FGM v Children's Guardian

[2022] NSWCATAD 403

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FGM v Children’s Guardian [2022] NSWCATAD 403

Hearing dates:

26 September 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
J Herberte, General Member

Decision:

The Tribunal affirms the decision under review and dismisses the application for administrative review.

Catchwords:

ADMINISTRATIVE LAW- Child Protection-Working with Children Check Clearance- Disqualifying Offence-Administrative Review- Public Interest

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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

Cases Cited:

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

Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476, at [42]

Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8

VQB v Secretary of the Department of Justice [2013] VCAT 78 at 36

Director of Public Prosecutions v Smith [1991] 1VR63

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

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

CXZ v Children’s Guardian [2018] NSW CATAD36

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FGM (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Zheng (Respondent)

Solicitors:
H Blazeley (Agent) (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00362880

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

Introduction

1. The applicant in these proceedings is referred to as "FGM". FGM is a pseudonym used in these proceedings in conformity with the non-disclosure order.

2. On 14 January 2019, the applicant applied for a Working With Children Check Clearance (WWCCC) , pursuant to section 13 of the Child Protection (Working with Children) Act 2012 (CP Act.)

3. Because the respondent became aware that the applicant had been charged with assault occasioning actual bodily harm pursuant to Section 59 of the Crimes Act 1900 NSW (“the trigger offence”) on 5 January 2014, which is a matter specified in section 1(2)(a) of Schedule 1 of the CP Act, the respondent was obliged to conduct a risk assessment to determine whether the applicant poses a risk to safety of children under Section 15(1) of the Act. In so doing, the respondent may consider the matters set out in Section 15(4) of the CP Act.

4. On 14 February 2019, the respondent notified the applicant that the respondent was required to conduct a risk assessment.

5. It is unclear whether the charges for the trigger offence were withdrawn or dismissed. It is clear that the applicant was not convicted of the offence.

6. On 27 August 2021, the respondent again wrote to the applicant and advised him that the respondent considered that he would pose a risk to the safety of children if he were to engage in child related work. The applicant was invited to submit additional information in support of his application by 20 September 2021.

7. On 29 October 2021, the respondent advised the applicant that it had decided to refuse his application for a WWCCC.

8. On 16 December 2021, the applicant applied for administrative review of the respondent’s decision not to grant him a WWCCC. His application states: “The applicant does not pose a risk to the safety of children. The applicant ought to be granted a Working With Children’s Check Clearance”.

9. The review application is brought pursuant to Section 27(1) of the CP Act. The applicant applied for a WWCCC on 14 January 2019. The applicant submits that the WWCCC is required, so that he may continue his role as a voluntary firefighter with the Rural Fire Service.

10. On 29 November 2021, following the risk assessment, the respondent refused the application for a WWCCC under Section 18(2) of the CP Act.

11. A person who is refused clearance may apply under Section 27(1) of the CP Act for a review of the decision. In this case, the applicant has done so and it is that application that is before the Tribunal.

Preliminary issues

12. The Tribunal orders 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.

Jurisdiction

13. There is no dispute that the Tribunal has jurisdiction to hear the matter.

The Hearing

14. The hearing was conducted by video conferencing on 26 September 2022.

Written evidence

15. The documents submitted by each party are set out at the end of these Reasons for Decision

Legislative framework and relevant principles

16. 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.

17. 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.

18. 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.

19. 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.

20. Section 18(2) of the CP Act provides that the respondent must grant a WWCCC to a person who is a subject to a risk assessment, unless the respondent is satisfied that the person “poses a risk to the safety of children” pursuant to Section 18(2) of the Act.

21. Section 15(4A) of the CP Act provides that the respondent may determine that the applicant does not pose a risk to the safety of children only if it is satisfied that:

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

2. it is in the public interest to make the determination.

22. Part 4 of the Act deals with reviews and appeals. 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 of the analysis is to achieve that protective function:

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.

23. The Tribunal must determine the correct and preferable decision, having regard to the material before it.

24. The Tribunal may affirm or vary the decision or may set aside the original decision and make a new decision or remit the matter to the respondent for reconsideration (Administrative Decisions Review Act 1997, Section 63(3)).

25. Neither applicant nor the respondent bears any onus of proof in this application. However, the applicant must fully disclose to the Tribunal any relevant matters.

26. The task of the Tribunal is to determine whether, applying a test under Section 18(2) of the Act and on the material before it, it is satisfied that the applicant poses a risk to the safety of children. The Tribunal must grant the applicant a WWCCC unless it is satisfied that he poses such a risk.

27. “Risk to the safety of children” is defined in Section 5B of the Act as a “real and appreciable risk”.

28. The meaning of the word 'risk' was also 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". ...

29. These observations of Young CJ (in Equity) had 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.

30. This is not limited to the consideration of whether the applicant would pose a risk to children only if he were engaged in child related work.

