CHB v Children's Guardian

Tribunal's jurisdiction and function

1. The Tribunal has jurisdiction to review the decision of the Children's Guardian pursuant to s 27(2) of the Act, ss 55 and 63 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63(1)).

Applicable law

1. Section 4 of the Act provides that 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."
2. Section 23(1) of the Act provides that the Children's Guardian must cancel a person's working with children check clearance if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children. The applicant is not a disqualified person (see Act, s 18(1)) so that the relevant question is whether the applicant poses a risk to children's safety.
3. When determining an application, under s 27(2) of the Act, for review of a cancellation decision, the Tribunal is to have regard to the matters set out in s 30(1) of the Act. Section 30(1) provides: 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.
4. The application of s 30(1A) of the Act is dealt with below.
5. Neither party bears an onus of proof in proceedings for review under s 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]; CFJ v Childrens Guardian [2016] NSWCATAD 62 at [20]-[21] and [135].

Application to adduce further evidence

1. After the hearing, on 13 May 2016, the Children's Guardian filed material which had been summonsed from the applicant's treating psychologist, Mr de Robillard, including notes of his sessions with the applicant, and sought to rely upon it as new evidence. The parties had been directed at the hearing to file and serve closing submissions after the hearing, but no directions had been made for the filing of further evidence.
2. As the Court of Appeal made clear in Bale v Mills [2011] NSWCA 226 at [57] to [59], parties do not have a right to place further material before a court after an appeal without leave. In our view, the same principle applies to the filing of further evidence after a hearing in a tribunal. The proper course is "for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court" (Bale v Mills at [59]). Although the Tribunal has less formal procedures than a court, its decisions are intended to be "timely, fair, consistent and of a high quality" (NCAT Act, s 3(e)) and it is obliged to comply with the rules of procedural fairness. The filing of additional evidence without leave threatens to subvert these objectives and principles.
3. The applicant submitted that the Tribunal should not take into account the summonsed material because a failure to adduce the new evidence would not cause a substantial miscarriage of justice, the new evidence has not been tested in cross examination and the applicant has neither the resources nor the opportunity to adduce evidence in response. The applicant also submitted that admitting the evidence would run contrary to the way the Tribunal should generally proceed, referring to s 38(5)(c) of the NCAT Act. That provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
4. The Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (NCAT Act, s 38(2)). The Tribunal is also required "to decide what the correct and preferable decision is having regard to the material then before it" (Administrative Decisions Review Act, s 63(1); see also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419). The injunction to have regard to the material before the Tribunal does not, however, mean that the Tribunal is not permitted to exclude evidence if there is a proper basis for doing so.
5. One relevant factor is that this is a merits review proceeding in a protective jurisdiction. The "safety, welfare and well-being of children" is the paramount consideration in the operation of the Act (Act, s 4) and, if the new evidence is relevant and significant to the issue of whether the applicant poses a risk to children's safety, this is an important indicator that the Tribunal should take that evidence into account. Administrative decision-makers are "generally obliged to have regard to the best and most current information available" and tribunal decisions should generally be made according to the most up-to-date material available at the time of the decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286, Kirby J at 299 [41] and 302 [50]).
6. We have examined the material filed by the respondent on 13 May 2016, including the notes of Mr de Robillard. We do not consider that they are of any great significance to the risk assessment the Tribunal has to conduct. If we were of a different view, we would relist the matter to give the applicant an opportunity to test the new evidence and/or adduce evidence in reply, so as to comply with the requirements of procedural fairness (see Cominos v Di Rico [2016] NSWCATAP 5 at [65] and Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 159 at [57]-[63]). However, given that the material is not necessary to do justice in this case, the Tribunal's obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings tends against admitting the evidence (see NCAT Act, s 36(1)). In these circumstances, we have decided to reject the evidence filed by the respondent on 13 May 2016.

Consideration

1. As indicated above, the Tribunal is conducting a review of the decision of the Children's Guardian to cancel the applicant's clearance and must make the correct and preferable decision. It is required to take into account the matters referred to in s 30(1) of the Act and it is also relevant to consider the provisions governing the cancellation of the applicant's clearance.
2. The Children's Guardian was required to conduct a risk assessment to determine whether the applicant poses a risk to the safety of children (Act, s 15(1)). In doing so, the s 15(4) factors were relevant (which are similar to the s 30(1) factors). The Children's Guardian was required to cancel the applicant's clearance upon forming a state of satisfaction that she posed a risk to the safety of children (GIPA Act, s 23(1)).
3. Accordingly, in reviewing the cancellation decision, the Tribunal must also consider whether the applicant poses a risk to the safety of children. As the parties acknowledged, the test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].
4. In determining whether the applicant poses a risk to the safety of children, we have considered each of the s 30(1) factors in turn. Each factor is dealt with below.

