor was concerned about their weight. He agreed that at the time he accepted the children had lost weight as he had nothing to refute it. In relation to the graph referred to in the telephone conversation, he said, “It came out of the blue that she did not know why their weight was as it should have been”. He agreed that he probably told the Children’s Guardian that he did not understand why the children had lost weight. ENL said he does not recall asking the doctor about why it was concerning the children had lost weight. He agreed that he had told the Children’s Guardian that he did hold such concern and that the doctor’s concern may have at the time also concerned him. He agreed that he did not ask the doctor enough questions at the time to understand what the concern was but later he found out that it was a major concern.

74. We find there is evidence that ENL and his wife to an extent restricted food as a form of punishment. However, DCJ alleged that this caused child 1 and child 2 to lose weight and appear malnourished. We can not make a finding to this extent based on the evidence before us. However, we find that ENL around this time lacked insight into the seriousness of the children’s dietary needs, which, the treating paediatrician and members of the treating team following examination of the children held particular concern about during admission at a local hospital in February 2020. The discharge notes describe the principal diagnosis as being ‘weight loss’ over a period of months which is material.

The events of and stressors leading up to, the February 2020 charges

75. ENL agreed that he told Dr XX, his treating psychologist that he was facing a number of stressors in the lead up to the charges. Those stressors included that his wife was experiencing depression, grief and back problems. He also referred to the children’s multiple behavioural challenges, the illness concerning his sister and father and that he had work and financial stress and was completing home renovations.

76. ENL agreed that managing the children and providing care were contributing factors which led to his offending. He agreed that he was sleep-deprived and he had concerns about a medical condition relating to one of his daughters. He said that all these stressors are matters which are not easily foreseeable or avoidable and that each of them may arise again in the future. ENL agreed that the stress he encountered in February 2020 could reoccur and at least in February 2020, he was himself unaware of the state he was in.

77. ENL agreed on 20 February 2020 he was at work and upon returning home he found bicycles that were not stored away correctly. ENL formed the view that the children had been riding their bikes where they were not supposed to, the dog water bowls were broken and when feeding the dogs, he broke up a dog fight. He said the accumulation of these events caused him to go into an “uncontrollable rage”. He did not feel that he was in control of himself which, led to ENL hitting the two children with his belt. He agreed that the conduct of hitting the children with his belt is child abuse and it should not have happened. He said that at the time of the offence he posed a risk to the children’s safety. Following these events, he deeply regretted what had happened and agreed that it is something he will never do again.

78. ENL accepted that at the time of his offending it was in the best interests of child 1 and child 2 that they were removed from his and his wife’s care. He was then asked whether with hindsight he would leave his children, who were 7 and 8 years of age, in the unsupervised care of a person convicted of assault in the last 18 months to which he answered ‘Honestly I think I would. I would have concerns but everyone should have a chance.’

79. After cross-examination, ENL was asked questions by Member Houlahan. He said that he had a traumatic background as a child and was disciplined with the use of a feather duster. ENL was asked questions concerning his evidence about engaging in child behavioural management courses known as Triple P and 1-2-3. He said despite undertaking those courses the strategies provided did not help manage child 1 and child 2. He agreed that as part of the 1-2-3 Program the adult is not to yell, hit or argue with children. Despite this training, ENL had at times hit, yelled and argued with the children.

Submissions by the Applicant

80. ENL took us in closing submissions to a number of documents. At page 50 of R1 he contends that the COPS narrative as recorded by the Children’s Guardian in its documents demonstrates that child 1 and child 2 had bruising on their legs as a result of being struck by their grandparents using a belt and a spoon and not their back and head. We can not make a positive finding that the children were hit on their back or head. We do however find that they were hit by ENL with his belt and at times by his hand.

81. ENL said that because of being stood down after going through the working with children check process, he has been unable to continue to attend his church or work. Without a WWCCC he is unable to continue to do so. ENL contends that there was only one incident where he hit child 1 and child 2 as he says is evidenced at page 233 of R1 in a conversation he had with the detective investigating the matter. We do not accept this submission given our findings set out above.

82. ENL contends that the Tribunal should set aside the decision of the Children’s Guardian and order that he be issued with a WWCCC. He said that the evidence reveals that there is not a pattern of child abuse by him against children. He said he is a person of good character and made a big mistake on a particular day, the price of that is losing most of his friends and family. He said that he is not an ongoing threat to children whether in his care or in the public and every day he has come into contact with children since the charges without any further event occurring. Since being issued with a WWCCC in 2013, it is only the January 2020 offence with which he was charged that caused the Children’s Guardian to undertake a risk assessment and cancel his clearance. He acknowledges that the offence was a ‘major offence and I can only improve.’

