BRY v Children's Guardian

The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

1. The Applicant relied on the report and evidence of Mr Martin Finnegan, Provisional Psychologist, from June 2015. For the purposes of his assessment of the Applicant, it appears that Mr Finnegan was apprised of the majority of the documents produced by the Respondent.
2. The assessment was conducted at the request of the Applicant ostensibly to assess his suitability for future employment as a drug and alcohol counsellor. The Applicant had also indicated to Mr Finnegan that he was seeking an assessment for court purposes as a result of a prior criminal conviction.
3. During the psychological review, the Applicant told Mr Finnegan he had a history of drug and alcohol use, and that he was also diagnosed with depression in the late 1990s. He further disclosed that he had a hospital admission in the context of his mental illness in 2002.
4. [However, medical records obtained by the Respondent indicate that the Applicant was in fact admitted to hospital as an involuntary patient on two occasions, in 2003 and 2004 for recurrent drug-induced psychosis].
5. Mr Finnegan conducted a Personality Assessment Inventory (PAI) of the Applicant. Four validity scales were within the normal range. However, a supplementary indicator revealed the Applicant was likely responding in an overtly defensive manner, suggestive of a level of impulsivity and risk-taking behaviour.
6. A Treatment Rejection (RXR) scale was also employed and is a measure of a person's interest in psychological or emotional change. The Applicant recorded a high score on the scale, which Mr Finnegan opines may reflect a person who admits to few difficulties and resists efforts to change.
7. Mr Finnegan stated that the Applicant's strengths in interpersonal relationships may assist in his ambition to work with indigenous youth with drug and alcohol issues. However, Mr Finnegan cautions that there may be a need to address the Applicant's tendency to impulsivity or risk-taking behaviour, though he notes the Applicant does not see a need to address any psychological issues.
8. The Tribunal accepts the Respondent's submission that Mr Finnegan's review of the Applicant was not specifically a risk assessment, and did not employ some of the usual assessment tools such as the Static-99 or Static 2000ER. Mr Finnegan's evidence is therefore of somewhat limited utility in assessing the Applicant's risk to the safety of children.

Any information given by the Applicant in, or in relation to, the application

1. The Applicant has abstained from alcohol for approximately 12 years and drugs for approximately 8 years. During this period of abstinence, the Applicant has gained qualifications and worked as a chef. However, a knee injury has prevented him from continuing work in that occupation. As a result, the Applicant has commenced studies to gain alternative qualifications. The Applicant is enrolled in a Certificate IV in Alcohol, Other Drugs and Mental Health, with a view to future employment as a drug and alcohol counsellor.
2. The Applicant told the Tribunal that it is his goal to help indigenous youth from going down a path of drug abuse and crime. He wishes to use his own experiences to assist others. He said that when he was undergoing rehabilitation for his own drug problems, he specifically requested a counsellor who had previously been a drug user, believing that engaging with someone with lived experience is particularly beneficial. It is for this reason he believes he can educate young indigenous people on the dangers of drug abuse, and assist them to make better choices in their lives.
3. The Applicant readily acknowledged he has made very poor decisions in his past, and said that his drug use was a major factor. He said his choice of drug at the time was ice, which he said confuses the brain and affects a person's behaviour. He said he was a heavy user of ice to the extent that he was using it every day at the time of his troubles. He says he has not used drugs and alcohol for approximately 8 and 12 years respectively, and has not relapsed during this time.
4. The Applicant acknowledged the impact domestic violence can have on a household. In particular, the Applicant said that the impact is "massive", especially in the Aboriginal community. The Applicant said that if you grow up seeing domestic violence, you think it is ok, and it gets carried down through the generations. He said he wishes to be able to help Indigenous people to prevent the cycle continuing.
5. It is evident the Applicant has a close and loving relationship with his family, including his brother Mr D and mother, Mrs S. Mrs S is a tertiary educated Indigenous woman who is also a Justice of the Peace. She has held a number of senior positions in education, health and justice departments of government. More recently, she has also held a senior role in working with children in foster placements. The various police and court records produced by the Respondent indicate Mrs S has been a constant in the Applicant's life, including during periods when the Applicant was committing criminal offences. Her support and advice was also sought by the Applicant's former partner during difficulties in her relationship with the Applicant. In her written reference, Mrs S provided details of the Applicant's background, including in relation to the trauma he suffered as a child. Mrs S accepts the Applicant has a troubled past but indicates that the changes he has made to his life have been marked, and she is confident in his ability to be a role model for young people in the Aboriginal community.
6. The Applicant's brother, Mr D, is a case manager within the Department of Family and Community Services. Mr D gave evidence about the Applicant's abilities as a father and his dedication to his three children. Mr D indicated that he had witnessed the Applicant on numerous occasions in the presence of many children during gatherings of extended family, and reported that such interactions have always been positive.
7. The Applicant's former partner writes positively of the Applicant's rehabilitation and the shared parenting of their children. She states that the Applicant endeavours to spend as much time as possible with their children, and they are free to spend time with him whenever they desire.
8. According to the Applicant, he and his former partner attended counselling with Relationships Australia in the past, and, notwithstanding periods when an apprehended violence order was in place, they continued to share the care of their children. The Applicant says that he and his former partner have a good relationship and communicate regularly with each other.
9. Other references, including by a senior employee of Aboriginal Affairs and a Director of an Aboriginal Corporation, attest to the Applicant's abstinence from alcohol and drugs, and the steps that he has taken to change the course of his life. They also refer to the Applicant's volunteer work in the local community, including with an Indigenous organisation which encourages and promotes the participation of Indigenous people in sporting events. They both strongly support the Applicant in his application for an enabling order, and in his goal to help Indigenous people experiencing issues similar to those which featured in his past.