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 (s 30(1)(a))

1. The applicant is not a "disqualified person" (see Act, s 18(1)) and she has not had an interim bar imposed upon her (Act, s 17). Her clearance was not strictly "refused"; rather, it was cancelled (see ss 8(3)(c) and 13A(1), where the terms "refused" and "cancelled" are used as alternatives). Accordingly, strictly speaking, s 30(1)(a) has no application. Nevertheless, the applicant has conceded that the seriousness of the s 61 offence is relevant to the Tribunal's consideration of her application (applicant's submissions of 8 April 2016 at [23]). We agree. The s 30(1) factors are mandatory considerations, but they are not the only matters to which the Tribunal may have regard. Further, the seriousness of the s 61 offence is something the Children's Guardian was entitled to consider when conducting the risk assessment (see s 15(4)(a)). Accordingly, we have considered the seriousness of the s 61 offence.
2. The parties differ as to the circumstances of the s 61 offence and as to its seriousness.
3. The applicant's evidence is that, on 15 June 2014, she was attending a police station for a "changeover" of her 4 year old daughter. That is, she met her daughter's father at the police station, from whom she was separated, for the purpose of transferring her daughter into the care of her father.
4. While the applicant was waiting, the applicant says her daughter told her that she was going to "suck daddy's ding ding" ("ding ding" being the word the child used for "penis," according to the applicant). The applicant then pinched her daughter on her back through her cardigan and top.
5. The applicant was later shown pictures showing that her daughter had a red mark and what the applicant termed "a minor skin abrasion" on her back. The applicant attributed this to an earlier incident in the bath where her daughter had grazed her back against the tap spout.
6. The applicant submits that common assault is arguably the least serious of crimes of personal violence (whilst appreciating that all offences of personal violence are serious). She also submits that her daughter's injury was relatively minor and her intention was to reprimand the child. The applicant says that the offence was a pinch and there was no apparent serious or lasting harm to the daughter.
7. The Children's Guardian relies upon a statement of Constable Penny Snars dated 28 August 2014 and a statement of Constable Manharsinh Vaghela dated 16 November 2014 made in the criminal proceedings against the applicant in the Local Court. Constable Snars says she was in the police station on 15 June 2014 and saw the applicant push her daughter, who was sitting on the counter of the police station, along the counter, using enough force to push her approximately one metre towards her father. Constable Vaghela also stated that she saw the applicant push her daughter along the counter.
8. Constable Snars states that the father of the applicant's daughter lifted up her shirt and the Constable observed a large red mark on her back, approximately 10 centimetres in diameter.
9. The Children's Guardian submits that the offence was serious and that the applicant's conduct was entirely inappropriate, callous and criminal.
10. The applicant submits that, in light of the fact that the Local Court's factual findings only concerned the pinch, there should be no implication that she did anything wrong by pushing her daughter along a bench. In our view, the Tribunal may nevertheless take this matter into account, although it may not strictly be relevant to the seriousness of the offence.
11. We find that the offence, whilst serious, was nevertheless at the lower end of the scale of seriousness. The circumstances of the offence which add to its gravity include that it was committed against a child, that (on the applicant's evidence) it was a response to a child's revelation of possible sexual abuse by her father and that the applicant showed no concern for her daughter at the time. Responding to a child's reference to possible sexual abuse with physical punishment rather than concern is likely to discourage the child reporting sexual abuse and thus expose the child to further risk.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))

1. The offence occurred just over two years ago.
2. The applicant says that her relevant conduct since the time of the offence includes visits to psychologists. She has seen the psychologist Alfred de Robillard who, she submits, has taught her "coping strategies," being more measured and rational ways to listen to and communicate with her daughter. Her undisputed evidence was that, at the time of the hearing, she had seen Mr de Robillard six times since May 2015 (in May, August, November and December 2015 and in February and March 2016).
3. The applicant told Ms Caroline Hare, a forensic psychologist who provided a report to the Tribunal about the applicant on 14 January 2016 ("Hare report"), that she was willing to continue engaging in treatment if this was considered necessary, but she did not believe she required ongoing treatment.
4. The circumstance that the applicant has consulted a psychologist about dealing with her daughter is a positive development and something which the Tribunal considers may reduce the risk the applicant poses to children. However, it is of some concern that she considered, when speaking to Ms Hare, that six sessions over nine or ten months was sufficient to address her issues (which include having been abused as a child). This is contrary to Ms Hare's evidence that the applicant needs ongoing therapy. Further, as the respondent submitted, the applicant's evidence is that these sessions were not primarily directed to therapy for her own benefit but concerned how she dealt with her daughter.
5. The Tribunal also accepts the respondent's submission that the nature and number of the applicant's sessions with Mr de Robillard are insufficient for her to have meaningfully addressed her emotional dysregulation and underlying issues. Ms Hare's report indicates that the applicant requires further intervention to mitigate current risks and the Tribunal accepts her evidence.

The age of the person at the time the offences or matters occurred (s 30(1)(c))

1. The applicant was 43 years old at the time of the s 61 offence. Her age is not a mitigating factor (as it might have been, if the offence had been committed when she was very young).
2. The applicant submits that her age at the time of the offence combined with the surrounding circumstances suggests that it was out of character and that it is highly unlikely such an incident would occur again. The Tribunal is not prepared to draw this inference from the applicant's age and the surrounding circumstances, as it considers there is no proper basis to do so (see Howe v NSW Farmers' Association [2010] NSWADT 101 at [94], as applied in State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [80]).