31. The Tribunal must also have regard to the matters set out in Section 30(1) of the Act, all of which are mandatory relevant considerations, unless inapplicable to the particular case.

32. Section 30(1) of the Act provides:

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

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

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

(m) any other matters that the Children's Guardian considers necessary.

33. If the Tribunal is not satisfied that the applicant poses a risk to the safety of children, having regard to the factors in Section 30(1), it is then required to consider the factors set out in Section 30(1A), which provides that the Tribunal cannot make an order which has the effect of enabling a person to work with children unless it is satisfied that:

1. a reasonable person would allow his/or child to have direct contact with the applicant which is not directly supervised by another person while the applicant was engaged in any child related work (the reasonable person test); and

2. it is in the public’s interests to make the order (the public interest test).

Reasonable person test

34. The reasonable person test is subjective and the “reasonable person” is taken to have knowledge of the disqualifying offence, the surrounding circumstances of the offence, the applicant’s criminal history, the length of time since the offence and any expert assessment made of him/her.

35. In VQB v Secretary of the Department of Justice [2013] VCAT 78 at 36, it was held that the reasonable person would not “approach the task with a closed mind thinking that once a person has offended, he/she can never be redeemed” but would also not “put aside all scepticism and reasonable caution in some overoptimistic attempt to facilitate rehabilitation”.

The public interest test

36. The public interest test requires that the Tribunal, before making an order allowing an applicant to work with children, must find that it is in the public interest to make such an order.

37. In McKinnon v Department of Treasury (2005) FCAFC142@8-10 the full Federal Court said:

The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content and will depend on each particular set of circumstances.

38. In this context, the public interest is to be interpreted in the light of the paramount consideration of Section 4 of the Act, namely the safety, welfare and well-being of children.

39. The Court of Appeal in Victoria explained in the Director of Public Prosecutions v Smith [1991] 1VR63 that:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

Respondent’s Submissions

40. Because the respondent has refused to grant a WWCCC, which is the action that prompted the application for administrative review, we decided that is more practical to set out the respondent’s submissions first on this occasion. This is because it provides a context to the applicant’s rebuttal of those submissions.

41. Ms Zheng of Counsel appeared on behalf of the respondent and made oral submissions, which were consistent with those set out in the respondent’s written outline of submissions submitted to the Tribunal.

42. In summary, the respondent asked the Tribunal to affirm the refusal decision, because it believes that the applicant poses a real and appreciable risk to the safety of children. It also submitted that the Tribunal could not be satisfied on the evidence available, that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child related work, nor that it is in the public interest to grant the applicant a clearance.

43. The respondent noted that the applicant has two biological children: “the child”, who was born in 2009, and “the son”, who was born in 2017. The child is the daughter of the applicant’s former partner, Ms SD. The son is the son of a subsequent partner, Ms RA. Neither child is currently in the applicant’s care.

44. In 2014 at the time of the trigger offence, the applicant had sole care of the child, who, at that time had contact visits with her mother. They lived with the applicant’s then partner, Ms CK, and her three sons: Master JS, Master JaS; and Master JK. The applicant and Ms CK separated in 2014. From mid-2016 to mid-2018, the applicant lived with Ms RA and her other children, SA and JA. During that period of cohabitation, the son was born.

45. Since then, the applicant has lived with another partner, who is his agent in relation to this matter, and her four children. That domestic relationship has also since ended. The applicant’s current partner is Ms MT, who also has three children. However, the applicant does not reside with them.

46. In relation to the trigger offence, the respondent referred us to a Police record, dated 10 or 11 January 2014. This recorded that the child was taken to a hairdresser by her mother, during a contact visit. The notes record that the child sat in the chair in the hair studio. When the hairdresser began cutting her hair, he noticed two bruises on the child’s right thigh, which he described as being purplish in colour, about 10 centimetres in length and about one centimetre in width.

47. It is recorded that the hairdresser asked the child what had happened. The notes record that the child replied: “Daddy hit me with a stockwhip”. The hairdresser said: “Gee, I bet that hurt”. The child is reported to have said: “Yep, I cried and jumped around before sitting down”.

48. At about 12:30 pm that day, the hairdresser attended Yass Police Station to report this incident.

49. At 1:30 pm, Ms SD and the child herself attended Yass Police Station to make the same report. According to SD’s Affidavit, dated 15 January 2014, the child was interviewed on her own at the Yass Police Station. This Affidavit was made in support of her application in the Federal Circuit Court of Australia for the child to remain in her care, rather than being returned to the applicant’s care, pending further investigation by the Police and Department of Community Services.

50. The Police then applied for an urgent Apprehended Domestic Violence Order (ADVO) which was served on the applicant at about 2:00 pm that day, when the applicant attended to pick up the child from Ms SD. The Police informed the applicant that they had advised the mother to keep custody of the child, because they held concerns for her safety, due to the injuries on her thigh.

