BJB v NSW Office of the Children's Guardian

NCAT Administrative and Equal Opportunity|2014-09-02

Introduction 1In this matter the Tribunal refused and dismissed an application for a stay order by reasons for decision published 1 August 2014: BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111 ("the interim decision"). The matter was adjourned for hearing to 1 and 2 September 2014. The hearing occurred on those 2 days with oral evidence in addition to the documentary material filed in support of both parties' cases. 2At the commencement of the hearing an order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting 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. 3The applicant who is referred to in these proceedings by the letters "BJB" filed on 4 June 2014 an application for review of a decision by the Children's Guardian. The review is pursuant to section 27 of the Child Protection (Working with Children) Act 2012 ("the Act"). 4The applicant applied for a Working with Children check clearance from the respondent on 20 November 2013 which resulted in a review of records which triggered a risk assessment under the Act: see Part 3, Division 3 of the Act. 5That assessment resulted in an interim bar on 20 March 2014 which made it an offence for the applicant to work in child-related roles, whether paid or voluntary. The applicant was notified on 17 April 2014 that the respondent proposed to refuse his application and requested any further information the applicant wished to provide in further support of the application by 15 May 2014. 6The respondent refused the Working with Children Check clearance on 2 June 2014. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review. 7The applicant filed an application for a stay of the decision with his application for review on 4 June 2014 under section 27 of the Act. The stay application was listed for hearing on 19 June 2014 before a differently constituted Tribunal. That stay was not able to be determined because at that stage no evidence had been filed by either party. 8This matter was originally listed for hearing on 17 July 2014. The day before the scheduled hearing, the Solicitors for the applicant who had only been recently instructed by the applicant, sent a letter to the Tribunal Registry advising that the applicant sought an adjournment of the final hearing. That adjournment application was not opposed and because the witness required for cross examination from the Office of the Children's Guardian was unable to attend on that day it was adjourned. The stay application has been determined. 9The issue before the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997.

The evidence relied upon in the hearing 10The applicant relied upon the following documentary material: (1)Affidavit by BJB filed 27 August 2014; (2)Affidavit by the wife of BJB filed 27 August 2014; (3)Letter of reference by the present Vice President of the Australian Foster Care Association filed 27 August 2014; (4)A bundle of documents filed by the applicant on 2 July 2014; (5)A letter dated 30 August 2014 from a counsellor for BJB who advised she required a subpoena in order to attend to give evidence (that was issued and the witness gave oral evidence); (6)Letters and references from Dr Pusic psychiatrist dated 23 March 2009, 10 January 2014, and 26 June 2014 concerning his treatment of BJB; (7)Reports from Dr Christopher Lennings, psychologist concerning risk assessment of BJB dated 14 November 2008, 2 December 2008, and 1 August 2014; (8)Report by the counsellor for BJB dated September 2009 and certificate dated 26 August 2009 from 'Enough is Enough' concerning the applicant's attendance at a stress and anger management course of 4 individual sessions and 1 group workshop. 11The respondent relied upon the following documentary material: (1)A bundle of documents compiled by the respondent including the reports and correspondence prepared by the respondent together with the material collected by the respondent pursuant to section 31 of the Act; (2)A chronology prepared by counsel for the respondent; (3)Selected tagged documents from the material produced by St John of God Hospital; (4)Selected tagged documents from the file produced by "Enough is Enough"; (5)Respondent's Written Outline of Submissions dated 2 September 2014. 12The tribunal heard oral evidence and cross-examination from the applicant, his wife, the Vice President of the Australian Foster Care Association, Dr Pusic, Dr Lennings, and the counsellor for BJB from "Enough is Enough". 13The only witness cross-examined for the respondent was Ms Crawcour who provided the recommendations contained in her reports based upon the material she had received and reviewed in relation to BJB. 14The Tribunal was also assisted by oral submissions from the representatives of the parties after the evidence had completed. 15A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.