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 (s 30(1)(d))

1. The applicant's daughter was four years old at the time of the offence. The daughter was in a vulnerable position, as the applicant's daughter and due to the circumstances in which the offence occurred (a handover between mother and father). On the applicant's evidence, she was also emotionally vulnerable for another reason, having just revealed information which suggested that her father was sexually abusing her.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s 30(1)(e))

1. The applicant was 39 years older than her daughter at the time of the offence.

Whether the person knew, or could reasonably have known, that the victim was a child (s 30(1)(f))

1. The applicant knew that her daughter was a child.

The person's present age (s 30(1)(g))

1. The applicant is now 45 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s 30(1)(h))

1. The Children's Guardian submits that the applicant has a long history of dishonesty and deception offences, the most recent being in 2009. The Children's Guardian also relies upon a complaint made by a co-worker in 1994 that the applicant had indecently assaulted him four times by grabbing his testicles and squeezing them.
2. The applicant's criminal history record is in evidence. It shows that she has been convicted of a variety of offences since 1997 including obtain money etc by deception (1997, 1998 and 2008), destroy or damage property (2000) and unauthorised function w/i serious offence (2008). She was sentenced to imprisonment for 9 months for the 2008 offences.
3. The applicant says of the 1997 offence that a discount store alleged that she had put "clearance" stickers on vases which she attempted to purchase at the reduced price on the stickers, and that she was charged and convicted. She does not appear to accept that she was guilty because her evidence is that there were in fact "clearance" stickers on the vases.
4. The applicant also says of the 1998 offence that about that time she signed credit card slips for items a male friend bought, using a credit card in a woman's name. She says she pleaded guilty to this offence. The applicant also states that the offence in 2000 (destroy or damage property) occurred when she knocked a can of Pepsi which fell on her partner's TV.
5. Her evidence concerning the 2008 offences is as follows. She says she was terrified of her ex-partner and attributed a series of incidents to him, such as her shop and home being broken into and the smashing of her car windows. Her evidence is that she was approached by a man who said that, if she did a job for him, he would stop her ex-partner from creating problems for her. The man asked her to withdraw money from ATMs and give him the money, which she did, presumably using a stolen card.
6. We do not take into account the complaint about the alleged indecent assault by the applicant on the applicant's co-worker in 1994. The applicant denies that she assaulted him. The name of the alleged victim has not been provided to the Tribunal and the police record indicates that there was insufficient evidence to proceed with criminal charges. In these circumstances, the evidence about the subject of the complaint is not probative. In addition, it is not part of the applicant's criminal record for the purposes of s 30(1)(h) of the Act, so that provision does not require the Tribunal to consider it.
7. The Children's Guardian also seeks to rely, in relation to s 30(1)(h), upon apprehended violence orders made against the applicant. The term "criminal record" is not defined in the Act. Neither party has made any submissions as to whether the term includes apprehended domestic or personal violence orders made against a person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) or earlier legislation. Whilst it is our preferred view that these orders do not form part of a person's criminal record, and are thus not mandatory considerations under s 30(1)(h), we are nevertheless of the view that the making of such orders is a relevant factor to consider in assessing risk.
8. The Children's Guardian has not identified the circumstances surrounding the particular orders on which the Children's Guardian relies, referring in its submissions only to a list of such orders. The applicant submits that the history of apprehended violence orders reflects her history as a victim of domestic violence.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

1. The Children's Guardian submits that the applicant lacks insight into the impact her conduct has on others, including children. The Children's Guardian refers to a Department of Family and Community Services (FACS) assessment record of 17 August 2015, where it is stated that the applicant "has no insight on the impact of her comments on [her daughter] or others around her" and that she is "not able to see the impact on [her daughter's] emotional health."
2. The Children's Guardian says that the applicant's lack of insight and lack of capacity to respond appropriately to stressful situations is not limited to her dealings with her own children and relies upon warning letters the applicant received from the family day care provider with which she was registered. In particular, a warning letter of 26 February 2016 expressed concerns about the applicant's conduct at an unscheduled visit made by a co-ordinator from the family day care provider, Ms Samuels. This included the applicant becoming defensive, confrontational and raising her voice in front of the children in her care, following feedback provided by Ms Samuels concerning the applicant's health, safety and hygiene practices.
3. The managing director of the family day care service with which the applicant was registered provided written and oral evidence in the proceedings. She stated in an affidavit filed on 11 April 2016 that she has received "excellent feedback" from the parents attending the applicant's family day care service.
4. In relation to the two warning letters, the managing director stated that the applicant and Ms Samuels have a personal dislike for each other, that Ms Samuels had raised issues in a way which was not productive and that she may be more critical of the applicant than of other educators. It was the managing director's view that the warning letters were issued unfairly.
5. In regard to the likelihood that the applicant will repeat the offences or conduct, the Children's Guardian also points to the record of a comment the applicant made to a risk assessor from the Office of the Children's Guardian on 7 July 2015, that she would pinch her daughter again. This is countered to some extent by the applicant's evidence that her thinking has changed since that time, aided by her sessions with Mr de Robillard.
6. The applicant says that she has cared for children since 1994 and in that time FACS has substantiated no allegations of harm to children by the applicant. She submits that repetition of the offences or conduct is unlikely and refers to Mr de Robillard's view that she is now "clearer in her thinking."

