At the time of the Tribunal hearing the Applicant was 34 years of age.
[2]
The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the matters occurred
The Applicant has a criminal record. At the time of his disqualifying offending, he was subject to a good behaviour bond. His convictions for offences subsequent to his disqualifying offence are detailed below.
16.09.2004: Resist or hinder police officer in execution of duty. The Applicant was ordered to enter into a section 9 bond for 3 years, with various conditions including the supervision of the NSW Probation Service, to continue with regular medical and psychological appointments, and to not use any illicit substances. He failed to comply with the condition to be of good behaviour by virtue of subsequent offending and was fined $150 in November 2006.
1.11.2004: Use Offensive Language in/near public place/school. The Applicant was fined $100.
15.02.2006: Behave in offensive manner in/near public place/school. The Applicant was fined $100.
26.05.2008: Stalk/intimidate intend fear of physical /mental harm (2 counts); Resist or hinder police officer in execution of duty; Contravene prohibition/restrictions in order (domestic). The police facts indicate that at the time of the offending, the Applicant and his former partner, who was also the mother of his three young children, had recently ended their relationship. On 21 October 2007, the Applicant went to the victim's house uninvited and made a series of verbal threats to the victim. He also sat parked outside the premises in a car. The following day, the Applicant parked his car in the driveway of the victim's home and sounded his horn on a number of occasions.
At the time of the offending the victim held fears for her safety, and believed the Applicant was consuming large quantities of illicit substances, making the Applicant violent and irrational. An apprehended domestic violence order was applied for and made.
On 2 November 2007, the Applicant went to the victim's home after agreeing to discuss matters relating to their children. However, he did not agree to leave the premises. The Applicant became angry and began to yell and swear at the victim. Fearing she was about to be assaulted, the victim punched in the Applicant in the head. The Applicant grabbed the victim by the throat, pushed her up against a wall and indicated he was going to have the victim charged with assault.
In addition to those offences, on 23 September 2007, the Applicant was observed to be verbally aggressive to people outside a hotel in the early hours of the morning. In particular, he refused police instruction to move on from an area, and resisted arrest.
In relation to the offences committed in September and November 2007, the Applicant was sentenced to 7 months' imprisonment, which was suspended on entering a good behaviour bond, with various conditions that he comply with all reasonable directions as to counselling and treatment regarding education, drug and alcohol rehabilitation, drug and alcohol testing, anger management or any other area of criminogenic behaviour identified, and not to assault, molest, harass or intimidate the victim.
On 20 November 2007, the Applicant entered into a drug and alcohol withdrawal unit for detoxification, after which he transferred to a drug and alcohol rehabilitation facility where he remained for several months. The Clinical Director of that facility noted that the Applicant, who had identified abstinence from drugs as being his key goal, had demonstrated significant improvements in all areas.
The Applicant's supervision by the Probation and Parole Service ended in about December 2008. He is recorded as having responded satisfactorily to supervision and inquiries by the Probation and Parole Service with police and the Applicant's former partner indicated the Applicant appeared to be non-violent and drug-free.
The Tribunal notes that in 2010, the Applicant was charged with a stalking offence and an offence of using a carriage service to threaten to kill. A police report alleges the Applicant made a series of telephone calls and text messages to his former partner during which he threatened to harm her. An interim and provisional apprehended violence order was subsequently made.
However, the charges against the Applicant did not result in any convictions. Rather, the stalking charge was dismissed and the telephone charge was withdrawn by the prosecution. There was no documentary evidence before the Tribunal as to the reasons for those outcomes, and no transcript of any court proceedings was produced. Rather, the Applicant's oral evidence, which was corroborated by his mother's oral evidence, is that the charges could not be sustained due to a lack of evidence. In particular, the oral evidence indicated that telephone records subpoenaed by the prosecution did not disclose the existence of the telephone calls alleged, and there was a finding that evidence may have been fabricated by the victim.
The Applicant's evidence is also corroborated by police records which indicate that although provisional and interim apprehended violence orders were made at the time the Applicant was initially charged, no final apprehended violence order was made by the court.
The Tribunal notes that the alleged victim (the Applicant's former partner) did not refer to these events in the written reference she supplied to the Tribunal. The Tribunal therefore could not take the matter any further, and in the absence of any other evidence, the initial police report cannot be relied upon as proof of the matters alleged to have occurred in 2010. Furthermore, it is evident from her reference that the Applicant's former partner is now supportive of the Applicant and the changes that he has made to his life.
Since the cessation of his alcohol and drug use in the latter part of 2007, the Applicant has not been convicted of any violent or sexual offences. (His conviction in 2008 related to offending which occurred in September and November 2007). He has never been convicted of any offences against children.
[3]
The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition
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.
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.
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.
[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].
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.
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.
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.
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.
[4]
Any information given by the Applicant in, or in relation to, the application
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.
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.
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.
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.
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.
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.
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.
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.
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.
[5]
Any other matters that the Children's Guardian considers necessary
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.
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.
[6]
Conclusions and orders
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[7]
ORDERS
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
Parties
Applicant/Plaintiff:
BRY
Respondent/Defendant:
Children's Guardian
Cases Cited (9)
Issue
The issue at hearing was whether the Applicant had discharged his onus to rebut the statutory presumption, in subsection 28(7) of the Act, that he poses a risk to the safety of children.
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: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
Finally, 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.
Practice and Procedure
The 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 Act. Civil and Administrative Tribunal Act 2013, s 36.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
Procedural fairness and other aspects of natural justice, of course, 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 Balencio (1987) 8 NSWLR 436.
At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows:
"33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."