The Relevant Legal Principles 16The Act came into force on 15 June 2013. 17The applicant requires a Working with Children Check clearance because he is an authorised carer with his wife for a child under the age of 18 years pursuant to the Children and Young Persons (Care and Protection) Act 1998, therefore engaging in child-related work as defined in section 6 of the Act. A worker must not engage in child-related work unless he holds such a clearance: section 8 of the Act. The applicant cannot continue as and cannot reside with an authorised carer without a clearance: section 10 of the Act. 18The objects of the Act are set out in section 3 which provides: "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." 19The paramount principle to be applied in decisions under the Act is contained in section 4 which provides: "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." 20"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years." 21The matters referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian are those matters referred to in clause 1 (6) and clause 2 (a) of Schedule 1. As referred to in the interim decision in this matter, either one of these matters is sufficient to trigger a risk assessment requirement under section 15 (1) of the Act. This is because section 14 of the Act requires a risk assessment if any of the matters specified in Schedule 1 of the Act apply to the person. 22Clause 1 (6) of Schedule 1 of the Act provides: "A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children." 23Clause 2 (a) of Schedule 1 of the Act provides: "Findings of misconduct involving children A person has been the subject of a finding by a reporting body that the person engaged in the following conduct: (a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child, (b) any serious physical assault of a child." 24The current hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act. 25Pursuant to section 27 (4) of the Act "the applicant must fully disclose to the Tribunal any matters relevant to the application." 26The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Child Protection (Working with Children) Act 2012: section 36 of the CAT Act. 27The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the CAT Act. 28Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 29The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the CAT Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the CAT Act. 30It is also relevant to observe that conditions of authorised care may be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012. The applicant and his wife provide authorised care and proceedings in 2009 in the then Administrative Decisions Tribunal pursuant to section 245 of the Children and Young Persons (Care and Protection) Act 1998 restored their status as authorised carers subject to some undertakings. If the applicant is not complying or does not comply in the future with those undertakings, the Department of Family and Community Services may take appropriate action. Those undertakings may have limited relevance to a decision under the Act to determine whether the applicant poses a risk to the safety of children. 31As was observed in the interim stay decision (at [110]), the jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 32In the helpful written submissions provided by the respondent's counsel Ms Hartstein, it was observed that there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997. 33The test to be applied when considering earlier predecessor legislation is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra). Both counsel submitted that it was the appropriate test in this application. 34It was also submitted by counsel for the respondent that the "unacceptable risk of harm" test is not applicable to decisions under section 27 of the Act. In the interim decision in this matter the Tribunal discussed this test of "unacceptable risk of harm" which is regularly applied in children's matters under the Family Law Act 1975 (Cth) and in the State jurisdiction in the Children's Court under the Children and Young Persons (Care and Protection) Act 1998. The wording and application of this test arises from the decision of the High Court in M v M [1988] HCA 68; 166 CLR 59, which was not cited in the judgments referred to as establishing the test of "a real and appreciable risk". 35It is therefore incumbent upon this Tribunal to apply the "real and appreciable risk" formulation and determine whether the applicant poses a risk in that sense to the safety of children as required by the Supreme Court precedents cited. 36An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act. 37The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted. These are matters to which the Tribunal adverted in the interim decision. 38The transitional provisions contained in Part 2 of Schedule 3 of the Act contains at clause 6 a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the provisions of the Act. 39The Children's Guardian submits in the written submissions provided to the Tribunal that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act. 40In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987. 41The second reading speech for the Bill which became the Act, by Mr Dominello, The Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant." 42In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk." 43As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate in the interpretation of the current Act. 44In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech also states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children." 45If "commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

The Issues 46The primary issue before the Tribunal in this application, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997. 47There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

