CJB v Children's Guardian

Relevant WWC legislative scheme

1. The objects of the WWC Act is to protect children by (a) not permitting certain persons to engage in child-related work, and (b) requiring persons engaged in child-related work to have working with children check clearances: see WWC Act, section 3.
2. 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 the Act.
3. The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
5. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
6. Section 6 and 7 of the WWC Act broadly defines the term "child-related work".
7. Part 3 of the WWC Act makes provision for making applications for a clearance and how the respondent is to determine them. Section 18 in this Part prescribes how the respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in schedule 2 of the WWC Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the respondent must refuse that persons' application for a clearance. Such persons have a right to make an application to the Tribunal for an enabling order: see WWC Act, section 28. Where an application of this kind is made, subsection 28(7) of that Act provides that the applicant is presumed to pose a risk to the safety of children unless he/she establishes the contrary.
8. The applicant is not a "disqualified person."
9. Subsection 18(2) of the WWC Act provides that the respondent must grant a clearance to a person who is subject to an assessment unless she is satisfied the person poses a risk to the safety of children. In this case, the applicant was subject to a risk assessment and as a result of that assessment, the respondent was satisfied that he passed a risk to the safety of children.
10. Part 4 of the WWC Act deals with reviews and appeals from decisions of the respondent in regard to an application for a clearance. The applicant's application is for a review under subsection 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
11. Subsection 30 (1) of the WWC Act sets out the factors the Tribunal must consider in determining an application made under Part 4 of the WWC At review application. That subsection relevantly 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 … any matters that caused a refusal of a clearance …, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … 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 … 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.
12. The above matters are similar to those the respondent may have regard to when undertaking an assessment under section 15 of the WWC Act.
13. Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].

Evidence before the Tribunal

1. In support of his application the applicant relied on: 1. an affidavit he swore on 11 February 2016; 2. a psychological report of Daniel Castles dated 18 April 2016, 3. a letter, dated 9 April 2016, from the applicant's former treating psychologist Dr Olga Lavalle; and 4. copies of his 2014 Workplace Learning forms and a Workplace Timesheet for his TAFE Disability Certificate 3 qualification.
2. The respondent relied on the following material relating to the applicant: 1. the section 58 documents, which included a copy of the respondent's risk assessment report and information the respondent obtained in the course of its risk assessment. Included were documents provided by the NSW Police, the Local Court, the District Court, Family and Community Services and Disability services Australia; 2. a further bundle of documents containing information obtained from NSW Health and NSW Corrective Services; 3. a copy of an Assessment Report of Dr Lavalle, dated 5 March 2003; and 4. a copy of a letter, dated 20 October 2014, from Dr Lavalle, to the applicant's treating doctor.
3. The applicant, Dr Lavalle and Mr Castles also gave oral evidence at the hearing and were cross-examined by counsel for the respondent.
4. Written submissions were also filed and served by the legal representatives of the applicant and the respondent.
5. We have dealt with the evidence and submissions below.

Consideration

1. Before we deal with the evidence and the matters we are required to have regard to, we note 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."
2. The Tribunal has accepted the word "risk" in the WWC Act should be given the same meaning.
3. It is well accepted that in administrative review proceedings, neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]: "… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."
4. 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 any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