51. On 12 January 2014, the child was again interviewed by Police, this time accompanied by her mother and a support person. During the interview, the child disclosed that, approximately a week earlier, she had been sitting at the dinner table with her stepsiblings when she refused to eat her meal. She reported that the applicant had entered the kitchen with a long stockwhip and had struck her once around the right hip and thigh area with the stockwhip. The child reported that applicant then placed her in a cold shower.

52. The responded asked the Tribunal to note that the Police Information Summary recorded the following:

Police questioned the child about how often the applicant hits her. She put both her hands up and said: “Heaps”. She said: “He flicked me on the ear because I didn’t ask to go to Codies (sic) house” and “He put soap in my mouth the other day at Leesha’s house and it was yuck (sic)”.

53. On the following day, the child was examined by Dr Azra at Yass Medical Centre who expressed her opinion that the marks on the child were consistent with a stockwhip or some kind of stick.

54. The respondent noted that the Department of Communities and Justice (DCJ) records reveal that a mandatory report was made on 17 January 2014. The records show “Reporters stated they observed upon examination bruising to (the child’s) upper right thigh about three to four inches long that was still red in colour” and “the child told reporter her father frequently smacks her”.

55. The respondent submitted that we should attach significant weight to this report, because it is a contemporaneous document that* records the observations of an interested third party fulfilling a statutory role.

56. The respondent submitted that this report corroborates the evidence of a bruise and noted that it was still red in colour. The respondent submits that in view of the fact that the (child) had been in her mother’s custody since 10 or 11 January 2014, we could infer that the bruise was significant. The respondent also submitted that the child made a further disclosure about being smacked by the applicant.

57. The respondent pointed to the Police Information which suggests that the applicant refused to be interviewed when approached by the Police on 13 January 2014.

53. On 15 January 2014, the applicant was charged with “assault occasioning actual bodily harm (DV)”. A further mandatory report was made about the child on that date by a Police Officer who had attended Parkes Local Court that morning. The report records:

The caller said that in the Affidavit for the FLC (the applicant) said that he didn’t hit the child with a stockwhip but that he tapped her on the bottom with a belt on 4/1/14 due to fire in Parkes and he was trying to get her out of the house. And (the applicant) said that the child might have thought it was a stockwhip and he didn’t know she had any bruises.

59. The report also noted that the AVO that the Police had taken out against the applicant had been discharged and that the applicant was now seeking a recovery order to have the child returned to his care.

60. The applicant entered a plea of not guilty at Parkes Local Court on 20 January 2014.

61. The respondent submitted that it obtained a field assessment carried out by the DCJ (then known as DoCS), dated 10 March 2014, which attaches a report by the “JIRT Unit” (now known as the Joint Child Protection Response Program) or JCPRP.

62. Next to an entry, dated 2 March 2014, the JIRT report noted that the child has made a disclosure about “significant physical violence” at the hands of “the applicant” that had been corroborated by interviews with the other children in the household “who themselves made admissions to being physically harmed by” the applicant. This report indicates that the child was removed from the applicant’s care by 2 March 2014.

63. The JIRT report also noted that the child was, at that time, under the parental responsibility of the Minister. The respondent asked us to accept that the field assessment carried out for the children who resided with the child at the relevant time provided corroboration for (the child’s) disclosures.

64. The respondent referred us to a document, at page 92 of Exhibit 1 (the documents produced by the respondent in accordance with Section 58 of the Administrative Decisions Review Act 1997 (the ADR Act)), which stated:

Subsequent interviews of (JS) indicated that this abuse is a regular occurrence with physical violence being the only form of discipline used in the family home (JS and JaS) further to (the child’s) disclosure…disclose that they are the subject to excessive discipline and that the only other adult in the home does not act protectively to stop…violence from occurring.

65. The same document records that the applicant denied that the bruising seen by the hairdresser and other authorities was caused by his using a stockwhip to chastise the child. Instead, the applicant stated during that interview with Case Workers that he did not know how the child had obtained the bruising. He “hypothesised that a motorcycle may have fallen on top of the child”.

66. The respondent noted that ambiguity remains about whether the charge was dismissed or withdrawn. It submits that, in the absence of information regarding the circumstances in which the trigger offence was either dismissed or withdrawn, we should give weight to the fact that, by June 2014, the child had been removed from the applicant’s care.

67. The child remained in the care of the Minister until final orders were made by the Children’s Court on 10 March 2015, allocating all aspects of parental responsibility for the child to her mother. The applicant was allowed unsupervised contact, initially between 10:00 am and 4:00 pm. After 8 months, some overnight contact was permitted, subject to review by a Counsellor. The orders specifically restrained both parents from physically disciplining the child.