Consideration of the Evidence 48The Tribunal has had the benefit of oral evidence in addition to the documentary evidence. The applicant and the other witnesses called in the hearing were able to be assessed by the Tribunal in relation to their documentary evidence by the answers they gave in questions put to them during the course of the hearing. 49The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it appears appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. That would fulfil the requirements of both sections, taking into account the nature of the administrative review. 50The Tribunal considered the evidence which was relied upon for the interim hearing in the previous judgment but is now required to decide the matter in accordance with the legislative requirements set out in the previous paragraphs when making the final determination. Therefore the Tribunal must consider each of the subparagraphs in section 30 of the Act and the evidence which relates to each of those considerations in order to arrive at a final determination. 51There will therefore be a necessity to repeat some of the evidence previously considered, supplemented by the evidence which was called at the final hearing in support of the respective cases of the applicant and the respondent. 52The evidence will be considered under each of the following subheadings. Each of the subheadings combine the considerations under section 15 and section 30 of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar 53The applicant is not a disqualified person under the Act. It is clear from the evidence that the applicant has been convicted of a number of offences which are relevant to the considerations before the Tribunal. 54The applicant has been convicted of offences involving violence and in particular offences of domestic and personal violence. The applicant did not raise objection to the material produced by the respondent referring to the incidents of violence and the criminal history of the applicant. Dr Lennings, the expert retained by the applicant to assess risk, has also referred to these offences. As previously noted, because the rules of evidence do not apply in these proceedings, the restrictions imposed by section 91 of the Evidence Act 1995 (NSW) do not apply: section 38 of the CAT Act. The Tribunal may therefore look at the surrounding circumstances in relation to the offences upon which the applicant has been convicted. 55The applicant was convicted of 2 counts of common assault under section 61 of the Crimes Act 1900 (NSW) on 26 August 2003 and sentenced to a section 9 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for 2 years under the supervision of the probation and parole service. This offence carries a maximum sentence of 2 years imprisonment. Given the sentence which was received by the applicant these offences could not be considered at the most serious end of the scale. However, there are a number of disturbing features about these offences. 56The facts in relation to the convictions of common assault referred to in the previous paragraph, are that the victims are the sister-in-law of the applicant and her sister. The applicant entered the first victim's home by kicking in the screen door and a wooden door. The applicant is alleged to have pushed her to the ground. He grabbed her by the hair and told her she was coming with him when she told him where the sister-in-law was located. The applicant dragged her to the front door and walked with her to where the sister-in-law was with her five children. The applicant grabbed the sister-in-law's phone from her and threw it at the video recorder causing the phone cord to disconnect from the handset and damaging the video recorder. The applicant admitted, to the police, kicking in the door but denied, at the time of his arrest, assaulting either victim. 57The applicant was convicted of two counts of assault occasioning actual harm under section 59 (1) of the Crimes Act 1900 (NSW) on 22 June 2004 and received a suspended sentence of 16 months imprisonment, upon entering a bond under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and supervision by the probation and parole service. The applicant was liable to be sentenced to a maximum of five years imprisonment in relation to each of these offences. 58The victim of the assault referred to in the previous paragraph is the applicant's wife. The applicant became angry after his wife returned from her solicitors and she gave him some papers. The wife received a telephone call from the Department of Community Services (as it then was). The applicant picked up a wooden tray and threw it at his wife's chest striking her and causing bruising. She went to her bedroom and the applicant followed her, subsequently punching her with a closed fist to the right side of her face. The wife is reported to have suffered headache, a lump to her head, bruising and swelling to her right forearm. At some point later in the day the applicant's wife returned home believing him to have left the home. The applicant kicked down the back door. The wife went to the neighbour's house to call the police. The applicant followed her and knocked on the neighbour's door. When the wife walked into the driveway of the neighbour's house to talk to the applicant, her mother reversed her car in the driveway calling for the wife to leave, at which time the applicant became angry. The wife walked back towards the neighbour's house and the applicant grabbed her by the head and reportedly slammed her head into a brick wall. The wife fell to the ground and the applicant kicked her in the stomach. Neighbours came to the aid of the wife and the applicant left. An ambulance was called. The wife suffered a broken blood vessel in one eye, a haematoma on her forehead and a cut. There was also a small bruise on her stomach and a number of scratches and grazes on her arms. 59On 4 November 2009 the applicant was convicted of another assault occasioning actual bodily harm. On this occasion he received a suspended sentence of imprisonment for 12 months on entering a section 12 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months. This was a serious offence constituting the assault upon the 18-year-old former foster daughter of the applicant (and his wife) in the presence of a number of students who were the daughter's pupils. The pupils were all children. The assault occurred the previous year on 15 September 2008. The Tribunal was informed that the applicant accepted this was a serious offence. 60Indeed, this was a serious assault upon a young woman who was a former foster child of the applicant and his wife. The circumstances of the assault do the applicant no credit. The applicant hit and pushed the young woman into a garden bed and when she was on her back, he straddled her and punched her to the head with both his right and left fists (not exceeding five times). The victim was taken to hospital with swelling and bruising to her right ear and head and superficial scratch marks to her neck. 61The applicant was later convicted of stalk, intimidate, intend to cause fear of physical/mental harm under section 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and was sentenced to a section 9 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a duration of two years. The applicant became involved in an argument with his wife in the presence of the children on 8 October 2008 after returning from St John of God Hospital. The applicant followed his wife and the two foster children in a car and became involved in a domestic violence incident. This incident was frightening and dangerous. The applicant drove dangerously causing the wife to stop the car resulting ultimately in the applicant violently grabbing the driver's window out of the door causing glass fragments through the inside of car and onto the road in the presence of the children. The applicant was arrested and taken to the police station from the scene of the serious incident. It is fortunate that no one was seriously injured or killed as a result of the applicant's aggressive and thoughtless behaviour. The applicant is extremely lucky that he was not facing more serious charges as a result of this incident. 62These incidents fall within the description contained in clause 1 (6) of schedule 1 of the Act. They are events which cause or "trigger" an assessment of risk by the Children's Guardian pursuant to section 15 (1) of the Act. This assessment is before the Tribunal, and the young woman who submitted the assessment was cross-examined. 63During the process of assessment the Children's Guardian had regard to an incident reported to have occurred on 22 November 2003. An AVO had been made in relation to the 14-year-old foster child in the applicant and his wife's care. The applicant had an argument with his wife in front of the children. The applicant kicked and broke a chair and broke all the presents that had been purchased for the child for Christmas. The applicant's wife tried to leave the home with the children but the applicant prevented her from using the family car, forcing her to flee on foot. The applicant's wife signed an agreement the following day that she would not allow the applicant back into the home. On 2 January 2004 the applicant telephoned the caseworker stating he had been in the home all along despite the agreement signed by the wife. The children were removed from the applicant and his wife's care that day. 64In the documentary material produced by the respondent, an incident is recorded to have occurred when the children were present on 18 November 2008. This incident was an incident of verbal domestic violence. The applicant was admitted into Nepean Mental Health Hospital following this incident. 65The applicant disputes the allegation that he sexually abused the 14-year-old foster daughter in his care in 2003. 66The reported incident concerning that allegation of sexual abuse was investigated and the circumstances were "confirmed" resulting in the removal of the foster daughter from the applicant's care. The victim's three siblings were also removed from his care. The applicant and his wife brought proceedings in the Administrative Decisions Tribunal which were finalised on 11 March 2004 (with written reasons on 3 June 2004). The three siblings were subsequently restored to the care of the applicant and his wife. It was submitted by the applicant that the findings made by the Administrative Decisions Tribunal were that "in all likelihood the abuse never happened." There were no criminal charges laid as a result of this allegation. 67In the interim decision (BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111) the Tribunal came to the conclusion that this allegation of sexual abuse was equivocal because subsequent investigations found that the allegations of sexual abuse were "confirmed" and resulted in the payment of $25,000 on 5 April 2006 awarded by the Victims Compensation Tribunal which concluded that the sexual assault did occur. Despite the serious nature of these allegations, little weight ultimately can be placed upon them because of the contradictory findings by different investigatory agencies at various points in time. The Administrative Decisions Tribunal had the benefit of extensive oral evidence and a consideration of the matter which is not available in the hearing before this Tribunal. The findings may also be sufficient to trigger an assessment because of clause 2(a) of Schedule 1 of the Act, but because of the convictions already recited, the triggered assessment was validly commenced. No weight was placed upon these allegations in the determination of the interim application for a stay. The position in relation to this allegation remains the same on the final hearing of this matter as referred to in the interim decision. That is, no weight can be placed upon the equivocal nature of the findings relating to the sexual abuse allegations. 68The Tribunal finds that the convictions of the applicant were for serious offences involving violence. Additionally, the victims of that violence are all female and one of whom was a former foster child over the age of 18 at the time of the offence. 69The applicant accepted that the offence in relation to the assault of the former foster child is a serious offence. Indeed all of the convictions are for serious offences of violence involving females and mainly perpetrated in the presence of children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred 70The period of time since the offences and matters occurred vary. The earliest recorded matter occurred in 2003. The latest offence occurred in 2008 and the applicant was convicted in 2009. Therefore the latest conviction occurred nearly 5 years ago.