The Respondent’s Submissions

83. The Respondent submits that the Tribunal should affirm its decision because ENL poses a real and appreciable risk to children due to the circumstances related to the charges, a lack of insight into his conduct and the absence of sufficient evidence of rehabilitation.

The evidence of Dr XX

84. Dr XX has been treating ENL since 4 February 2020. After the initial consultation he ENL participated in seven subsequent treatment sessions from 18 March 2020 to 20 May 2020. Dr XX is the author of a report dated 20 May 2020 which ENL relies upon.

85. ENL reported to Dr XX that he was experiencing multiple stressors; with sources of stress including family, court proceedings, health, finances and household renovations. He reported symptoms including marked distress, depressed mood, irritable mood and behaviour, general anxiety, sleep disturbance, persistently negative thoughts about life in general, persistent and exaggerated negative beliefs about himself, somewhat diminished ability to think or concentrate, low self-confidence and self-doubt, low suicidal ideations and significant impairment in social, occupational, and other important areas of functioning.

86. He described to Dr XX the events which occurred on 28 January 2020, as he: “flew into an absolute rage, and I hit both kids twice and sent them to their room”. He stated when he hit them “I didn’t feel that I was in control”. After he calmed down, he felt physically sick and knew he had done the wrong thing.

87. ENL described the above stressors he was experiencing immediately prior to his offending in January 2020. He also reported to Dr XX that he had requested greater support from Family and Community Services which the children’s paediatrician was to follow up.

88. Following assessment and examination, Dr XX diagnosed ENL with meeting the criteria for an adjustment disorder with mixed anxiety and depressed mood. He provides a differential diagnosis including generalised anxiety disorder, panic disorder and major depressive disorder. Dr XX opines: “it would be reasonable and necessary for [ENL] to continue having fortnightly psychological treatment for at least the next 2 to 18 months, or until there is substantial symptom resolution”.

89. In order to enhance the resolution of symptoms, it will likely be important for [ENL] to have regular consultation with his GP and or a psychiatrist regarding pharmaceutical treatment. The frequency of consultation should be determined in collaboration with the treating psychiatrist.

90. Dr XX opines that the “longer-term prognosis for resolution of symptoms is good.” He has difficulty in providing with accuracy a timeframe for resolution of symptoms given the presence of ongoing symptoms, and the stated stressors remain. Dr XX estimates between two and twelve months should pass before [ENL] more consistently experiences positive states and emotional stability. The timeframe for resolution of symptoms will depend on ENL participating in further treatment and the extent that he utilises self-care, regulation, and other related strategies.

91. Importantly, Dr XX states:

“Should it be deemed that it would be in Child 2 and Child 1’s best interest that they return into the full-time care of [ENL and his wife], it would likely be beneficial for [ENL and potentially his wife] to:

Complete one or more targeted parenting programs (e.g., tuning in to Kids, ParentWorks, Triple P Positive Parenting Program); and

Receive other supports (e.g., respite, enrolment of children in school holiday programs).”

92. Dr XX concludes by stating that ENL was engaged in the initial assessment and subsequent treatment sessions. Specifically, he states:

[ENL] is demonstrating a growing level of:

Insight into the factors which led to his current state and the incident on 29/1/20

Insight into the emotions and moods that he experiences, and the link between situations, emotions; body, thoughts and responses;

ability to consistently identify and apply general steps to manage situations in which emotions (e.g., anger, anxiety, stress and aggressive impulses are activated;

insight into consistently applying appropriate self-care strategies; and

insight into consistently principles and practises of effective conflict resolution.

[our emphasis]

93. We have also considered the session summaries provided by Dr XX ranging from ENL’s initial consultation on 4 February 2020 to 20 October 2020. The summaries include ongoing reports of stressors and concerns about the children moving to Queensland, feeling like ‘everything I do something, it gets harder and harder’, ‘kids no longer wanting to speak to us’, ‘work has been underpaying me’, concerns about making things work for ENL’s father coming to stay, feelings of ‘dread’, ‘annoyance’, needing to change for ENL’s father to settle in.