68. The respondent also submits that the child’s allegations of physical violence at the hands of the applicant are consistent with information recorded in mandatory reports about the three other children who lived with the applicant at the relevant time. In particular, it referred to a mandatory report made on 17 April 2015, which was after the child was removed from the applicant’s care, and after he had been charged with her assault, in relation to a child to whom we shall refer as JAS. It records that the applicant spoke to a person by the name Di Healey and requested clarification about the meaning of the orders which required him to refrain from the use of physical punishment. It is recorded that he asked whether he could “tap” JaS if he were misbehaving.

69. The respondent asked the Tribunal to take account of the fact that the applicant appears to have provided at least two different explanations for why the child had bruises, namely the explanation that he used a belt to get the child out of the house in the light of an impending bushfire, and the explanation that the bruise was caused by a motorcycle. The first explanation was provided on 15 January 2014 and the latter on 6 February 2014, approximately three weeks later.

70. The respondent also noted that a third version of the events was provided in the applicant’s statement, dated 16 February 2021, where he stated that the incident occurred during the bushfire on 4 January 2014 when the child fell off a motorbike she was playing on.

71. The respondent submitted that we could not accept the applicant’s explanation as credible.

72. The respondent submits that we should find that the alleged trigger events occurred on the balance of probabilities, based on extensive contemporaneous documentary evidence, including reports made to the DCJ and the findings of that department having investigated those reports, which the respondent submits significantly outweighs the probative value of the applicant’s inconsistent explanations for how the child sustained her bruises.

73. In the alternative, the respondent submits that if the Tribunal is not so satisfied, the Tribunal could not be satisfied that the allegation is groundless and should find that there is sufficient evidence to support a finding to support finding that it is possible that the trigger events occurred and that that possibility represents a real and appreciable risk to the safety of children, in circumstances where the trigger offence was a serious physical assault of a very young child in the applicant’s care and custody, and in circumstances where the evidence of the applicant’s conduct since the alleged trigger offence does not provide clear evidence that the likelihood of risk has reduced.

74. The respondent referred to the applicant’s other criminal history. It noted the following:

75. On 3 September 2014, the applicant was charged with the offence of “behave in offensive manner in/near public place/school” for which he received a fine;

76. The Police Event E56018462 reveal that the applicant was involved in a street fight with another person known to him;

77. The Police Report indicates that the applicant and the other person were partners of two sisters and were arguing about moving furniture;

78. It is recorded that the other man “crashed tackled” the applicant and scratched him in the eye and that the applicant allegedly grabbed his assailant by the testicles. However, they gave conflicting statements as to which occurred first;

79. Both parties were issued with a criminal infringement notice for offensive conduct.

80. The applicant’s criminal record otherwise consists of the following offences:

81. In June 2009, he was charged with drive with middle range PCA, for which he received a 12 month Section 10 bond and was required to attend driver education program;

82. In July 2016, the applicant was charged with drive with high range PCA first offence for which he received a 12 month Section 9 bond and was disqualified for six months and was required to participate in an alcohol program for 24 months. As a result of a severity appeal, the order was varied to a 12 month Section 10 bond;

83. As at 3 August 2021, the applicant was recorded as a defendant in five Apprehended Violence Orders (AVOs) between 2014 and 2015. They are all now inactive;

84. As at 3 August 2021, the applicant was recorded as the person in need of protection in four AVOs between 2016 and 2021, only one of which remains active until 6 June 2023.

85. The respondent concedes that there are some factors which weigh in the applicant’s favour, such as the statements from his community that attest to his positive character and engagement with children and the fact that he participates in community volunteering.

86. The respondent also contends that a reasonable person (with knowledge and nature of the allegations made against the applicant) not limited to the trigger offence, but also including the other child protection concerns raised about all the children in his care, would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person whilst the applicant was engaged in child related work.

87. The respondent submits that the concerns raised in the DCJ reports indicate a persistent pattern, over a number of years, of the applicant resorting to inappropriate and physically violent methods in response to the behaviour of young children, who are in a vulnerable position.

88. The respondent also contended that there are serious public interest considerations against allowing someone such as the applicant to have unsupervised access to other children as a result of being issued a clearance, and that the public interest to protect the safety, welfare and well-being of children takes priority over any private interests of the applicant in terms of his desire to engage in volunteering with the RFS.

89. The respondent asks the Tribunal to affirm the decision to refuse the applicant a WWCCC.

Applicant’s submissions

90. The applicant conceded that he was charged, on 17 June 2014, for having struck the child on the leg with a stockwhip. He denies that he did this. In the written submission prepared by his agent, the applicant denied ever owning a stockwhip.

91. The applicant conceded that the allegations are serious in nature but asserts that they are “groundless” and were the result of a malicious attempt by his former partner to prevent him from having access to his daughter.

92. The applicant gave evidence by video with the assistance of Ms Hope Blazeley, who was granted leave to assist him as his agent. The applicant submitted that this was necessary, because he experiences literacy difficulties.