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

1. The matters that caused the respondent to refuse the applicant's application for a clearance were the 2014 charges and his subsequent conviction. The charges all arose from events that occurred on the evening of 11 October 2014.
2. In his Statutory Declaration the applicant explained the circumstances surrounding the offences as follows: "On 10 October 2014, I was invited over to my ex-partner's house to see my son who had suffered a knee injury from playing soccer. My wife invited me to drink wine. On that occasion I accepted that I drank too much wine and do not remember in full detail what went on the rest of that evening. I do not remember whether I pushed my son but I did not punch him. I have never demonstrated any violent behaviour towards my children."
3. In his affidavit filed in these proceedings, the applicant said he had consumed approximately three quarters of a bottle of red wine. He said he did not normally drink red wine as it does not agree with him and that on this occasion he drank too much. He said he and his former wife argued and he assaulted her. He said when this was occurring, his eldest son attempted to separate them and he believes he pushed him out of the way. He said he did not hit his son. He said, apart from this occasion he had never assaulted any of his children. He went on to say that when he saw his middle children had woken and came out of their rooms, he left the home.
4. In his affidavit the applicant said that although he did not agree with the contents of his wife's statement to the police, or the grounds on which the application for a Provisional Apprehended Domestic Violence order had been sought, he understood that he did assault his wife and that his conduct on 10 October was unacceptable. He said, he accepted he should not have pushed his son on that occasion. He said he did not seek to contest the version of events presented to the Court because he did not wish his family to be subjected to cross-examination regarding the incident.
5. The police fact sheet states that the applicant went to the home of his former wife between 11:00pm, on Friday 10 October, and 12:00am, on Saturday 11 October. The fact sheet goes on to say the applicant was consuming alcohol throughout this time being a bottle of red wine. It was not known how much intoxicating liquor he had consumed.
6. The fact sheet goes on to state that at about 2:00am, on the Saturday morning, the applicant's son woke to hear his father, the applicant, and his mother arguing. He explained to police that they were arguing over an injury he received at school whilst playing soccer with the applicant blaming his mother for the injury. The fact sheet states that the applicant was heard to say to his former wife "I will kill you". He was heard to say this on more than one occasion.
7. The fact sheet goes on to state that the applicant's son further explained that his mother had requested the applicant to leave the premises when he grabbed her by the hair and started to punch her in the head. The fact sheet states that the applicant's son described the assault to police as the applicant having punched his mother "more than 10 times" and as "hard as he could". The applicant's son also explained to police that the applicant was pulling his mother's hair out. The applicant's son explained he feared for his mother and stepped in between them and tried to stop them. He said the applicant continued to punch his mother and during this time the applicant also pushed him away. The applicant's son explained his 7 and 6 year old siblings also intervened in an attempt to stop the assault.
8. The fact sheet states the applicant was seen to run from the location through the laundry and out the front yard of the premises and that the police arrived a short time later. An ambulance was also in attendance. The applicant's former wife was found to be disoriented and confused. She was subsequently taken to Wollongong Hospital for treatment.
9. The fact sheet states that whilst on the premises police obtained a series of photographs of the applicant's former wife's hair being "strewed through the hallway, into the laundry and out the front just in front of the laundry door" and "a bald patch" was sighted on top of her head. The fact sheet records the applicant's daughter having told police she was scared of her father and his younger son was also visibly upset.
10. At the hearing, during cross-examination, the applicant agreed he had told his wife three or four times that he would kill her. While he agreed he had said it, he said he did not mean it. He agreed he punched his wife but not 10 times. He said there were no bald patches on her head and that he did not push her in the bathroom. He said she tripped. In regard to the hair of his former wife, the applicant explained that the hair that was pulled off was not her own hair. They were hair pieces that were attached to her own hair.
11. The applicant said he took responsibility for what had occurred that evening. He said he had learnt a lot from the incident - he said it had affected him and affected his family.
12. In our view the offences of which the applicant was charged are serious. They occurred late in the evening and early morning and were such that they required the applicant's son to intervene. His son and his other children were also subjected to his unlawful conduct. We also find that the applicant has little, if any, insight as to the seriousness of his conduct.

(b) The period of time since the matters occurred and the conduct of the applicant since they occurred.

1. The offence occurred 18 months ago.
2. Since that time the applicant says he has had no contact with his former wife. He said he has now accepted that their relationship is over. He said he has engaged in counselling, avoided excessive alcohol consumption and is no longer working and carrying out domestic duties for the family. As a consequence he has reduced his stress levels.
3. In her letter of 5 January 2015, the applicant's treating psychologist, Dr Lavalle said the applicant must continue to apply learnt strategies for dealing with his behavioural and other issues and should abstain from excessive alcohol use.
4. The applicant explained he did not see his children for 12 months. He now has supervised contact every two weeks, but communicates with his eldest son more regularly. He said his relationship with his children is getting better.
5. As pointed out by the respondent, the applicant is subject to a final Apprehended Violence Order for the protection of his former wife and each of their children. That order is effective until 26 November 2016 and it is a result of that order that the applicant continues to have supervised contact with his children.

(c) The age of the person at the time the matters occurred.

1. The applicant was 43 years of age at the time of the offending conduct in 2014.

(d) The age of each victim at the time the matters occurred and any matters relating to the vulnerability of the victim.

1. The applicant's former wife was 35 years of age at the time. His older son was 12 years of age at the time. His younger children, who also witnessed the assaults on their mother, were aged 7 and 6 years at the time.

(e) The difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant.

1. The applicant was 8 years older than his former wife and 31 years older than his eldest son at the time of the offending conduct.

(f) Whether the applicant knew, or could reasonably have known, that the victim was a child.

1. The applicant's former wife was not a child. However, the applicant's elder son was, to the knowledge of the applicant, a child. The applicant also knew that the other children present at the time were aged 6 and 7.

(g) The person's present age.

1. The applicant is now 44 years of age.

(h) The seriousness of the applicant's total criminal record and the conduct of the applicant since the offence occurred.