The age of the person at the time the offences or matters occurred 71At the time of the offences and matters referred to the applicant was aged 36 through to 42 years of age.

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 72The ages of the victims varied. The only alleged child victim is in relation to the allegations concerning the 14-year-old former foster child, who is alleged to have been sexually abused by the applicant. That alleged victim suffers from frontal lobe brain damage and had reportedly been sexually abused by her father prior to coming into care of the Minister. No weight can be placed upon this alleged conduct for the purposes of these proceedings. 73The victims of the applicant's offences for which he has received punishment through the criminal law have all been adult females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship. 74The victim of one of the offences was the applicant's former foster daughter then aged 18, who was a vulnerable woman. It was conceded by the applicant that this is highly inappropriate behaviour. The Tribunal views this particular offence with great concern. During the course of the offence of violence there were witnesses who were vulnerable children. The applicant did not moderate his behaviour despite the presence of those children. The children who were witnesses to those offences are vulnerable, particularly the children who were dance students of the former foster daughter who was 18 at the time of the offence for which the applicant was convicted in 2009. 75The foster children who were present at the time of the domestic violence offence committed by the applicant against his wife are vulnerable children due to their history and because they are children. According to Dr Lennings' report the brief history of the children's experience in their family of origin is that they were physically and sexually abused, that their father had both psychosis and organic brain damage and the mother was diagnosed with schizophrenia. The foster child who is now under the age of 18 and currently living with the applicant's wife has been diagnosed with autistic spectrum disorder. These children are highly likely to be adversely affected by additional incidents of violence to those which they had already experienced in their family of origin, and the cumulative effect of experiencing further acts of violence is regrettable. Dr Lennings in his evidence extracted later in these reasons identifies the effect on these children of this offence.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person 76The applicant was aged 41 of the time of the incident in 2008 and the victim was aged 18. That is the largest age difference between the applicant and the victims of his offences. The greatest difference is therefore 23 years. 77The victims of the applicant's offences have all been females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship. 78The victim of one of the offences was the applicant's former foster daughter. It was conceded by the applicant that this is highly inappropriate behaviour. 79The incidents which occurred between the applicant and his wife were apparently witnessed by the two male foster children in their care. Those children were entitled to be protected from any violence. 80The applicant has been convicted of offences against his sister-in-law and her sister. Young children were present at the time of those offences. The applicant did not moderate his behaviour taking into account the relationship between him and the victims, and disregarding the presence of children and the potentially significantly adverse effect of his behaviour upon them. 81The difference in age is not a major factor in the applicant's offending behaviours. The prominent distinguishing feature is that the applicant does not regulate his behaviours in the presence of females with whom he has had a personal relationship. The applicant has behaved inappropriately in the presence of young children by assaulting these women. The effect upon those young children of his frightening behaviour is clearly something which the applicant should have had regard to, when he committed those offences.

Whether the person knew, or could reasonably have known that the victim was a child 82The victims were not children as defined in the Act: section 5 (1) of the Act. 83It is stated by Dr Lennings in his report dated 14 November 2008 at [75] that he pointed out to the applicant that in Dr Lennings view the former foster daughter who the applicant assaulted, although she was over the age of 18, was in Dr Lennings' view the applicant's child "irrespective of her age and that he needed to exercise responsibility in this behaviour and attitude towards her." Clearly, this view refers to the relationship which existed rather than the age of the victim.