93. The applicant stated that he applied for a WWCCC, because it is a requirement of his role as a volunteer with the Rural Fire Service (RFS). He said a WWCCC was not previously required. However, the RFS has now amended its policy requirements so that all volunteers and paid members are required to have a WWCCC.

94. The applicant gave evidence that he is Aboriginal and is 39 years old. He derives great pleasure from helping in his community, particularly as a volunteer with the RFS. He submitted that without a WWCCC, he would be prevented from fulfilling this important community service.

95. The applicant concedes that the trigger offence arose because his daughter the child obtained a bruise whilst in his care.

96. The applicant submitted that, despite the fact that he was charged with the trigger offence, he is a man of good character and does not present any risk to the safety of children.

97. The applicant agreed that the Tribunal must determine whether he poses a risk to the safety of children, taking into account his criminal record, the charges laid against him, domestic disputes and his work. He asked the Tribunal to consider the matter of CXZ v Children’s Guardian [2018] NSW CATAD36, in which the Tribunal found in favour of an applicant who pleaded guilty to abuse against a Police Officer and possession of drugs.

98. The applicant’s agent submitted that the applicant had had difficulty explaining the circumstances in which the trigger occurred, due to his illiteracy and communication difficulties. He referred to two photographs in the tender bundle. It was submitted that one depicted the bruise on the child’s leg and the other a part of a motorbike, which he alleges fell on to her leg and caused the bruise.

99. On behalf of the applicant, his agent submitted that at the time this occurred there was a fire in the village in which the applicant lived. At that time, he had care of his child and lived with his then partner, Ms CK, and her three sons. When he learnt that the fire was approaching the village, the applicant, as a volunteer firefighter, had a duty to assist the fire crews. He also wanted to protect his family.

100. The agent submitted that the applicant was aware that it would not be safe for anyone to remain in the house in which he lived. The agent described the applicant’s frame of mind at that time as “frantic”. He tried to move everyone out of the house and to safety.

101. During this process, the applicant noted that the child was hiding under the bed and refusing to come out because she did not want to leave her toys.

102. The applicant submitted that, having failed to persuade the child to come out from under the bed, he grabbed a belt and smacked it to the floor to obtain the child’s attention. He was able to remove the child from under the bed and get her to leave the house.

103. Once the child was safe with other members of the extended family, the applicant then went to assist other firefighters defending the village. The applicant submitted that, during this time, the child and her stepbrothers were “amusing themselves by playing with the motorbikes that were nearby”. He asserts that one of the motorbikes fell onto the child’s leg and caused the leg to bruise. He submits that the Tribunal ought to find that the imprint of the bruise is commensurate with the part of the motorbike identified as having made contact with the child’s leg.

104. The agent noted that the applicant has “on multiple times given explanation of what happened and due to the traumatic circumstances surrounding the event, it is no wonder the confusion (sic)”.

105. The applicant concedes that he has other criminal history which includes being charged “behave in offensive manner in/near public place/school”. The applicant states that he was acting in self-defence and that both parties involved in the conflict were fined in relation to the matter.

106. The applicant also concedes that he has been charged with drink driving, however, maintains that the most recent offence was six years ago.

107. The applicant’s submissions reveal that he has been the subject of an Apprehended Violence Order (AVO) as the person needing protection.

108. The applicant denies that he abuses alcohol. He submitted a pathology report, dated 3 February 2022, from a medical practitioner to say that there is no evidence of alcohol abuse.

109. The applicant referred to the respondent’s concern that he used a “lid” on the cot in which his baby son was sleeping. He concedes that it had a lid but maintains that this was a “wooden frame which held a fly screen in it to protect against the mozzies”. He said it did not have a lock and was not able to be locked.

110. The applicant denied ever leaving his baby son unattended in his highchair.

111. The applicant denied that the child ever disclosed to him that she had been sexually assaulted by her stepbrother. Therefore, he had no reason to believe that something was seriously amiss.

112. The applicant admitted that he used smacking as a form of punishment. However, he said that this only occurred “if necessary” and, in the case of his stepchildren, with their mother’s permission.

113. Having now completed a parenting course, the applicant acknowledges that the way he was parented is different to what is accepted in “modern day parenting”. He maintains that this has caused him to amend his parenting style.

114. The applicant asked the Tribunal to accept the information contained in the character references. The agent herself told the Tribunal that she initially had reservations about leaving her children unattended with the applicant but as she has got to know him better, even though she is aware of the trigger offence, she has no hesitation in allowing her children to have access to the applicant in an unsupervised role. She said that she has left all four of her children unsupervised with the applicant when she went to work. This included one of her children who has a disability , which sometimes causes his behaviour to devolve into violence. She said that the applicant was very protective of her children and displayed a parenting style which supported her disabled child.

Tribunal’s consideration

115. Our substantive role is to assess risk; specifically, whether the applicant poses a risk to the safety and well-being of children and young people.