Any other matters that the Children's Guardian considers necessary (s 30(1)(k))

1. The Children's Guardian relies upon the following matters identified in the Hare report: 1. the applicant expressed the opinion that the incident of pinching her daughter was blown out of proportion and, in Ms Hare's view, this opinion evidences a level of minimisation; 2. the applicant lacked any real insight into the impact the s 61 offence would have had on her daughter; 3. the applicant's reporting of her therapy history was inconsistent with the history reported to Ms Hare by one of the applicant's former therapists, which underlined the applicant's reduced insight; 4. the applicant was highly defensive in relation to particular shortcomings; 5. the applicant poses an increased susceptibility to impulsivity, including a risk of aggressively acting out, in situations of a personal nature whereby her emotions are elevated and she struggles to regulate them effectively, meaning that her risk of harm is greater towards her own children than to others; 6. the risk to non-biological children in the applicant's care is low, but the applicant requires further intervention to mitigate the current risks before Ms Hare could conclude that her risk to all children is minimal.
2. The Children's Guardian submitted that, in light of Ms Hare's report and the second formal warning letter from the day care service with which the applicant was registered, the Tribunal could not be confident that the applicant is capable of managing her emotions and that she does not pose a risk to the safety of children.
3. The applicant submitted in reply that Ms Hare's evidence was largely positive and that, on the whole, it could not be said that Ms Hare considered that the applicant posed a significant risk to children.
4. The Children's Guardian also relied upon what it described as the applicant's "significant and serious history of FACS involvement in relation to [her] five (5) children dating from 2001 until August 2015" as a factor relevant to the question of whether the applicant poses a risk to children.
5. The Children's Guardian has not pointed to any particular FACS documents which demonstrate that the applicant poses a risk to children. However, the Children's Guardian notes that concerns have been reported that the applicant has been both a perpetrator and a victim of domestic violence; that she has caused a risk of and actual psychological and physical harm to children; and that her mental health and emotional state have been unstable.
6. The FACS material provided to the Tribunal includes risk of harm reports. One of these, dated 24 February 2012, states that a caller reported that the applicant had hit and punched the caller in the face in front of her daughter (who was then one year old), after an argument with her partner. (It appears that the partner may have been the caller). According to the caller, the applicant then hit her daughter on the face with an open hand and was hitting hard enough to jolt her daughter's head. The caller also saw the applicant hit her daughter's head on to the door about four times. The caller said that a similar thing had happened previously.
7. An assessment record of the department from October 2008 indicates that, prior to being incarcerated, the applicant left her children of 3 years old and 16 months old in the care of their nanny for most hours of the day and even overnight for long periods at a time. A departmental "case review tool" report from 2009 reports that the applicant was offered to have contact twice a week with the children, but this was reduced to contact once a week due to the applicant's non-commitment. The report indicated that the mother had left the children for long periods of time in the past and not met their needs.
8. A report from 2004 indicates that the applicant and the father of two of her children hit each other in front of the children. Another report from the same year indicates that the applicant's children disclosed that she hit them and verbally abused them. A report by the children's stepmother from 2005 indicated that the children had told her that the applicant sometimes used "the buckle end" of a belt to hit the children, that the applicant had pulled her daughter's hair and that her daughter's nose had once bled when the applicant pushed her head against a wall.
9. None of these allegations was put to the applicant in cross examination and no witnesses were called to give evidence about the alleged events. The applicant says that the allegations in the FACS documents were not substantiated and that repetition of any of the conduct in the context of domestic abuse is unlikely (presumably at least partly because the applicant is single).
10. The respondent relies upon the decision of BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 as setting out the correct approach to fact-finding and the ultimate question for the Tribunal in the risk assessment process. In that case, Beech-Jones J said at [33]: … the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.
11. It is to be noted that, in BKE, unlike in this case, the applicant had an onus to establish that he was not a risk to children because he was seeking an enabling order (see Act, s 28(7)). However, the case is relevant to review proceedings insofar as it establishes the principle that the Tribunal may conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child, even where it is not satisfied that an allegation of abuse is substantiated.