1. Other than the 2014 offences, the applicant has no recorded criminal history within Australia. In his oral evidence the applicant readily acknowledged there had been past verbal domestic violence.

(i) The likelihood of any repetition of the applicant of the matters and the impact on children of any such repetition.

1. It goes without saying, that should the applicant engage in conduct similar to that which occurred in October 2014, the effect on children would be significant.
2. The applicant said that in March 2011 there was an incident at his home with his wife and children where he had become distressed and threatened to harm himself. He said he was taken to hospital, assessed and released the same day. He said he was not required to take any medication at that time.
3. He said, around 2012 he again began to feel very stressed and became ill. He said his doctor referred him to Dr Lavalle, in February 2013. He said Dr Lavalle diagnosed him with Post Traumatic Stress Disorder (PTSD), depression and anxiety. He said he was prescribed anti-depressant depression medication and continued to see Dr Lavalle for counselling approximately once a fortnight.
4. The applicant said, immediately after the October 2014 incident he again arranged to see Dr Lavalle. He said he met with her weekly through the second half of October, November and the first half of December 2014. He said he had strictly complied with the terms of the Apprehended Domestic Violence Order and reiterated he has had no contact with his former wife since October 2014. He said he has now lived by himself for approximately two years and he very rarely drinks alcohol and if he does he would drink beer and only in moderation. He has worked on a casual basis. He has worked as an interpreter as he is fluent in six languages. He has also worked delivering pizzas. Since the 2014 incident, he has obtained further qualifications in the area of disability. He said he has worked as a volunteer previously in this area up until the respondent imposed the interim bar.
5. In her oral evidence, Dr Lavalle explained that she had seen the applicant twenty-one times in the period 2012-2015. She said the applicant was first referred to her in March 2013. She said she had eight sessions with the applicant at that time. She said, prior to returning to treatment in October 2014, the applicant had been managing his PTSD well with medication. She said that when he was first referred to her, alcohol consumption was not an issue addressed or raised by the applicant. However, she said it is common for PTSD treatment to tell patients that they should not drink alcohol.
6. When the applicant was referred the second time, in October 2014, Dr Lavalle agreed the applicant had denied having ever physically being violent towards his wife. Dr Lavalle said they spoke about violence during the treatment sessions - especially in the context of what the applicant had seen as a child when his father assaulted his mother. She said the applicant told her he understood how his children would have felt when he acted violently towards his former wife. She said the applicant also acknowledged that violence in Australia is not acceptable because there are legal consequences. Dr Lavalle, said the applicant had explained to her that in his culture, where a husband and wife separate, the children would go with the father as the father has all the rights. She said the applicant was not angry about the difference between his culture and that of Australia.
7. In her letter to the applicant's solicitor, dated 9 April 2016, Dr Lavalle advised the applicant finished treatment with her on 15 October 2015. She explained treatment had ceased because the applicant was "absent of any significant symptomatology, his mood was stable and he had completed his anger management treatment." Dr Lavalle also said that in her opinion the treatment provided to the applicant was sufficient to address the issues which led to the assaults on 11 October 2014. She went on to say that during the course of treatment the applicant told her he was considering undertaking the "Taking Responsibilities Course" run by Relationships Australia. Dr Lavalle was also asked whether in her opinion the applicant posed a risk to children. Her response was that the applicant required an independent risk assessment for this question to be answered.
8. In her report Ms Castles expressed the opinion that the applicant did not pose a risk to children.
9. At the hearing, in cross-examination, Ms Castles agreed she is not a qualified psychologist or psychiatrist. She explained she is a social worker and has in recent years worked as a child protection officer for UNICEF in Sudan. She explained she has extensive training in child abuse and understands the issues which underlie child abuse and how to treat them. In her report Ms Castles expressed the opinion that the applicant's assault upon his former wife was best understood in the context of PTSD and the culmination of many stresses exacerbating the effects of this. She said that, in her opinion, the applicant did not see violence as a way to resolve conflict nor did he wish to have a relationship characterised by violence. In cross-examination Ms Castles agreed that the applicant's description of the assault being out of character was not correct given the evidence about earlier violence and given the evidence about other incidents of domestic violence.
10. The respondent noted that Ms Castles was not a psychologist.
11. The applicant said he had not obtained a psychological risk assessment report because of the significant cost involved and because there was only one relevant offence (at the lower end of the scale), the circumstances at the time of the offending had now changed, no recommendations for further treatment had been made and on this basis alone his risk, or likelihood of offending was low.
12. In our view, given the relatively short period of time since the offending conduct, the fact the applicant has been and continues to be subject to the Apprehended Domestic Violence Order, together with his lack of insight into his offending conduct there is, at this time, a likelihood of the applicant acting violently towards a child cannot be excluded. This is especially so if he finds himself in a work situation that causes him stress and anxiety. That is, we are not satisfied that the applicant has yet developed the skills to recognise when such situations can and do occur and how to avoid them or control his behaviour when stressed or anxious. With time and perhaps ongoing treatment this might of course change.