94. ENL also reported to Dr XX on 20 October 2020, he is overall feeling and doing well – having broken the cycle from the past. The records include ENL saying that he is ‘better at putting things in perspective’.

95. Dr YY, ENL’s general practitioner on 29 April 2020, wrote to Dr XX and refers to the ongoing review and management of ENL’s depression. Dr XX has sent letters to Dr YY about the treatment of ENL. On 10 June 2020, he recommends further sessions are recommended and his presenting problems continue to impact ENL’s capacity to thrive in work and personal life. On 21 December 2020, ENL continues to present with multiple stressors including family, court proceedings, health and fitness. Dr XX records that ENL said he has made ‘great progress in terms of understanding and controlling his mood and emotions and is happy to terminate treatment.’

96. We note that over the period of treatment ENL received from Dr XX, he did not participate in any further parenting training programs as recommended by Dr XX referred to in paragraph [91] above. Dr XX uses the word “growing level of” insight into various emotional and behavioural reactions. The use of these words implies ENL requires further time and intervention to gain better insight. ENL in cross-examination said that despite the two courses he did participate in prior to the events leading up to the offences with which he was charged, the parenting programs Triple P and Magic 1-2-3, offered he and his wife no practical solutions, or indeed solutions which worked, in managing the children’s behaviour. It is commendable that ENL continued with the treatment from Dr XX. It appears from the treatment notes, and ENL’s own evidence that he has developed skills to manage his own emotions and behaviour. However, what is lacking in our view is evidence that ENL has engaged in the specific treatment proposed by Dr XX as set out in paragraph [91] above. ENL’s participation in similar parenting programs such as those recommended in the terms set out by Dr XX is critical to ensure the protection of children from child abuse when considering ENL’s criminal history and the circumstances surrounding the assaults on 28 January 2020. ENL’s failure to be able to implement strategies learned from the two programs he did participate in and his failure to engage or participate in further parenting training is in our view material. These are factors which in our view demonstrate that sufficient time has not passed since ENL’s offending which could lead to a finding that ENL is not a real and appreciable risk to the safety of children. ENL has not satisfied us that further risk to children has been ameliorated by him participating in the parenting courses as proposed by Dr XX.

Section 30 (1) considerations

97. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

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

98. The Respondent cancelled ENL’s WWCCC following the two charges (4 counts) relating to the assaults on child 1 and child 2 to which he pleaded guilty, being:

1. assault occasioning actual bodily harm (2 counts).

99. The circumstances involved child 1 and child 2 on 28 January 2020, being involved in an altercation with ENL. Whilst the two children were in the naughty corner with their noses touching the wall, ENL hit child 1 multiple times across the upper leg with a belt. ENL then used the belt to hit child 2 multiple times across the legs.

100. At the time of being charged with the offences on 20 February 2020, an Apprehended Violence Order (AVO) was put in place against ENL naming child 1 and child 2 as persons in need of protection.

101. ENL pleaded guilty to the charges of AOABH. The remaining two charges were withdrawn. He was sentenced under 10(1)(b) of the CSP Act where an 18-month CRO (without conviction) was made under s9(1)(b) of the CSP Act on 29 July 2020.

102. The actions of ENL are serious and involved repeated violent acts by ENL against his two grandchildren using a belt. The offences carry a maximum penalty of 5 years in prison if proceedings are commenced on indictment. ENL was dealt with under table 2. His matter was heard in the Local Court where the maximum term of imprisonment is 2 years. There is no evidence that an election was made to transfer the matter to the District Court to be dealt with on indictment.

103. ENL’s actions were violent in a domestic setting which led to an AVO being made to protect the two children. The nature and effect of an AVO has the intent of ensuring the safety and protection of all persons, including children, who experience or witness domestic violence.

104. The AVO was made for a period of two years. We accept the respondent’s submissions that the need to protect the two children would have been taken into consideration by the presiding Magistrate when the AVO was made as it relates to the potential or likelihood of further violent offences occurring at the hand of ENL. ENL continues to be subject to the AVO and the CRO until 28 January 2022. The expiry date of the CRO and AVO are material factors that we have considered in determining the seriousness of ENL’s offending and whether he is a real and appreciable risk to the safety of children generally.

105. The conduct of ENL was direct physical abusive behaviour towards his 7 and 9 year old grandchildren. ENL said in his evidence, which we accept, that the offending occurred in a fit of uncontrollable rage brought about by a number of stressors. Be this as it may, the purpose of the Act is to ensure, amongst other things, the protection of children and that their welfare, safety and wellbeing is held paramount. In making a decision in matters such as these the Tribunal must consider the protection of children from child abuse.