12. In our view, the FACS material should be given limited weight, given that it contains hearsay, the reporter of concerns is often not identified, and the allegations were not put to the applicant. Whilst BKE is authority for the proposition that the Tribunal may find that there is risk to a child in the absence of a finding that there has been abuse of the child, it does not, in our view, transform evidence of little probative value into evidence to which the Tribunal should attribute weight. Rather, the Tribunal is required to make its findings on the basis of rationally probative evidence: see BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [118]; BKE v Children's Guardian (No. 2) [2016] NSWCATAD 22 at [31]; CNR v Children's Guardian [2016] NSWCATAD 196 at [16]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [63].
13. The applicant does not dispute that her third and fourth children were placed in out of home care and under the parental responsibility of the Minister in 2009. The applicant says that this occurred because she was being held on remand after being charged for the credit card offences and not due to any concerns about the children in her care. She also says that after she was released from gaol, parental responsibility was given back to the applicant and the children's father. She says that the children spend alternate weekends with her.
14. Another incident on which the respondent relies as being relevant to risk concerns a telephone conversation the applicant had whilst caring for children.
15. Material from the first family day care service for which the applicant worked indicates that, in late March or early April 2014, the applicant took part in a 40-minute telephone conversation with Detective Munro of the Parramatta Joint Investigation Response Team whilst looking after family day care children in her care. It also indicates that Team's opinion that the content of the conversation was sensitive and inappropriate for children to hear and that the detective could hear children in the background (suggesting that the children could hear the conversation). The conversation concerned matters including the applicant's daughter's sexualised behaviour and allegations made by the applicant of sexual abuse of her daughter by her daughter's father.
16. A file note from that family day care service dated 2 April 2014 indicates that, when a person from the service spoke to the applicant about this incident, she said the children in her care definitely would not have been able to hear her. The file note also states that the applicant would not admit that the door to the room in which the children were present was closed. She said that the longest call she made was about eight minutes.
17. Under cross examination, the applicant said that the telephone conversation did not last 40 minutes. She said she went backwards and forwards between the children and the telephone every few minutes. According to the applicant, two of the children were strapped in high chairs and there were sliding doors between the room in which the telephone was located and the room in which the children were located. The applicant also said that part of the conversation was taken up with the detective listening to a recording of her daughter (meaning that she did not need to be present).
18. When asked by the Tribunal about whether there was a risk leaving the children unattended in another room while she was on the telephone, the applicant replied that she went back and forth every few minutes. She did not accept that there was a risk.
19. As for the sensitive nature of the conversation, the applicant said that she spelled out certain "rude" words so that the children could not comprehend. She said that the children were 15 metres away in a different room, that two of them were babies in high chairs and one was a 2 year old who did not speak English. The applicant said she would open the sliding doors when she went into the room where the children were.
20. Finally, the Children's Guardian relied upon material from 2014 which indicated that the applicant had not informed her then employer (the first family day care service for which she worked) about the incident in which she had pinched her daughter, or the charge of common assault. The family day care service found out about these matters from a third party. A suspension letter from that service to the applicant, dated 3 September 2014, informed the applicant that it had come to the service manager's attention that she had failed to inform the service that she had been charged with common assault.
21. The applicant was asked questions about the first family day care service for which she worked in cross examination. When asked whether she had disclosed her criminal history to that service, she said she did not know. She stated in her affidavit that the service had suspended her due to the pending criminal charge, a statement inconsistent with the suspension letter (which indicated that the suspension was due to failure to disclose the charge). When asked about this, she did not answer the question. When asked why she did not inform the service about the pending criminal charge, she said it was a "private matter."