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

1. In his affidavit the applicant explained he met his former wife while living in the Democratic Republic of Congo. He met her around 1994 and they married in 1995. He said three years after they were married he became separated from his wife as a result of the civil war in Congo. He said between 1998 and 2001 he lived in a refugee camp in Kenya. He said he was reunited with his wife in mid-2001 and they remained in the refugee camp until mid-2007. He said his elder son was born in Nairobi, but when he was three months old they returned to the refugee camp as he was concerned for their safety. He said his daughter was born while they were living in the camp.
2. As we have noted the applicant, his former wife and his son and daughter migrated to Australia as refugees in about mid-2007.
3. The applicant said he and his wife began to experience difficulties in their relationship in about early 2010. He said the decision to separate was by mutual agreement and that he left the matrimonial home and went to live with one of his brothers.
4. In conclusion the applicant submitted there was simply insufficient evidence of conduct in the past likely to cause a risk of harm to children. It was submitted that the risk factors which triggered the offence against his son are no longer present and in these circumstances the Tribunal can be comfortably satisfied that he poses no risk to children.

(k) Any other matters that the respondent considers necessary.

1. The respondent noted the applicant has been diagnosed with PTSD and depression and has since arriving in Australia experienced difficulty providing for his family and obtaining ongoing employment. These matters, the respondent submits, are relevant to the applicant's ongoing psychological health given his concerns expressed as recently as January 2015 that his mental health declined due to his inability to continue with his traditional and cultural family responsibilities. The respondent acknowledged that the applicant has undergone counselling in respect of behavioural issues including anger management, and alcohol abuse. However, given the extent and nature of the violence perpetrated by the applicant on his former wife and towards his eldest son and given that these offences occurred in front of two of the applicant's other children, it was submitted the Tribunal can have no confidence, in the absence of a psychological risk assessment that the applicant does not pose a risk to the safety of children.
2. The respondent also submitted the applicant has limited insight into his conduct. In this regard the respondent contends the applicant needs proper training in child protection issues. It was also submitted that the applicant was not fully candid in regard to his violent conduct. There is evidence of anger in the past and some treatment in order to control such anger. However, given the events of 2014, the Tribunal could not be assured that the applicant will not control his anger in the future. The respondent also submitted that children with disabilities are very vulnerable and in the absence of the applicant having any insight as to how his behaviour affected his own children, we must be satisfied that the applicant poses a risk to the safety of children.

Conclusions and orders

1. We reiterate, the applicant is not a disqualified person and there is no presumption that he poses a risk to the safety of children.
2. As we have noted at the commencement of these reasons for decision, in this review application, the ultimate issue for us to determine is whether in the circumstances, having regard to the paramount consideration in section 4 of the WWC Act and considered the matters in subsection 30(1) of that Act, we can be satisfied the applicant today poses a real and appreciable risk to the safety of children.
3. As we have noted the offences of which the applicant was convicted in 2014 are serious. In our view it was the circumstances in which the offences were committed which are serious - particularly as the applicant's assault on his wife was witnessed by his children, one of whom felt he had to intervene and was assaulted as a result.
4. While it is not unusual for offenders to minimise their offending conduct, in our view the applicant has little, if any, insight into his offending conduct. As at the date of hearing he only had supervised contact with his child on a fortnightly basis and he was prohibited from contacting his former wife. We accept the applicant is trying to rebuild his relationship with his children and he is to be commended for this. The offending conduct also only occurred recently and little has changed in the applicant's life generally. While we accept the evidence of Ms Castles and Dr Lavalle, we do not share Ms Castles confidence that the applicant does not pose a risk to the safety of children at this time.
5. As we have noted, on the material before us and having regard to section 4 of the Act we are unable, at this time, to exclude a likelihood of the applicant again acting violently towards a child where he is stressed and anxious.
6. Accordingly, we are satisfied that as at the date of hearing the applicant poses a risk to the safety of children. In light of this finding we find that the decision of the respondent is the correct and preferred decision and should be affirmed.
7. Accordingly we order: 1. The decision of the respondent made, on 13 November 2015, to refuse the applicant a working with children check clearance is affirmed. 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: 11 October 2016