The person's present age. 84The applicant is currently 47 years of age. 85The applicant may have matured and reflected upon his behaviours due to his further experiences and consideration of the consequences of past experiences. 86The applicant is now employed in an office environment where he works on special projects. Previously he worked as a mechanic. The applicant clearly derives a great deal of satisfaction from his relationship with his foster children who currently reside with the applicant's wife. The applicant has found dealing with these proceedings and the interim bar decision challenging and is now seeing his psychiatrist approximately every six weeks instead of the previous interval of six months. Maturity has not apparently reduced his vulnerability to stress.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 87The applicant has been sentenced in relation to serious offences of violence. They have been partially explained by reference to the adverse reaction to stress, change of medications and the applicant's mental health. The applicant has provided references from friends which attest to his good character and his ability to behave appropriately when he chooses to do so. 88There has been no criminal offence committed by the applicant since 2009. 89The applicant relies upon his completion of courses in 2009 one of which is called "Enough is Enough" which addressed stress and anger management. This course was completed on 26 August 2009. The applicant has also completed a course on 17 August 2009 titled "Engaging Adolescents". The letter which accompanied the certificate from "Enough is Enough" was addressed to the Guardian ad litem for the children in the proceedings in the Administrative Decisions Tribunal, but only referred to 2 occasions of violence. This places some doubt upon the level of disclosure given by the applicant when completing that anger management course. The applicant has not been reported to display overt aggressive impulses or behaviour since 2009. 90The applicant's counsellor gave evidence but was unfortunately missing files. She could not elaborate upon the material that has already been provided in documentary form. The applicant has attempted to address his anger management issues which have led to a number of his past difficulties. 91The applicant has not provided any evidence of completing a program of self-development concerning his assault of and attitudes towards women and displaying those violent attitudes and behaviours in the presence of children. The Tribunal raised in the interim decision the fact that the offences of violence had a distinguishing element (at [78], [84], [88], and [137]), which finding has been referred to again earlier in these reasons. A domestic violence program targeting perpetrators of domestic violence towards women, may have further assisted the applicant.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 92This aspect was the subject of considerable volume of evidence and includes the expert opinion provided by Dr Lennings. 93Dr Lennings provided written reports dated 14 November 2008, 2 December 2008, and 1 August 2014. 94The applicant submitted that Dr Lennings' assessment that the children in the care of the applicant and his wife are vulnerable children and are likely to suffer more from the absence of the applicant then they are to suffer from any verbal outbursts: Report dated 14 November 2008 at [113]. The incidents as described from the information earlier in these reasons were more than verbal outbursts. It was also submitted that Dr Lennings' view was that the applicant does not represent an ongoing high-level risk to the children and the risk he does pose can be managed by focused psychotherapy and various parenting programs which were recommended by Dr Lennings: Report dated 14 November 2008 at [115]. 95It was submitted on behalf of the respondent that this Dr Lennings report states that there is a "moderate further risk of harm to the children, primarily a function of [the applicant's] lack of insight into how his explosive behaviour and rigid obsessional behaviour can impact on the children's development should they choose to defy him at some time.": Report dated 14 November 2008 at [112]. 96The respondent also submitted that there were concerns expressed by Dr Lennings about the applicant's "explosive nature" and that his aggression is now "a pattern of such behaviour": Report dated 14 November 2008 at [106]. 97Dr Lennings performed an assessment and provided an additional report dated 1 August 2014. For the purposes of that assessment Dr Lennings interviewed the applicant and his wife on 29 July 2014. The foster child who resides with the applicant's wife accompanied them to the interview but was not interviewed by Dr Lennings. 98Dr Lennings conducted an interview on this occasion lasting approximately an hour. 99It would be fair to say that Dr Lennings' evidence in the Tribunal was consistent with his report. Dr Lennings conducted a risk assessment utilising the Family Strengths and Needs measure. The applicant and his wife were included in that risk assessment. Dr Lennings stated in his report that his current risk assessment using this item is largely consistent with his views in 2008: Report dated 1 August 2014 at [37]. 100Dr Lennings also conducted an assessment of violent risk using an assessment tool described as HCR-20. This device requires a response to 10 historical or static items predictive of risk of violence: five items that assess clinical factors known to be predictive of violence and five items that reflect items important for the management of violence risk. The items which were suggestive of some risk for the applicant as recorded by Dr Lennings were the historical events which resulted in the criminal offences. It is asserted by Dr Lennings that the applicant's mental health contributes to his violence risk. It is asserted that the original anger episodes were associated with untreated and then a disruption in treatment of his depression: Report dated 1 August 2014 at [39], [41]. There were identified also relationship issues with the female foster child which the applicant found challenging according to Dr Lennings. 101The respondent was critical of Dr Lennings' assessment and submitted, for example that his current opinion minimises the applicant's violent behaviours in the past by calling them "intemperate behaviour". The respondent submitted that Dr Lennings effectively ignored his previous report where he found a pattern of violent behaviour, preferring now to call it only two episodes of violent behaviour: Report 1 August 2014 at [41]. These observations appear reasonable criticisms of the latest assessment by Dr Lennings. However, Dr Lennings, as recorded earlier, believed his assessment was largely consistent with his views in 2008 and referred to previously in these reasons. 102It is clear that the offences which the applicant committed were seriously violent and scary events. A child witnessing those events would not find them trifling and be scared by the violence to women. 103Dr Lennings put forward a hypothesis in his most recent report that there are three primary requirements likely for a further incident to occur. The first of those is that the applicant's psychological condition would need to deteriorate. This is clearly identifying the supposition that the previous behaviour was caused by a deterioration in the applicant's psychological condition. The second factor is that there would need to be the development of a history of conflict between the applicant and the foster son, and the third factor would be that the applicant entered into a period of significant stress. Dr Lennings believes that scenario appears unlikely: Report 1 August 2014 at [46]. 104Dr Lennings recommended that the most important management need for the applicant is continuing access to treatment for depression including pharmacological management. 