116. We note CXZ v Children’s Guardian (ibid), referred to by the applicant, is of little assistance to us, because it can be distinguished on the facts and the nature of the charges. That matter did not involve charges of harm to children.

117. We have based our consideration on all of the evidence provided by the parties in documentary form and the oral testimony provided at the hearing. We have also analysed the circumstances of the trigger offence and the applicant’s subsequent conduct.

118. A primary consideration for the Tribunal is the likelihood of the trigger offence having occurred as alleged. It is not necessary for the Tribunal to conclusively find that the offence occurred. It is sufficient for us to determine whether it is possible that it occurred, which would give rise to the possibility of risk.

119. The applicant concedes that the allegations made against him are not groundless. The applicant has provided a number of inconsistent explanations for the bruising, which he does not deny was present on his daughter’s leg.

120. On 15 January 2014, the applicant told the Police that he did not hit his daughter with a stockwhip but that he had tapped her on the bottom with a belt, because he was trying to get her out of the house when the fire came through his region. He hypothesised that the child may have thought that it was a stockwhip. He said he did not know she had any bruises.

121. On 6 February 2014, only three weeks later, he told the Field Assessor conducting a safety assessment, again that he denied using a stockwhip to chastise the child and did not know how she obtained the bruise. He hypothesised that a motorcycle may have fallen on top of the child.

122. In his statutory declaration, dated 16 February 2021, he provided a third version of events. He claimed that the bruising occurred during a bushfire when the child fell off her motorbike.

123. During his hearing, he told the Tribunal that the child was hiding under a bed and that he was anxious to get her out of the house. He used a belt to hit the ground next to the floor where she was hiding under a bed. He managed to extract her from the house. She subsequently fell off a motorcycle, upon which she was playing.

124. During the course of the hearing, he also told the Tribunal that he believes the child was coached by her mother to make the allegations.

125. In his evidence, the applicant told the Tribunal that he “strongly disagrees” with what the Police and the Field Assessor had recorded. He said that he told them at the time that the injuries had been caused by a motorbike and that he had shown them the photograph. He told the Tribunal that he had seen the bruising and had taken photographs of the bruising and the motorbike on that date. This is inconsistent with his earlier statement that he was unaware of the bruising at the time. He could not explain why none of the records had recorded this account of events.

126. The photographs provided by the applicant which are said to depict the bruising on the child’s leg and the motorcycle that he says was involved in the incident, are not supported by any expert evidence. The Tribunal cannot infer anything from those photographs.

127. When the applicant was asked, in cross-examination, why he had attested in his Affidavit to the effect that he “had tapped the child on the bottom with a belt” he responded that he did not remember, because it was “so long ago”.

115. Despite being unable to adequately explain the inconsistencies in his accounts of events, the applicant maintained that the allegation of the child and the other children levelled against him over the years were false.

116. The applicant did not deny using corporal punishment on his children. In his oral testimony, he said that he had only ever used the back of his hand and that he had “never used implements”. He said that he only used corporal punishment “when necessary”.

117. In cross-examination, he was asked when it might be necessary to hit a four year old. He responded: “When they put food from one end of the house to another”. He maintained that this occurred only rarely, and only ever with the mother’s permission.

118. The applicant had attested to the fact that he never owned a stockwhip in his Affidavit. However, during the course of cross-examination, he conceded that he does own a stockwhip. He did not provide any adequate explanation for the inconsistencies in his evidence in relation to any of the issues highlighted above.

119. There were other inconsistencies in the applicant’s evidence. However, his agent submitted that the inconsistency could be explained by the fact that the applicant is illiterate and has “communication difficulties”.

120. We did not perceive any apparent difficulty on the part of the applicant, during the course of the hearing. We formed the view that he was able to understand and answer the questions that were put to him in cross-examination and by the Tribunal. We are not persuaded that any communication difficulty adequately explains the fact that the applicant has provided a number of inconsistent versions of events.

121. This adversely affects the weight that the Tribunal can attach to the applicant’s evidence. The Tribunal cannot be satisfied, on the balance of probabilities, that the applicant’s evidence is reliable.

122. When weighed against contemporaneous reports from apparently impartial agencies, and the Police, the Tribunal prefers the evidence of the relevant agencies and is persuaded that the trigger offence is likely to have occurred. It is certainly more than possible that it did so.

123. There is no apparent reason why the individuals who reported to DCJ or the Police would provide a false account. We note that the reports from other children, who were not living with the applicant, have provided accounts to DCJ which are consistent with the child’s account of events. The probability of a four year old child making a false disclosure is slight, in our view.

124. The respondent submitted that whilst there is no evidence that the applicant has a health problem because of alcohol use, the Tribunal ought to be persuaded that alcohol use has been a factor in the applicant’s inability to control his behaviour and his tendency to resort to corporal punishment in the past. The respondent submitted that the overall picture presented to the Tribunal is that the applicant is someone who has elevated responses to stress.

