CGV v Children's Guardian

CGV v Children's Guardian - [2016] NSWCATAD 232 - NSWCATAD 2016 case summary — Zoe

[3]

Role of the Tribunal

Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a WWCC clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a Working with Children Check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
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 all of the material before it, including any relevant factual material which may not have been before the Respondent: Administrative Decisions Review Act 1997, s 63.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, 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]
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, s 38 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.
In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29], 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 set out 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."

[5]

Child Protection (Working with Children) Act 2012

Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) : 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the Applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
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, 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."

[8]

(a) Seriousness of any matters that caused the refusal of the Applicant's application for a clearance

The matters that caused the refusal of the Applicant's application for a clearance was a workplace misconduct notification from the Roads and Maritime Services in relation to two allegations of sexual misconduct which occurred in 2014.
The first matter occurred on 10 September 2014 when the Applicant was driving a bus during the course of his employment. The misconduct involved the Applicant asking personal questions of an explicit nature to a female passenger and touching the female passenger on the chest. The Applicant describes the incident in a letter to his employer dated 16 September 2014. He says that the female passenger kept talking "incessantly" so he tried to divert her by asking questions about her personal life. He goes on to say these questions included whether the passenger had a boyfriend and "some of a little more explicit nature which she readily and willingly responded." He describes in the same letter how he told the female passenger, that he liked her top and "…she came over and was standing near me. I touched her chest, then she pulled her pants down slightly- then lifted her top. She got off the bus and I waited at the stop as I was ahead of my time. I called her back over to ask her if this was her correct stop as she usually gets off a bit further up."
A 16 year old female passenger who was on the bus at the time witnessed these events.
The second matter occurred on 12 September 2014 when the Applicant was also driving a bus in the course of his employment. The mother of a 28 year old female who is described by the Applicant as "partially handicapped", complained to the Applicant's employer that her daughter was the only person on the bus when the Applicant asked her daughter if she had a job. When she replied that she did not, the Applicant said "why not a pretty little thing like you?" The Applicant asked the passenger to sit at the front of the bus but she declined. The mother of the passenger reported to the Applicant's employer that her daughter had been frightened by this incident.
In cross-examination, the Applicant, when asked about the incidents on 10 and 12 September 2014 said that he did not deny that the events had occurred. He said however he was unable to recall very much about the incidents. He was unable to recall, what the explicit questions were that he had asked the female passenger on 10 September 2014.
Not long after the incidents on 10 and 12 September 2014, the Applicant was admitted to hospital reportedly suffering from depression.
On 24 October 2014, the Applicant was interviewed by his employer when he is reported to have said he could not remember what he did. He disclosed to his employer that he suffered from depression. The Applicant's public passenger driver authority was cancelled by Roads and Maritime Services on 17 December 2014.
It is conceded by the Respondent that the conduct in question was not at the high end of seriousness of matters. The Tribunal considers that the circumstances of the matters which led to the refusal of the WWCC clearance on the facts and evidence before it are not the most serious and are at the lower end of the scale of objective seriousness.

[16]

