BPA v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-02-05

The applicant's present age

The applicant is currently 49 years of age.

The seriousness of the applicant's total criminal record

As I have already noted the applicant has a lengthy criminal record, involving a pattern of aggressive and violent behaviour. That pattern being extremely serious in the years 1989 to 1999. However, in the last 14 years that aggressive and violent behaviour has been more isolated, with the last incident having occurred almost 5 years ago. That incident was nevertheless serious as it involved his partner.

The likelihood of any repetition by the applicant of the offence of which he was convicted and the impact on children of any such repetition

Any information given by the applicant

It was the evidence of Ms Singh that the Department had only heard very positive things about the applicant and his care for the children in his care and on this basis his application for a clearance was supported. In giving her evidence, she said she was aware of the 2010 incident, but had little knowledge about the relationship of the applicant and his partner. She said that when care workers go to see families they usually have a conversation about alcohol and drugs so as to make sure children in these families are safe.
Mr Gonzales said that, in May 2014, he became the allocated caseworker for the children in the care of the applicant and his partner. He said he had met with the family and the children and that he supported the applicant remaining with the family. He did, however, note that the relationship with the applicant had been fractious occasionally. Nevertheless, he supported his application for a clearance.
Mr Gonzales also said that no notifications had been made in regard to the children since 2010. He said that he understood alcohol had been an issue in the past. He also mentioned a recent issue where a member of the household was a person with a past child sexual assault conviction. When this was raised with the applicant and his partner the member left the premises and he no longer resides with the family.
Mr Gonzales said the focus of the Department was to develop the skills of the children so as to avoid situations of risk of harm. It was in this context that the Department had initiated a program of counselling for the children, the applicant and his partner. However, when the respondent determined to refuse his application for a clearance this initiative was put on hold.
Mr Gonzales said the programs take up to 10 weeks and occasionally they are ongoing. He said that the applicant's partner had indicated she was willing to engage in such programs. He said he had only met the applicant on 1 to 2 occasions to discuss the program and those discussions did not go well to start with.
The references relied on by the applicant were written in support of this application before the Tribunal. They all support the applicant being granted his working with children check clearance so that he can return to live with his family. In her reference to the Department, Ms Shirley Scott, Aboriginal Client Services Officer of the Department of Corrective Services, said she was willing to work with the applicant and his partner to ensue that the best possible outcome can be achieved. I understand this to mean that she is willing to provided ongoing support to the applicant and his partner so that the applicant can be granted and retain his working with children check clearance.
Ms Scott said she had known the applicant for almost 35 years and was aware of his criminal conduct. Notwithstanding his criminal record, Ms Scott said the applicant and his partner have been 'fantastic foster carers for over 15 years.' The remaining references, from leaders of a number of prominent Aboriginal organisations, made similar comments about the applicant and his partner.

Any other matters the respondent considers necessary

It was the respondent's contention that there remained a serious risk of physical harm to the children when the applicant has been drinking or is angry. In this regard, the respondent reiterated the applicant's evident lack of insight into the effect drinking alcohol and domestic violence has on his behaviour. That is, he has failed to recognise that his drinking is harmful to himself and also to others. His evidence is that he has not been drinking for the last 10 years, however this is clearly not the case.
The respondent also pointed to the applicant's lack of co-operation in providing information to support his application. This, the respondent said was consistent with the applicant failing to participate in the counselling programs that had been arranged by the Department. The fact that the Department had felt it was necessary to suggest such training, the respondent contended was sufficient to give rise to concern.
While I understand the concerns of the respondent, in my view, the lack of cooperation may not have been motivated by an intention to do so. From my observations of the applicant, he does have a difficulty in communicating and understanding what is required of him. This was especially so given the many years the Department had found him to be a suitable Aboriginal kinship carer, when it was at all times fully aware of his criminal history. He also appears to have understood the support of the Department and his referees would resolve the issue of the respondent's refusal to grant him a clearance.