125. The applicant denied this. The Tribunal cannot infer anything from a pathology report tendered on behalf of the applicant, dated 3 February 2022, which he asserts supports a finding that he does not abuse alcohol. There is no reason for the Tribunal to doubt the veracity or accuracy of that report in terms of the sample that was taken on 3 February 2022. However, it is of very little assistance to the Tribunal in isolation. In the absence of any other evidence, the Tribunal cannot infer anything about the applicant’s drinking habits from that one report.

126. Because we are satisfied, on the balance of probabilities, that the trigger offence occurred, we are satisfied that the applicant presents a real and appreciable risk to the safety and well-being of children and young persons.

Section 30 (1)

140. 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 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.

141. The alleged conduct involves the physical abuse of a child in the applicant’s care.

142. The Tribunal finds that the trigger offence is objectively very serious.

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

143. 8 years has passed since the conduct allegedly occurred in January 2014.

144. Since the trigger offence, the applicant has not been the subject of further allegations, charges or convictions that similar in nature to this trigger offence.

145. However, he has been the subject of allegations, charges and convictions for violent conduct and has been the subject of DCJ investigations pertaining to alleged violent behaviours towards his own children. This is not in dispute.

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

146. The applicant was 31 years when the trigger offence 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.

147. The victim was a very young child, who was four years of age and, due to her age and disrupted family environment, was also extremely vulnerable.

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

148. The difference in age between the applicant and the victim was 27 years.

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

149. The applicant was aware that she was a child, because she is the applicant’s biological daughter.

(g) The person's present age.

150. The applicant is currently 39 years old.

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

151. The applicant’s criminal history is limited. In addition to the trigger offence, the applicant’s criminal history involves a charge of “behave in offensive in/near public place/school” in 2014 and two traffic offences (2009 and 2016).

152. Two of the three offences occurred after the trigger offence.

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

153. The respondent asked the Tribunal to note that whilst 8 years has passed since the trigger offence and the applicant has participated in an anger management program (2018) and a parenting course (2014), and the fact that his two most recent partners have attested to him having a positive relationship with the children; the factors suggesting a reduction in the risk of repetition, must be balanced against the evidence that the applicant has not demonstrated insight into the trigger offence and how he would mitigate risk to children.

154. In particular, the respondent noted that the applicant maintains that he did not commit the assault which is the subject of the trigger offence and does not appear to have taken any responsibility for the circumstances in which the child was removed from his care.

155. The respondent also notes that the applicant’s son has also been removed from his care, and that the applicant has maintained that he was “set up” by his two former partners who have contrived to portray him as a person or poor character.

156. The respondent, therefore, submits that the factors mitigating the likelihood of repetition are offset by his lack of insight and the fact that he has not had direct care of his children since the alleged conduct occurred.

157. The Tribunal is satisfied that physical violence towards children places them at risk of physical and sociological and emotional harm. Any repetition of such behaviour would have a severely negative impact on children.

158. The number of inconsistent version of events suggests to us that the applicant does not have insight into the seriousness of his conduct. Furthermore, his oral testimony to the effect that corporal punishment is justified against a child of the age of four, in circumstances where she “puts food from one end of the house to the another” suggests that he still does not, as at the date of hearing, appreciate the risk posed to children of corporal punishment.

159. Another factor which speaks to the applicant’s lack of insight into the seriousness of his conduct pertains to the evidence that he admitted to using smacking as a disciplinary measure. However, he was unclear about the difference between “smacking” and “tapping”, and despite having been instructed to desist from using corporal punishment, did not do so.

160. His evidence that he may have sought the mother’s consent before using corporal punishment does not assist his argument.

161. The Tribunal also considered evidence, which is unrelated to the trigger offence, but still involves the child, pertaining to an alleged disclosure of sexual assault.

162. The applicant persistently denied that any of the children in his care were harmed. He denied that the child disclosed that she had been sexually abused by one of her step-siblings, although he had formed the conclusion that something was amiss. There is no evidence that he took any measures to protect the child in those circumstances. In fact, it appears that assistance was sought for the alleged perpetrator.

163. All of these factors combined lead the Tribunal to the view that the applicant does not have adequate insight into his conduct in terms of the protection of children.

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

164. The applicant described the allegations as “a vexatious charge” made by his ex-partner so that she could gain sole custody of their daughter. He also asserted that the only reason that he does not have access to his son is because his subsequent partner denied him access on the basis of that vexatious charge.

165. He has described himself as being “vulnerable to women” who have used their children as “leverage” against him. He has also provided an alternative explanation for the alleged conduct, which was that the child was “coached” by her mother.

166. The respondent submits that the Tribunal could not be persuaded by these explanations and that the Tribunal should place very little weight on the character references submitted by the applicant, because none of the statements, apart from that of Ms Blazeley, addresses the conduct which is the subject of the trigger offence and it is not apparent that any of the character referees are aware of the alleged conduct.