106. ENL attended counselling with Dr XX shortly after police first attended his home in early 2020. Despite ongoing treatment with Dr XX, there is no evidence before us that ENL participated in the recommended parenting programs outlined by Dr XX. ENL agreed in cross-examination that the stressors which caused him to erupt in an uncontrollable rage included his inability to manage the children’s behaviour. He also agreed that the stressors, which include managing the children’s behaviour, were outside of his control and unforeseeable. These are material factors we have considered in determining ENL’s future risk to the safety of children.

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

107. The offending which led to criminal charges concerning ENL relate back to 2020. Even prior to that time ENL agreed that he and his wife struggled with the effective and appropriate behavioural management of two children who had traumatic backgrounds. ENL agreed, and we find, he was unable to implement disciplinary techniques learned in courses such as Triple P and 1-2-3 Magic within the home environment. He has failed to engage in further professional assistance dealing with parenting skills as recommended by Dr XX. ENL remains subject to a CRO and AVO until January 2022. Despite there being no reported similar incidents involving ENL following the removal of the two children from ENL’s care, we consider the relatively short period of time that has passed since February 2020 and the remaining CRO and AVO in place, which in part ensure the protection of child 1 and child 2, are factors material to our finding that ENL is a real and appreciable risk to children.

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

108. ENL is now 54 years of age. The serious abuse which led to ENL being charged with the offences occurred in 2020 when he was approximately 53 years of age. There is no suggestion that ENL’s age can be a factor that indicates that immaturity affected how he managed children’s behaviour or discipline of them generally. On the contrary, his age is a factor in our view which indicates that ENL ought to have been able to restrain himself from acting in the manner he did on 28 January 2020.

(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.

109. The victims of the offences were child 1 who was 7 years old at the time of the offending, child 2 was 9 years old.

110. Due to the young age of both child 1 and child 2, we find they were particularly vulnerable. An additional feature of their vulnerability was that they were both children who had been removed from the care of their biological parents on a background of trauma.

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

111. The difference in age between ENL and child 1 is 45 years. There is a 43 year age difference between ENL and child 2.

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

112. ENL was aware of the ages of the victims, they were his grandchildren.

(g) The person's present age.

113. ENL is 54 years of age.

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

114. As set out in (a) above, the circumstances in which ENL pleaded guilty to the charges of assault occasioning actual bodily harm were serious. Apart from driving offences to which we attach no weight, there is no evidence of ENL being alleged to have committed offences or having been charged with other offences since.

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

115. ENL did not adduce any risk assessment or other expert evidence in relation to the likelihood of any repetition by him of the offences or the conduct which have the impact on children of any such repetition. However, the report of Dr XX does touch on some of these issues which are set out above.

116. ENL violently reacted and assaulted his two grandchildren in circumstances where he was unable to control his rage. His actions were caused by various stressors in his life. In cross-examination ENL agreed that each of the stressors causing him to act as he did were outside of his control. He said he was not able to prevent those stressors from reoccurring.

117. We are not satisfied that ENL has demonstrated his ability not to repeat the way in which he did in similar circumstances which led to the charges he pleaded guilty to. We accept that to a significant degree ENL has worked through with Dr XX the management of his emotions and some of the stressors he has and continues to experience in day-to-day life. However, due particularly to the short period of time which has passed since his offending, ENL’s admission that he would not be able to prevent similar stressors from occurring given that they were outside of his control and unforeseen, is relevant to our determination.

118. We have taken into consideration that ENL is able to recognise his emotions and remove himself from a position where he may react in a similar way. However, in questioning by Member Houlahan, ENL agreed that despite undertaking the Triple P and 1-2-3 Magic courses, the strategies which were included in those courses concerned the management of children’s behaviour, ENL said he was unable to implement those strategies, which he agreed included not yelling at children, hitting, or arguing with them. This is a persuasive factor in our view which causes us concern in finding that the likelihood of any repetition of similar conduct is low. Our finding is supported by the evidence of Dr XX as set out in paragraph [91] above.