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

1. The applicant has outlined evidence she wishes the Tribunal to consider under s 30(1)(j). Some of this evidence responds to adverse evidence relied upon by the respondent. The information given by the applicant includes, in summary, that: 1. she is devoted to her work; 2. she has not used any physical force on her daughter since the s 61 offence; 3. she did not think she was required to disclose the s 61 offence because it occurred outside of her family day care business; 4. she kept an ear and an eye out for the children in her care whilst speaking on the telephone to Detective Munro (in a different room from those children) by going back and forth to them; 5. she did not conduct improper conversations in the hearing of the children in her care, as she spelt out improper words so the children could not understand what she was saying; 6. she accepts she should have told the first family day care service for which she worked about the s 61 offence; 7. no issues of real concern were identified in the warning letters issued to her by the second family day care service for which she worked; and 8. Ms Samuels (who wrote the warning letters) was difficult to deal with and her criticisms of the applicant were unfair.
2. The applicant has given evidence that she now understands that her reaction to her daughter on 15 June 2014 "was completely inappropriate" (affidavit of 27 November 2015 at [77]).

Risk to children's safety

1. As already indicated, the Tribunal must determine whether the applicant poses a risk to the safety of children in the sense of a risk that is greater than the risk of any adult preying on children, taking into account the matters enumerated in s 30(1) of the Act (Act, s 23(1)). The term "safety of children" is not defined, but includes the sexual and physical safety of children, and probably also their safety from conduct that is likely to cause psychological or emotional harm (see BVM v Children's Guardian [2016] NSWCATAD 65 at [9]-[15] and [67]; BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30]).
2. The applicant's criminal history, with the exception of the s 61 offence, consists largely of property related offences and dishonesty offences. The applicant submits that she was convicted of dishonest conduct occurring in the company of a dominant male partner in the context of domestically violent relationships in which she was the victim. The applicant says that her criminal history does not show that she could be at risk of harming children in her care. She submits that her role in the offences demonstrates behaviour that is the opposite of the type of aggressive or impulsive behaviour one might expect for a person who is at risk of harming children.
3. In our view, the dishonesty offences have some relevance to the risk the applicant poses to children in that they demonstrate a willingness to deceive or hide things from others, which is consistent with other behaviour the applicant has exhibited. This means that, when placed in situations of trust with children, there is a risk she will conceal matters which she perceives to be adverse to her own interests, at the expense or potential expense of the children's interests or safety. The offences of which the applicant was convicted were quite serious (the 2009 offences resulting in a gaol term of 9 months) and were clearly pre-meditated. The commission of these offences had a significant impact upon the applicant's own children because, when she was sentenced to imprisonment (as she could have anticipated), she was unable to look after them.
4. The applicant's account of the dishonesty offences was, in our view, unconvincing. She did not accept responsibility for the 1997 offence committed in the discount store. Her explanation of the 2000 offence, being that she knocked a can of Pepsi on to her partner's television, was not persuasive. Clearly this explanation was not accepted by the court at the time, because if it were the mens rea for the offence would not have been established. The explanations for the other offences attempted, at least in part, to shift blame to a male partner or friend. The inability to fully accept responsibility for past offences increases the risk that she will behave deceptively again.
5. We find that the applicant has been less than candid in other contexts involving children. The evidence indicates that she failed to disclose her criminal history to the first day care service for which she worked upon commencing employment with that agency, she has admitted that she failed to disclose to that agency that she had been charged with common assault, and she has given inconsistent accounts of the length and nature of the telephone conversation she had with Detective Munro, for the purposes of putting herself in a good light. As the respondent submitted, the applicant was an unimpressive witness, often evading questions and/or answering them in a non-responsive manner. Her answers often appeared to be designed to present her past conduct as positively as possible, even where this involved misrepresenting that conduct.
6. The applicant's lack of consistency with the truth extends to her dealings with psychologists.
7. Ms Hare reported that the applicant claimed to have fabricated a history provided to another psychologist in 2009, Ms Duffy. Ms Duffy wrote a report which the applicant relied upon in the criminal proceedings. Ms Hare reported that the applicant told her "that what she had told Ms Duffy was 'not accurate', noting that her ex-husband … 'probably told [her] to say all that' as a means of gaining a reduced custodial sentence due to mitigating circumstances" (Hare report at [25]). Ms Hare identified a number of inconsistencies between accounts previously made by the applicant to others and what the applicant currently claimed to be true, including that she had attempted suicide and that she had been medicated for auditory hallucinations, which she now said was false.
8. The applicant is clearly prepared to depart from the truth when it suits her purposes, including in respect of serious matters which may impact upon her mental health and her capacity to care for children.
9. The applicant's tendency to conceal the truth when it reflects badly upon her means that she is less likely to report incidents and information involving herself which may put children at risk. The dishonesty offences also display a willingness to defy authority and the law, when she considers this to be in her interests. Again, in some situations, this could place children at risk.
10. The applicant's lack of insight into the impact of her conduct on others is a factor going to risk. The Tribunal accepts that she has gained some understanding of the impact of her behaviour on children through her sessions with Mr de Robillard. However, this is insufficient to address the problem entirely. We accept the evidence contained within Ms Samuels' warning letters that the applicant raised her voice and acted defensively within the hearing of children in her care. Although the applicant denied in oral evidence that she had been defensive, and notwithstanding that the managing director of the family day care service considered the letters written by Ms Samuels to have been issued unfairly, this conduct is consistent with her behaviour as a witness and with Ms Hare's report about her.