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

The Applicant relied on a brief professional reference dated 10 November 2015 from Dr George Albert, General Practitioner. Dr Albert states he is providing ongoing review and treatment for the Applicant's medical condition including his depression. He says that a factor that may have caused the Applicant's behaviour was that he stopped his anti-depressant medication abruptly which caused him to become "irrational and confused and lacking judgment." Dr George says the Applicant is being followed up by a Psychiatrist and Psychologist. Dr George does not comment specifically on the likelihood of any repetition by the Applicant of the conduct. Dr George did not give oral evidence.
A copy of a discharge summary from Shellharbour Hospital dated 22 September 2014 records that the Applicant was bought into hospital by his wife on 16 September 2016. On assessment it is recorded the Applicant presented as an emotionally closed person, with frail self-esteem, social anxiety, a high degree of neuroticism, few friends and with repressed emotions who derived a sense of well-being from his role of provider. When this was threatened following his loss of job he decompensated and had thoughts of self-harm. He was continued on his usual medications and once the crisis settled he felt better and no longer had thoughts of self-harm.
A report from the Applicant's treating Psychiatrist Dr Nagesh Pai to Dr George, dated 13 October 2014 was in evidence. Dr Pai first saw the Applicant on 7 October 2014 after he was discharged from Shellharbour Hospital following a six day stay. Dr Pai notes the Applicant had been working as a bus driver for over three and a half years "…until there was a customer complaint about his alleged conduct with a female passenger resulting in sudden deterioration in mood with significant impairment in social and biological functioning, excessive pre-occupation with financial stressors and crowding of thoughts and having imminent risk for suicide. A diagnosis of Adjustment Disorder with depressed mood was made…"
The Applicant saw a Psychologist Dr Olga Lavelle on four occasions from 15 January 2015 to 12 February 2015 for treatment for anxiety. The Applicant reported to Dr Lavelle that he had several significant events which have impacted on his mood including the loss of his job. The Applicant reported to Dr Lavelle at his last consultation that his mood had improved.
Also in evidence was a report of Mr Marcelo Di Martino, Psychologist dated 11 March 2016. As at the date of his report he had seen the Applicant for three sessions to provide psychological support. He said that from the information provided in those sessions there were no indicators that the Applicant's behaviour will constitute a threat to children or adults. Mr Di Martino concludes by saying "…I do not see any indicators of likelihood of the incidents being repeated. He is now depressed and under an enormous amount of stress for he feels his good character is under threat."
The Respondent submitted that Mr Di Martino's report should be given limited weight as he is treating the applicant and therefore cannot be regarded as an independent expert. Further, the Respondent notes that Mr Di Martino has not applied any statistical measures to gauge likelihood of risk.
There was evidence before the Tribunal that the Applicant has had treatment for psychological issues dating back to 2012 including a diagnosis of post traumatic stress disorder and an admission to Shellharbour Hospital in 2012 due to suicidal ideation. He sought treatment with a Clinical Psychologist, Ms Sky Steele in 2012 and 2013. Ms Steele reported to Dr George on 14 January 2013 that the Applicant had a significant improvement in his mood and ability to manage his anxiety and anger outbursts and that he would continue with cognitive behavioural therapy.
Clearly if the Applicant's conduct was to occur in the future, the impact would be significant on a victim, either a child or adult victim.

[17]

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

The Applicant seeks a clearance to enable him to seek work as a youth worker. He says in his statement to the Tribunal dated 6 May 2016 that he would like to pass on his knowledge and skills to young people "who may be able to draw something from my life."
The applicant gave evidence that he has attempted to address aspects of his life that may have led to the incidents which caused the refusal of the WWCC clearance. He said he has undergone gastric by-pass surgery and has lost a significant amount of weight. He said he now understands the importance of taking his anti-depressant medication and would not stop this abruptly as he did previously. He believed that stopping his medication was a significant, if not the most significant contributing factor to his the 2014 incidents. He said he will maintain contact with his treating Psychiatrist. He said that at the time of the 2014 incidents he was under a lot of stress and mental fatigue. He feels he is now in a more "positive space" as a result of medication he is taking.
The applicant is currently caring for his parents who he said both have terminal illnesses. At the date of the hearing he was unemployed. He said since the events in question he has suffered great personal shame. He has been unable to participate in his children's sporting activities and other voluntary roles as he used to do.
When asked what impact he thought the events might have had on the victims he said he did not think it would have had any ongoing impact although when pressed he conceded it would not have had a positive impact on them. He went on to say that he sees one of the victims quite regularly around his local area although he has not spoken to her.
The Applicant presented as having a relatively unsophisticated understanding of the need to maintain appropriate professional boundaries as a youth worker. He told the Tribunal that he was aware of the need to maintain appropriate professional boundaries and the importance of this. He said it would be important in the type of youth work he wants to do not to become too close to the youths he was working with and that he would be a carer and not a friend to them. He then gave an example of how he had met a young girl during his work experience placement with TAFE. He said he went to watch her play soccer and when he told her she had played well she burst into tears because he believes no one had ever praised her before.
The Applicant relied upon a reference from one of his teachers at TAFE. It is unclear on the face of the reference whether the teacher was aware of the matters that led to the refusal of the Applicant's request for a WWCC clearance. However, the teacher was aware that the reference was being sought as part of a risk assessment to determine his suitability for child related employment. The teacher says she has worked in social welfare for 25 years and has developed skills in assessing people's practices around young people and children. She says there were no red flags present around the Applicant's observed behaviour. She considers he presents as a person with integrity and commitment to improving the lives of young people at risk.
A TAFE Workplace Learning and Student Evaluation Report dated 19 June 2015 was provided to the Tribunal by the Applicant. This notes that the Applicant displayed sensitivity, understanding and ethical conduct while on placement. He was also noted to have built positive relationships with the residents he came into contact with during his placement as a student youth worker,
The report of Dr George is supportive of the Applicant however he did not perform an actuarial assessment of risk.