105There is, however, evidence before the Tribunal that in 2008 the applicant assaulted his foster daughter at the beginning of September 2008 and then was admitted to a psychiatric hospital for treatment of his major depression. It was said by the psychiatrist who was treating him at the time recorded in a letter dated 30 September 2008: "Despite his depressive condition and his physical impairment, [the applicant] has engaged well in the hospital day programs and with other staff, and presents as a person with insight into his anger issues and is determined to undertake meaningful therapy. There has been no behaviour on the ward that could be remotely construed as aggressive.... continued estrangement from his foster sons will be instrumental in perpetuating [the applicant's] depressive condition and will be likely to significantly retard his recovery. [The applicant] would not appear to be a risk of physical aggression in any but the most extreme circumstances of provocation, and I would advocate a repeal of the separation order at the earliest possible juncture." 106Despite that expert opinion, when he was discharged from the hospital on 8 October 2008 he committed the violent and scary offences against his wife in the presence of his foster children which have been referred to previously in these reasons, and then he was readmitted to hospital. This was not "the most extreme circumstances of provocation" but a violent and unwarranted incident. The applicant told his psychiatrist (recorded in Dr Pusic's report of 23 March 2009), he admitted he was verbally abusive towards his wife but said he at no stage had any intent to physically harm her. The impulsive behaviour was unacceptable by any standard and the applicant was punished for the breach of those standards. The report by the applicant about difficulty with the medication is not apparent from the letter dated 30 September 2008 by his treating psychiatrist at the hospital. It is clear from the letter that if the applicant did not get what he wanted, a repeal of the separation order, his treatment would be retarded. The expert opinion did not predict the following events based upon the treatment of the applicant. 107The applicant clearly had and continues to have a need for psychiatric treatment with which he is currently compliant. 108In his report dated 14 November 2008 Dr Lennings stated at [79], referring to the same 8 October 2008 violent incident with his wife with the children present: "I pointed out to [the applicant] the concerns that such behaviour if repeated could cause ongoing problems in terms of anxiety or distress to his children. [The applicant] defended that by saying he loved his children and he would not hurt his children and he could not imagine a situation occurring where his children would be defiant say in the form that [the former foster child the applicant assaulted] had been. However, such a comment places some responsibility on the children for not developing defiance in their behaviour towards their father. [The applicant] appeared to be unable to internalise the necessity for him to exercise responsibility for his behaviour and continuing to externalise the controls for his behaviour into the environment. The difficulty for [the applicant] is that a combination of depression plus a tense environment is likely to lead to him acting in an impulsive and potentially aggressive way given the pattern that has occurred over at least three occasions of such behaviour being evidenced. Whilst I believe such lapses would be rare, the impact of such lapses could potentially be quite catastrophic." (Emphasis added) 109Dr Pusic gave evidence by telephone and was generally supportive of the applicant. It was clear that he did not know the full details of all the events which have occurred in the applicant's life. Dr Pusic is concerned to treat the applicant with medication and psychotherapy to the best of his ability. That requires constant monitoring to ensure the medication is effective and at the right dose. Changes may need to be made to the treatment regime as circumstances change according to the tenor of Dr Pusic's evidence. 110Dr Tait also gave evidence by telephone. The evidence he gave was supportive of the applicant and he considered that the applicant's 'exile' from his home by a government agency was pointless and damaging to the family. 111The applicant's wife gave evidence and was a witness of truth. It was clear that she saw her primary responsibility is to care for the children and protect them from any risks of being exposed to domestic violence. Unfortunately, she was not able to do that in the past due to the applicant's behaviour. 112It was determined that the information provided to the Tribunal for the interim decision about the stay application in this matter identified that the applicant posed a risk to children. That risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). The evidence subsequently received does not displace that conclusion. The evidence identifies that the applicant does pose such a risk to children. 113The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". 114There is no relevant definition of "child abuse" contained within the Act. 115In the reasons provided in the interim proceedings for a stay, the Tribunal referred to definitions of "child abuse" which may be useful in considering the definition of that term as used in the Act. In written submissions by the respondent at the final hearing, it was submitted that the definitions referred to in those interim hearing reasons commencing at [102] are appropriate definitions to consider in reviews under the Act. 116As the Tribunal observed in the interim decision the Act is part of a suite of legislation designed to protect children. The Children's Guardian who is responsible for the oversight of the Act is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). There is an offence created in section 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of the child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units" 117The definition of "abuse" in section 4 (1) of the Family Law Act 1975 (Cth) is similar. 118For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. That risk of harm may also constitute child abuse as it is defined in the relevant legislation. 119The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. Those risks include considerations of the impact of the behaviour of the applicant on particular children, and the predicted consequences of a repetition of that behaviour on children, according to Dr Lennings as "potentially...quite catastrophic". The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Any information given by the applicant in, or in relation to, the application 120It has previously been observed in the interim decision that the applicant was reluctant to engage with the Office of the Children's Guardian stating to the woman at that office on 21 March 2014 that he will not provide any more information for the risk assessment being conducted at that time, in order to progress a decision bar outcome so he may then appeal that outcome to the Tribunal and then to the Supreme Court. 121The applicant was given an opportunity to submit further supporting material to assist in his risk assessment, when he was advised that there was a proposed refusal of his application on or about 22 April 2014. This information is recorded in a letter dated 2 June 2014 from the Office of the Children's Guardian. The information which was sought was information which could mitigate any of the identified risks. No further material was supplied in response to that request. 122The applicant has an obligation to fully disclose to the Tribunal any matters relevant to the application: section 27 (4) of the Act. 123Since that time the applicant filed a bundle of documents received by the Tribunal on 2 July 2014 and the other evidence referred to previously in these reasons. This information was helpful to the Tribunal in reaching its final decision. 124However, the reluctance of the applicant to engage in the disclosure process with the Children's Guardian appears a continuation of the failure to internalise the necessity for him to exercise responsibility for his behaviour and continuing to externalise the controls for his behaviour into the environment identified by Dr Lennings. It is perhaps merely a coincidence that the witness for the Children's Guardian who was cross-examined and conducted the risk assessment is also a young woman.