Any other matters that the Children's Guardian considers necessary

1. Counsel for the Respondent submits that the psychological evidence cannot be relied upon as an accurate assessment of the Applicant's risk to the safety of children. Counsel notes the fact that Mr Finnegan is not yet a registered psychologist and has no training in conducting risk assessments.
2. Counsel for the Respondent, however, submits that the Tribunal should accept Mr Finnegan's opinion that the Applicant may have issues with his ability to maintain his self-control and his impulsivity and tendency for risk-taking. Counsel for the Respondent submits that the Applicant has minimised his disqualifying offending, and has no insight into the damage caused by domestic violence. The Respondent accepts that the Applicant is changing his life around. However, the Respondent submits that this is insufficient for the Tribunal to be satisfied that the Applicant has discharged his onus of proof that he is not a risk to the safety of children.

Conclusions and orders

1. In this matter, the Tribunal is tasked with determining whether the Applicant has discharged his onus to prove that he does not pose a risk to the safety of children.
2. The Applicant comes before the Tribunal with a disqualifying offence and a criminal history which dates from 2000, and which has included matters involving aggression and anti-social behaviour. The existence of those facts gives rise to concern and has required careful consideration by the Tribunal.
3. However, The Tribunal takes into account that the refusal of a working with children check clearance by the Respondent was on the basis of the Applicant's 2003 conviction for indecent assault. Notably, it was not refused as a result of any other disqualifying offending. Whilst the Applicant's total criminal record and his conduct since his disqualifying offence is, amongst other factors, relevant to the Tribunal's determination as to whether the Applicant poses a risk to the safety of children, the Tribunal must give consideration, inter alia, to the seriousness of the offence that gives rise to the Applicant's disqualification.
4. In this regard, the Tribunal notes that the disqualifying offence was not committed against a child. It occurred 13 years ago, and therefore is not particularly recent conduct. The Applicant was 21 years of age at the time of the offending and was a heavy user of alcohol. His conduct, although clearly not trivial and his intoxication not an excuse, was less serious than other conduct which may constitute an offence of indecent assault.
5. His other (non-disqualifying) offending did not involve any offences against children. His offending, and his actions which led to the granting of apprehended violence orders in respect of his former partner, were committed at a time when the Applicant was in his twenties, was using alcohol and/or illicit drugs on a regular basis, and had not engaged appropriate professional support to address those issues.
6. The Tribunal notes that the Applicant successfully attended rehabilitation in 2007 and 2008. There was some question about the timing of his abstinence from drugs, and in particular, whether it occurred prior to the commission of his last offence in November 2007. In this regard, the Tribunal findings do not turn on the specific dates. It has been established that the Applicant entered rehabilitation in late November 2007 and has maintained his abstinence since that time, as corroborated by his former partner, family and friends. It is also pertinent that the Applicant has had a lack of relevant criminal convictions for almost eight years, and this mainly coincides with his abstinence from alcohol and drugs. The Tribunal finds that the Applicant is genuine in his desire to help Indigenous youth from making similar poor choices, and to encourage them to lead healthier and more productive lives.
7. The Tribunal found the Applicant to be a frank and forthcoming witness. The Tribunal considered that the Applicant has accepted responsibility for his disqualifying offending, and does not seek to minimise his actions nor shy away from the poor conduct and poor choices he has made in the past. The Tribunal is further satisfied that the Applicant has demonstrated insight into the harm caused by his past conduct, and the serious impact of drug and alcohol abuse, sexual assault and domestic violence in the community.
8. In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending, and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely drug and alcohol detoxification and rehabilitation, to address his use of drugs and alcohol, which featured prominently in his past offending and conduct.
9. The Applicant has matured significantly and has made important changes to his life, which is reflected in his lack of relevant criminal convictions in recent years. He enjoys stable relationships with his current partner and his family. He is actively involved in his children's lives and in his local community. He has gained qualifications and employment, and is pursuing a course of study. There is now an opportunity for the Applicant to build upon his progress and prevent others from remaining on a path of drugs and crime.
10. Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, the Tribunal is satisfied the Applicant has discharged his onus that he does not pose a risk to the safety of children.

ORDERS

1. Accordingly, the Orders of the Tribunal are as follows: 1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. 2. The Respondent must grant the Applicant a Working with Children Check Clearance. 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: 22 October 2015