[19]

Consideration

In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the Applicant a WWCC clearance, and to decide what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law.
The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the Applicant poses a risk to the safety of children.
Relevantly, a WWCC clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children. It has previously been held by this Tribunal that no conditions may be placed on the issue of a WWCC clearance.
The assessment requirement was triggered by those matters referred to in clause 2 (a) of Schedule 1. Section 14 of the Act requires a risk assessment if any of the matters specified in Schedule1 of the Act apply to the person.
In his evidence the Applicant sought to minimise the impact his actions had on the victims and on the 16 year old girl who witnessed the sexualised conduct by the Applicant with a female passenger when he was on duty as a bus driver. Whilst there were no details available to the Tribunal of the impact on this passenger, it is known that the incident came to the attention of the 16 year old girl's mother who reported the incident. It is also known that the mother of the intellectually disabled young woman reported that her daughter had been frightened by the Applicant's conduct towards her.
The Tribunal takes into account that apart from the 2014 incidents there is no evidence of any other conduct which could be considered adverse to the Applicant. There is no evidence of any misconduct or inappropriate conduct during the Applicant's recent work experience placement through TAFE in a youth organisation. He received a positive reference from one of his TAFE teachers. He is married and has three children and his wife is supportive of him. All of these factors are in the Applicant's favour.
However, whilst it is clear that the Applicant has made some attempts to reduce his risks, including seeking counselling and treatment by a Psychiatrist, the conduct which led to the refusal of the WWCC clearance cannot be said to have occurred in the more distant past. The Tribunal considers there has been insufficient time since the 2014 incidents occurred. The offending conduct only occurred recently and little has changed in the Applicant's life generally since that time. Of concern to the Tribunal is the uncontradicted evidence before the Tribunal that the Applicant currently has significant stressors in his life including the terminal illness of both of his parents and his unemployment. This is on a background of a diagnosis of post-traumatic stress disorder and anxiety for which the Applicant has received treatment. However, the Applicant received treatment for his post-traumatic stress disorder and anxiety prior to the occurrence of the 2014 incidents.
The Tribunal accepts the submission of the Respondent that Mr Di Martino's report should be given limited weight as he has not applied any statistical measures to gauge likelihood of risk. Further, he is treating the applicant and therefore cannot be regarded as an independent expert. The Tribunal is not satisfied that the Applicant has developed the skills to recognise when he is in a situation where is under stress and how to avoid these situations developing or controlling his behaviour when stressed or anxious. The Tribunal notes that with time and ongoing treatment this might change.
The Tribunal is satisfied that although the Applicant was not convicted of an offence in relation to the incidents occurring in 2014, his behaviour, whilst not of the worst kind, is such that it could cause psychological harm to a child and would pose a risk to the safety of children if repeated. He requires the WWCC clearance as he wishes to work as a youth worker. It is goes without saying that some of the children he would encounter in such work would be likely to be highly vulnerable individuals.
Taking all of these matters into consideration the Tribunal is satisfied that in respect of the 2014 incidents, the Applicant's actions are such that they could cause psychological harm and adversely affect the welfare of a child and pose a risk to the safety of a child. The Tribunal is satisfied that in behaving as he did at the time of the incidents and in his subsequent failure to acknowledge fully the possibility of harm to the victims of his conduct and the child who witnessed his behaviour, the Applicant has demonstrated that the risk of such harm from similar acts in the future is a real and appreciable risk that is greater than that posed by any adult in respect of a child.

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Judgment (21 paragraphs)

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Legislation Cited (4)

Cases Cited (13)