119. The Respondent submits that ENL failed to obtain the support he required to adequately care for his grandchildren and places blame on FACS for that failure. We accept that the contents of ENL’s Statutory Declaration is inconsistent with notes made in April 2017 by FACS that ENL and his wife, if overwhelmed, would seek support and assistance through family/friends and professionals. However, what is more, persuasive in our view is that ENL and his wife, despite undertaking the two parenting courses Triple P and 1-2-3 Magic, were unable to implement strategies to manage the two children, and in particular child 2. Dr XX recommended ENL to engage in further parenting courses, which he has not done. We accept that ENL and his wife say they have been unsupported by FACS in managing the two children. Despite this, the paramount considerations under the Act are prominent in our minds. To that end, we are not satisfied that ENL has demonstrated the requisite insight and undergone recommended training to ensure he is able to effectively manage children’s behaviour. Events such as the children wandering in the backyard and the shed in the early hours of the morning, hitting of children with a belt and hand, yelling at children, disciplining children by standing them against a wall with their nose in the corner are all examples of inappropriate management of children. In our view, these circumstances alone place children at risk.

120. ENL agreed that the backyard contained a caravan with dangerous power tools and other implements which could cause injury to the children. The backyard itself had construction material contained in it which, on ENL’s own evidence, could also present a hazard to the safety of children. Despite ENL and his wife’s instructions to the children not to enter this area, in our view, there was no evidence before us which would satisfy a finding that ENL (and his wife) had the insight to, and put in place, appropriate strategies to protect his grandchildren from exiting the house at such early hours of the morning and potentially placing themselves in danger.

121. Due to the short period of time since the offending behaviour occurred, the remaining similar stressors that led up to his offending and the fact that ENL has not completed any further parenting training, we are not sufficiently satisfied that ENL may not re-offend. The evidence in our view does not satisfy us that we can make a positive finding that ENL does not pose a real and appreciable risk to the safety of children. In time, the evidence may be sufficient to lead to an alternate finding.

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

122. We have taken into consideration that ENL is subject to a CRO that does not expire until 28 January 2022.

123. ENL is also subject to an AVO which names his two grandchildren as persons in need of protection. That order does not expire until 28 July 2022.

124. For the reasons already set out above, this is in our view a material factor on which we have placed considerable weight.

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

125. We have taken into consideration a large bundle of evidence filed by ENL in these proceedings. Whilst the material confirms that ENL is remorseful for his conduct, it does not in our view assist us in finding that he does not pose a real and appreciable risk to the safety of children.

126. We accept the Respondent’s submission that ENL’s continued grievance with the Department of Communities and Justice raises concern about his willingness to engage with that department when required, including where it relates to the interests of children. Similarly, we have placed considerable weight on ENL’s evidence that he was unable to implement strategies learned in the two parenting courses he participated in. ENL agreed that despite one of those courses including strategies to not smack, argue or yell at a child, this did occur. These are matters which go to either a lack of insight into managing children’s behaviour or an inability of ENL to control his emotions and resulting behaviour when facing difficult situations involving children.

127. We have taken into consideration the submissions of the Respondent that ENL lacks insight into the appropriateness of his parenting style, and the apparent lack of appreciation of protective behaviour and the importance of the risk assessment process. We find that ENL at the time of hearing does lack such insight.

128. It is evident to us that ENL does not have an appreciation of taking a trauma-informed approach to the management, discipline and care of children affected by trauma including his grandchildren.

129. We have considered ENL’s evidence that he appeared to have enabled, or at least did not object to, or stop, child 2 from having unsupervised access with her biological mother in circumstances where such access was not permitted. This is evidence of his inability to act protectively towards children.

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

130. Not applicable.

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

131. The Children’s Guardian submits the Tribunal ought to find that ENL’s lack of insight into his offending, the appropriateness if his parenting style and lack of appreciation of protective behaviour are relevant factors in our determination.

132. We have considered these matters which are addressed above.

Our findings

133. Having considered the mandatory factors in s30(1), we find that the circumstances with which he was charged alone lead us to the conclusion that ENL poses a real and appreciable risk to the safety of children. In addition, the accumulation of factors such as his lack of insight into disciplining and managing children, the AVO and CRO remaining in place until 28 January 2022, ENL’s failure to engage in further courses concerning the parenting of children and the effluxion of time, all demonstrate at the date of hearing that ENL is in our view a real and appreciable risk to the safety of children. After reviewing all the evidence, and considering the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, he should not be granted a WWCCC.

Section 30 (1A) consideration

134. Given our findings, we are not required to consider s30(1A).

Orders

1. The decision of the Children’s Guardian made on 3 December 2020 is affirmed.

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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: 08 October 2021