11. We accept also the respondent's submission that the evidence establishes that the applicant's difficulty in controlling her anger and/or frustration is not limited to her own family. Whilst the sessions the applicant has attended with Mr de Robillard are no doubt valuable, the Tribunal considers that there has been insufficient attendance to result in lasting, substantial change. The Tribunal accepts Ms Hare's opinion that the applicant requires ongoing regular psychological intervention aimed at exploring and moderating her core beliefs and underlying assumptions relating to herself, others and the world before her risk to all children could be considered minimal (at [48] and [54]).
12. Ms Hare reported that the applicant "generally evidenced limited psychological insight" (Hare report at [32]). Inconsistencies between the opinion expressed in 2016 by another psychologist, Ms Olivier, that the applicant needed ongoing support and therapy, and the applicant's own report that Ms Olivier had told her that everything was "la-di-da", were said by Ms Hare "to further underline [the applicant's] reduced insight" (Hare report at [35]).
13. The sessions with Mr de Robillard were also limited in that they focused on the applicant's management of her daughter, and did not deal with other of her issues. The applicant has stated in an affidavit of 8 April 2016 that the sexual assaults committed upon her as a child are difficult to address, but that she is working up to raising these issues in her therapy. However, the Tribunal is not persuaded that the applicant has in fact dealt with this in therapy, or with other issues which contribute to her emotional dysregulation. We note and accept Ms Hare's evidence that the applicant has largely applied avoidance coping to deal with her experiences of sexual abuse, that she has not effectively resolved her experiences and that she remains significantly impacted by the trauma of her past.
14. One of the issues the applicant has had in the past involves violent conduct towards others. Whilst the Tribunal does not have reliable evidence about the circumstances in which allegations were made to FACS about the applicant's violent conduct, or about the circumstances of the apprehended violence orders made against her, the Tribunal accepts that the material, taken together, establishes that the applicant has exhibited violence towards others over the course of her adult life. Although some of the conduct may reflect the applicant's history as a victim of domestic violence, as the applicant submits, we do not accept that this eradicates any risk of her behaving violently in the future.
15. We give some weight to the applicant's evidence that she would not and no longer does physically discipline her own children or other children. However, we accept that she told a risk assessor from the Office of the Children's Guardian that she would pinch her daughter again as recently as 7 July 2015, and that she told Ms Hare in December 2015 or January 2016 that the incident of pinching her daughter has been blown out of proportion. In a letter dated 27 July 2015 and provided to the Children's Guardian by a clinical psychologist, Mariki Olivier, the psychologist reports that, according to the applicant, the allegations of pinching her daughter during a changeover "are not true and have been taken out of context." Given that the applicant told Ms Hare that information she provided to a psychologist in 2009 was fabricated, and in light of the evidence just referred to, we are not confident that she in fact believes that physically disciplining her own children or other children in her care is unacceptable or "completely inappropriate". There is a risk she would assault a child again if placed in a situation where she felt emotionally challenged.
16. The Tribunal accepts Ms Hare's evidence that the applicant is susceptible to impulsivity, including a risk of aggressively acting out, when her emotions are elevated, and that she struggles to regulate them effectively. Whilst Ms Hare expressed the view in her report that the applicant did not pose a risk in the context of working within the childcare industry, Ms Hare also expressed the view that she posed a moderate risk to the emotional and possibly to the physical safety of her biological children. In oral evidence, Ms Hare accepted that the applicant could pose a risk of emotional harm to children in a residential care environment where she has personal relationships with the children.
17. We note also that the applicant's focus on her own issues has, in some contexts, distracted her from the care of children in ways which have created a risk to their safety. The telephone conversation with Detective Munro, for example, caused her to leave two children in high chairs in a room in which she was not present for (at least) several minutes at a time. Further, the reports from the second family day care service for which the applicant worked indicate that she was often texting on her mobile telephone whilst responsible for other people's children, and that she did not provide adequate supervision to them.
18. The Tribunal's task is not to consider whether the applicant poses a risk only to children she has care of as a day care educator; rather, it is a broader task of assessing whether the applicant poses a risk to children's safety generally. As the respondent has pointed out, a working with children check clearance would enable the applicant to work with children in a range of contexts, including as a foster carer, where her control over her emotions is likely to be reduced. The applicant's evidence indicated that she engaged in some blurring of the distinction between professional and personal relationships with the children in her care, attending outings with them and their families on weekends. As Ms Hare has confirmed in her oral evidence, this makes the potential for emotional dysregulation in relation to these children greater and thus increases the risk she poses to these children.
19. There is no evidence to suggest that the applicant poses a risk to the sexual safety of children. The evidence discussed above, however, satisfies us that she poses a real and appreciable risk to the physical safety of children, in the sense of a risk that is greater than the risk of any adult preying on children. We note, however, Ms Hare's evidence that with appropriate therapy, such risk could be minimised.
20. As we are satisfied that the applicant poses a risk to the safety of children, the correct and preferable decision is to affirm the decision of the Children's Guardian to cancel her working with children check clearance.