Any other matters that the Children's Guardian considers necessary 125The Children's Guardian also considered the professional references provided by Dr Tait and Dr Pusic. It was considered at that time that both references appeared minimal in addressing the risks posed by the history of the applicant and the authors of those documents did not return the calls from the Office of the Children's Guardian to permit the references to be verified. Both doctors however gave evidence to the Tribunal. 126Dr Pusic, the applicant's treating psychiatrist, provided a report dated 26 June 2014 subsequent to the assessment by the Children's Guardian. In that report the psychiatrist states that he has seen the applicant on six occasions over the last 18 months and last saw him on 19 June 2014. According to the report the applicant maintains pharmacotherapy on antidepressant and mood stabiliser medication and has received cognitive behavioural psychotherapy. Dr Pusic stated that the applicant "has recently been placed under considerable stress by the Office of the Children's Guardianship's (sic) decision that he not reside with his fostered children. This is despite the fact that the two children concerned have been under the care of [the applicant's] wife and himself for 15 years... He has not displayed aggressive impulses or behaviour since his difficulties in early March 2009. His prognosis is excellent." 127Dr Pusic was cross-examined at the final hearing of this matter by telephone. The applicant has seen him recently to deal with the stress he is experiencing. The opinions Dr Pusic previously expressed remain the same as those in his written material. 128The stress currently experienced by the applicant, as recorded in the extract from Dr Pusic's report, is apparently attributed to the decision to issue an interim bar and at the time of the report the final decision had also been made. 129The applicant was clearly displeased with the investigation and assessment process undertaken by the Children's Guardian and wanted to progress the decision to be made so he could exercise his rights of review and appeal.