Conclusions and orders

As I have mentioned above, the issue for determination is whether, on the material before the Tribunal, I can be satisfied that the applicant poses a risk to the safety of children. There is no presumption that he poses such a risk by reason of his offending conduct, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
Of concern in this application is the applicant's lengthy criminal history, which in part, involves acts of aggression and violence of a domestic nature. In the last 14 years, his domestic violence towards his partner has been isolated to a single reported incident in 2010. Although the applicant denies he hit his partner on this occasion, the evidence before the Tribunal suggests the contrary.
While there is no evidence that these acts were at any time directed towards a child or children more generally. For the reasons stated above, the applicant's offending conduct of domestic violence nevertheless affects the children in his care and on this basis his offending conduct poses a risk to their safety. The question is whether, having regard to all the information before the Tribunal, the applicant is likely to re-offend.
There are a number of factors that are protective of the applicant re-offending. These include the fact that he has a steady job, the love and support of his partner of 22 years and the support he receives from his local Aboriginal community, where he is highly regarded. Other factors are the Department's support in him continuing to care for the children in his care and his considerable reduction in drinking alcohol.
The applicant's offending has primarily occurred while he was heavily intoxicated. He said he does not drink any more, but this is not entirely correct. He still drinks occasionally. While I accept the applicant has moderated his drinking significantly in recent years, there is little evidence about his insight into his past offending and the impact it has or is likely to have on the children in his care. Nor is there any evidence of his understanding of the triggers that cause him to drink to excess and act aggressively and violently towards his partner and what steps he has taken to avoid such triggers.
The Department appears to also have concerns about the applicant's level of insight. It is regrettable that the counselling for the applicant and his partner about domestic violence and the impact it has on the children was post-phoned. Any counselling will of course require the full co-operation of the applicant.
Given the steps the applicant says he has taken to date and subject to his willingness to participate, substantial counselling may not be necessary, especially if the applicant is counselled and assessed by an independent suitably qualified professional, skilled in communicating with Aboriginal people. If the applicant provides a report from the person(s) having counselled and assessed him, there may no longer be any concerns about his lack of insight etc. enabling the respondent to accept a further application from the applicant, under paragraph 21(1)(b) and 21(2)(d) of the 2012 Act.
In the meantime, in the absence of such evidence, on the material before the Tribunal I am satisfied that the applicant poses a risk to the safety of children. It is not a significant risk, but one that requires further assessment and I recommend, subject to the applicant's willingness and co-operation to undertake offence specific counselling and a risk assessment, the respondent and the Department assist him in this regard. The respondent should consider advising the applicant, based on my findings, as to the nature of the assessment it would require in accepting a further application for a clearance and the Department should consider assisting the applicant in securing the necessary assessment.
For the reasons set out above, I find, at the time of hearing, that the decision of the respondent is the correct and preferable decision. On this basis the appropriate order is to affirm the respondent's decision the subject of review. However, as I have noted, the risk posed by the applicant is not substantial and subject to his agreement to undergo offence specific counselling in regard to his domestic violence and aggression and agreeing to a risk assessment, the respondent should, prior to the five year limit set out in section 21 of the 2012 Act, accept a further application by the applicant for a clearance and consider that application in the context of the findings I have made and the contents of any counselling and assessment reports that are provided. 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: 10 March 2015

Role of the Tribunal

There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 30 of the Civil and Administrative Tribunal Act 2013, section 9 of the Administrative Decision Review Act 1997 and section 27 of the 2102 Act.
Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
In determining this application, the Tribunal has power to make the following orders: 63 Determination of administrative review by Tribunal (1) … (2) … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Consideration

The jurisdiction of the tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.
The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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.""
These remarks have been accepted to equally apply to the word 'risk' as it appears in the 2012 Act.
As I have noted, the main issue is whether on the material before the tribunal and the applicable law, the decision of the respondent that the applicant poses a risk to the safety of children is the correct and preferable decision.
Set out below is the evidence and my findings in regard to the factors set out in subsection 30(1) of the 2012 Act

At a glance

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Judgment (6 paragraphs)

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Cases Cited (3)

Cited By (39)