167. The Tribunal has considered this and the other references provided.

168. With the exception of Ms Blazeley, who acted as the applicant’s agent in this matter, none of the character references submitted by the applicant made any reference to the trigger offence. They are, therefore, of little probative value to the Tribunal.

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

169. Not applicable in this matter.

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

170. The Children’s Guardian submits that we should take into account the material from DCJ, which points to concerns having been raised about the applicant’s conduct in relation to the child and other children of his household at various times over an extended period.

171. It submits that the following DCJ records exist, in addition to the trigger offence:

1. In 2011 or 2012, there was a domestic violence incident, where the applicant locked (the child’s) mother into the home and had the child with him. He was screaming and yelling. Police were able to get (the child’s) mother and the child out of the home;

2. On 19 March 2013, it was alleged the applicant dealt with (the child’s) tantrums inappropriately, by locking her in a car, putting his fingers down her mouth and smacking her very hard;

3. On 11 June 2018, a report raised concerns for the applicant’s ability to care for his son, due to his alleged consumption of alcohol. It also expressed concern that the son had a cot with a lockable lid and that the applicant smacked his son or left him unattended and failed to provide adequate food and amenities in the family home;

4. On 13 June 2018, it was reported that a child of the household had informed that the applicant “drinks too much” and his son would be left in his highchair unattended, when in the applicant’s care.

172. Furthermore, records exist concerning the applicant and two of his stepchildren, JS and JaS. Most significantly, it is reported that the child disclosed to her father that JS sexually assaulted her. However, it is reported that both the applicant and his former partner strongly believed that JS did not harm the child, despite acknowledging that ‘something inappropriate happened’. Help and support was sought for JS, not for the child.

173. JaS reported that the applicant smacked and punched him. The applicant stated that he had “tapped” JaS on his hand when the latter was misbehaving.

174. The remaining DCJ material raises concerns about physical harm alleged to have been caused by the applicant to his children and stepchildren by administering inappropriate physical discipline.

175. The respondent submitted that these reports raise concerns about the applicant’s ability to care even for his own biological children.

176. Having considered all of the above, the Tribunal finds that the applicant presents a risk to children.

Section 30 (1A) consideration and findings

177. Having made the finding that we have, we are not required to make any findings in relation to this section.

178. However, for the sake of completeness, we have considered the matters set out in section 30 1 (A), which requires that the making of the order be in the public interest.

(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:

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 any child-related work, and

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

179. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73, the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

180. In our view, a reasonable person acquainted with all of the evidence and submissions before the Tribunal, would apply an objective test in consideration of all the material.

181. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 8 years.

182. Ms Blazeley gave evidence that she, being aware of the trigger offence, nevertheless allowed her children to have unsupervised conduct with the applicant. Her evidence is uncontested, and we accept that this is the case. Nevertheless, that is insufficient, in our view to override our view that a reasonable person would, for the reasons set our above, find that the risk was sufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

183. We find that a reasonable person would not 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.

184. The Tribunal is also required to consider whether, pursuant to section 30 (1A) (b), it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

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

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

185. We are satisfied that the overarching public interest of protecting the safety or children outweighs the obvious public interest of allowing the applicant to continue with his undoubtedly worthy community work, in the RFS.

Conclusion

186. For the reasons set out above, we reach the following conclusion.

187. The evidence and material received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and well-being of children.

188. In our view, having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children.

189. It follows that the applicant’s application for review cannot succeed.

Orders

1. 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.

2. The decision of the Children’s Guardian dated 29 November 2021 is affirmed.

3. The application for review is dismissed

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Written Evidence

1. The applicant tendered the following evidence:

• Application, dated 16 December 2021;

• Submissions, dated 8 April 2022, including the statement of FGM; Vic George; and Richard Alfred Berry. The applicant’s statement includes:

1. two photographs of a bruise;

2. a number of character references provided on behalf of the applicant;

3. a pathology report for the applicant, dated 3 February 2022;

4. a supervised contact report in relation to supervised contact with the applicant’s daughter on 26 August 2014;

5. statutory declaration of the applicant and the applicant’s statement, dated 8 April 2022;

• Submissions, dated 20 April 2022;

• Submissions, dated 27 April 2022, including statements of Roger Helm; Hope Blazeley; and Melanie Trudgett;

• Submissions, dated 10 May 2022, including statement of Frank Vanopynen;

• Submission dated 15 September 2022.

2. The respondent tendered the following evidence:

• Section 58 documents (Exhibit 1);

• Documents produced by Parkes Local Court on 4 April 2022;

• Documents produced by the Commissioner of Police, NSW Police Force on 7 April 2022;

• Material filed by the applicant in April 2022;

• Consent orders, dated 12 April 2022;

• Submissions, dated 12 May 2022;

• Submissions, dated 1 September 2022

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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: 20 December 2022