Determination 130The applicant accepted that the offence in relation to the former foster daughter is a serious offence. There are other offences which are also very serious and concerning. The impact of those offences upon the safety of children should be obvious, and the applicant is very fortunate that nothing more serious eventuated from any of those incidents where children could have been subjected to life-threatening injuries. As it is, the children who were present at the times of those offences have been exposed to behaviour which may constitute child abuse. 131The victims of the applicant's offences of assault have all been females with whom he has had a personal or domestic relationship and in the case of his wife, with whom he continues to have a relationship. There is a pattern of offending behaviour. 132The foster children present at the time of the domestic violence offences committed by the applicant against his wife are vulnerable children. 133The applicant determined that he would not provide any additional information to the Children's Guardian to assist further with the assessment of risk despite it being in his interests and arguably also his obligation to do so. There has now been further information provided to the Tribunal. 134If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. It is unfortunate that the foster child currently in the care of the applicant's wife is dependent and attached to the applicant and the failure to obtain a clearance will have an effect upon that child as well as the applicant. That foster child also has to counteract the negative effect on him of incidents of domestic violence perpetrated by the applicant in his presence. That child and the other foster son (no longer a child) could have been seriously injured in the incident of domestic violence perpetrated by the applicant where he drove dangerously and then violently pulled the window out of the driver's side door of the car so that there was broken glass. 135For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. The behaviours in the past occurred with women who were in the presence of children and that did not cause the applicant to modify his violent behaviour. That risk of harm may also constitute child abuse as it is defined in the relevant legislation. 136The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. 137In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. 138The order of the Tribunal therefore is: (1)The decision of the Children's Guardian dated 2 June 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed. (2)The application for review of the decision of the Children's Guardian filed 4 June 2014 is otherwise refused and dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2014

Administrative Decisions Review Act 1987(NSW)

Administrative Decisions Tribunal Act 1997(NSW)

Commission for Children and Young People Act 1998(NSW)

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