Does s 30(1A) apply to these proceedings?

1. Having found that the applicant poses a risk to children, it is not strictly necessary to consider the application of s 30(1A). This only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children. It could only make such an order if not satisfied that she poses a risk to the safety of children. As with the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.
2. Notwithstanding this, we have decided to consider the application of s 30(1A) in the present case, for two reasons. The first is that the parties provided detailed submissions on the applicability of the provision. The second is that, if we are wrong in our conclusion that she does pose such a risk (or if we have erred in our reasoning to that conclusion), it is helpful for us to express a view as to the factual matters which would then arise under s 30(1A).
3. Subsection 30(1A) was inserted into the Act by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015. That subsection provides: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
4. Clause 16 of Sch 3 to the Act provides that "[s]ections 15 and 30, as amended by the amending Act [being the Child Protection Legislation Amendment Act 2015 (NSW)], do not apply to an application that was made before the amendment of the section concerned."
5. The amendment made to s 15 is in similar terms to that made to s 30, but applies at an earlier stage of the process. Section 15 provides for the Children's Guardian to conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children, in certain circumstances. Subsection 15(4A), inserted by the Child Protection Legislation Amendment Act, provides: (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination.
6. As the applicant has noted, s 15(4A) applies only in respect of "an applicant" and not in respect of a holder of a clearance. Section 15(1), on the other hand, refers both to the conduct of a risk assessment of "an applicant for a working with children check clearance" and "the holder of a clearance."
7. The respondent submitted that, where an application for a clearance has been made prior to 2 November 2015, that application, together with any application for review made to the Tribunal, are to be dealt with under s 30 in its unamended form. That is, the respondent submits that s 30(1A) does not apply to these proceedings. The applicant does not take a firm position on the issue.
8. The first question to consider is what is meant by "application" in cl 16 of Sch 3 to the Act. As the respondent acknowledges, it is unclear whether the word refers to an application for a clearance or an application to the Tribunal, or both.
9. There is a presumption, albeit one that is easily displaced, that the same meaning should be given to a word which is used consistently throughout a statute: Morgan v Davis (1962) 79 WN (NSW) 460 at 463 per Wallace J. Clauses 15 and 18 of Sch 3 also use the word "application" and it is clear from the context that the word refers to an application to the Children's Guardian for a working with children check clearance in those clauses. As clause 16 was enacted at the same time as clauses 15 and 18 and is proximate to them, there is a presumption that the word "application" has the same meaning in clause 16.
10. The word "application" in clause 16 could refer to an application for a clearance, both in the context of s 15 and in the context of s 30. Section 15 can only apply to an application for a clearance (and not to an application to the Tribunal). Section 30 can apply where a person has made an application for a clearance which has been refused by the Children's Guardian, that refusal being the subject of review by the Tribunal. Alternatively, the word "application" in clause 16 could refer both to an application for a clearance (in respect of s 15) and to an application to the Tribunal (in respect of s 30).
11. Ultimately, it is not necessary to decide this because there was no application for a clearance on foot, nor had an application to the Tribunal been made, at the time of the amendment to s 30. Rather, the Children's Guardian had commenced the process of cancelling the applicant's clearance by inviting submissions from the applicant, but had not yet done so. Accordingly, cl 16 of Sch 3 to the Act does not apply in the circumstances of this case.
12. The respondent's position is that considerations of fairness militate against the retrospective operation of s 30(1A) of the Act because there is ambiguity in the meaning and application of cl 16 of Sch 3, there is a clear intention on the part of the legislature that the Act not have retrospective operation, and there exists a presumption against a statute operating retrospectively (Fisher v Hebburn Ltd (1960) 105 CLR 188, Fullagar J at 194).
13. There is a question, however, as to whether the application of s 30(1A) to a review of a cancellation decision made after the subsection came into effect is, in fact, retrospective. A statute which provides that as at a past date the law shall be taken to have been that which it was not has a retrospective operation. However, the creation by statute of further particular rights or liabilities with respect to past matters or transactions does not make that statute retrospective: see Baker v R (2004) 223 CLR 513 at [30]; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 309 [57]; Minister for Immigration v Roberts [2011] FMCA 77 at [16]-[17].
14. In La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Federal Court), an Act had been amended to create a power to cancel a fishing boat licence. The Minister cancelled the applicant's licence on the basis of a conviction which occurred before the new section came into existence, and the Administrative Appeals Tribunal upheld the cancellation. One ground of appeal to the Federal Court was that the power did not apply retrospectively, so it was impermissible to take into account a conviction which occurred before the power was created. The court found that the cancellation order did not have retrospective effect simply because it relied upon conduct that occurred before the power existed (see Toohey J at 26).
15. The change to the law made by s 30(1A) of the Act is, in our view, analogous to the change to the law made in the case of La Macchia. It altered the Tribunal's powers to cancel what is in effect a licence to work with children, just as the law in La Macchia created a power to cancel a licence. The insertion of s 30(1A) did not change rights or liabilities with effect prior to its commencement.
16. Nor are we persuaded that s 30 of the Interpretation Act 1987 (NSW), to which the respondent referred, applies in the present situation. Section 30(1) provides: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
17. The respondent did not identify which paragraph of s 30(1) applies in these proceedings. In our view, none of the paragraphs applies. In particular, the applicant had not acquired or accrued any relevant right, privilege, obligation or liability under the Act prior to the amendment commencing, which was affected by the amendment (see s 30(1)(c)), and had not commenced any legal proceeding or application for remedy in respect of any such right, privilege, obligation, liability or penalty (see s 30(1)(e)) before the amendment took effect.
18. As s 30(1A) had commenced when the respondent cancelled the applicant's clearance and when the applicant applied to this Tribunal for a review of the cancellation decision, that provision applies to the Tribunal's determination of her application. The circumstance that the respondent submitted otherwise does not, as the applicant has acknowledged, alter the Tribunal's obligation to apply the correct law.

Would a reasonable person allow his or her child to have direct unsupervised contact with the applicant?

1. The applicant's submission is that the people who do leave their children in the applicant's care are representative of the "reasonable person" referred to in s 30(1A)(a) of the Act. That is, she says that they were aware of the conviction and have not withdrawn their children from the applicant's unsupervised care and that a reasonable person would therefore allow his or her child to have direct, unsupervised contact with the applicant while the applicant was engaged in child-related work.
2. The Tribunal finds that, even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person would consider that the applicant's emotional dysregulation and psychological instability is likely to have a negative impact upon children, even if it does not pose a risk to their safety.
3. Whilst the Tribunal accepts that certain parents leave their children in the care of the applicant, knowing of her conviction for the s 61 offence, this does not determine the outcome of the test under s 30(1A)(a). That provision assumes that the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware, and there is no evidence that the parents of children attending the applicant's day care service are aware of matters such as Ms Hare's psychological report, the applicant's history with FACS, the apprehended violence orders against the applicant or her earlier convictions.
4. As the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is not necessary to consider the application of s 30(1A)(b).

Orders

1. For the reasons given above, the Tribunal affirms the respondent's decision to cancel the applicant's 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: 27 September 2016