CKC v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-05-24

Reasons for Decision

The applicant, who will be referred to as CKC, has been a bus driver for many years. On 11 February 2015, he applied for a working with children check clearance. Following his request, the Office of the Children's Guardian ('the Children's Guardian') conducted a risk assessment for him. The applicant's conviction in 2012 for three counts of common assault and one count of assault occasioning actual bodily harm against his then sixteen-year-old twin daughters triggered the risk assessment.
On 20 December 2015, the Children's Guardian made a decision to refuse a working with children check clearance to the applicant, who applied to this tribunal for a review of the decision on 18 January 2016. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Child Protection (Working with Children) Act 2012 ('the Act').
There is no dispute that the Tribunal has jurisdiction to hear and determine CKC's application.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of CKC was not to be published without the leave of the Tribunal. For this purpose the pseudonym CKC has been used for the applicant's name. His children are referred to simply as Daughter A and Daughter B.

Background

CKC worked as a bus driver from November 1998 until the termination of his employment on 21 December 2015, following the refusal by the Children's Guardian to grant him a working with children check clearance.
In 2012, he pleaded guilty to three counts of common assault and one count of assault occasioning actual bodily harm against his then sixteen-year-old twin daughters, for which he was placed on a three-year good behaviour bond. He also consented to a final Apprehended Violence Order being made against him. According to the agreed facts, on 28 May 2012, the applicant hit his twin daughters whilst admonishing them for not concentrating on their schoolwork and for not being reliable. As a result of the assault, one of applicant's daughters sustained some scratches and marks on her arm and leg. On 15 August 2012, the applicant slapped both daughters on the cheek and grabbed one by her collar.

CKC

In an affidavit prepared for these proceedings, the applicant confirmed that he was born overseas and migrated to Australia twenty-five years ago. He and his wife have four children. His twin daughters, who are now twenty years old, continue to live at the family home.
In his affidavit, the applicant explained the context for his assault on his daughters who had been in Year 11 at the time, had been performing poorly at school and had also been truanting.
Because of this, the applicant stated that he 'decided to apply physical discipline to both girls, to correct them for their behaviour in missing school and to ensure that they would apply themselves more diligently to their schoolwork.' He agreed that on 28 May 2012, he taken then into a bedroom and had closed the door and windows before striking each girl with a belt. He denied hitting them in anger but insisted that he had hit them simply as a means of physically disciplining them. Contrary to the police facts, he denied hitting them with an electrical cord or with a crutch (which he had been using at the time for a knee injury). As a result of these offences, the applicant pleaded guilty to common assault and assault occasioning actual bodily harm.
According to the applicant, physical discipline is culturally accepted in his country of birth, and his parents had applied physical discipline to him if he had disobeyed their instructions or had not shown respect for the opportunities they had provided for him. The applicant denied having himself physically disciplined his daughters prior to the assault in May 2012 and is now aware that his behaviour was unacceptable.
On 15 August 2012, the applicant's son saw his sisters in the park when they were supposed to have been at school. When the girls arrived home, the applicant could smell alcohol and tobacco on their breath. The consumption of either alcohol or tobacco is prohibited by the applicant and his wife and by the family's church. In response to the girls' disobedience and disrespect, the applicant slapped each girl on the cheek and grabbed one of the girl's collars. This led to the applicant's arrest for common assault, breach of bail and contravening an apprehended violence order.
The applicant declared that he has not used physically disciplined his daughters since then.
The applicant denies having any difficulty in controlling his anger and maintained that the incidents in May and August 2012 were isolated ones, caused as a result of 'constant disobedience by my own children.'
The applicant stated that his relationship with his twin daughters is now very good. Both daughters continue to live in the family home, are involved in church activities and are in employment.
The applicant has a heavy involvement in his church, which includes teaching Sunday school, leading the church choir and assisting with youth activities. The applicant declares that: I have never received any complaints in my various roles with the church in relation to my conduct and behaviour towards children.
In oral evidence before the Tribunal, the applicant confirmed that he had received a certificate for good customer service in his role as a bus driver. Whilst he agreed that complaints had been made about him over the course of his seventeen years of employment as a bus driver, no complaints had related to any behaviour or conduct involving children. He denied ever swearing at a passenger.
He told the Tribunal that when the police had arrested him in May 2012, he had been wearing only a singlet and shorts and had asked the police to wait while he put something else on. According to the applicant, the police officers had then wrestled him to the ground and handcuffed him. The applicant denied that he had sought to resist the arrest.
He agreed that his twin daughters had gone to stay with their uncle after the incident but had later returned to the family home.
In relation to the incident on 15 August 2015, the applicant told the Tribunal that the girls had appeared drunk when they came home. The applicant agreed that he had slapped them on the cheek as a punishment for truanting and drinking alcohol. He agreed that he had been upset at the time, but denied losing control. He insisted that his only purpose had been to discipline the girls.
He told the Tribunal that he had pleaded guilty to both offences because 'he wanted to get it over and done with: to take the punishment and get it over with.'
He told the Tribunal that he now understands that physical discipline is unacceptable and that it is not good for children who may later pass the practice onto their own children. He told the Tribunal he would never practise physical discipline again. He confirmed that he has enrolled in a program with Catholic Care, which teaches ways to effectively deal with conflict.
He told the Tribunal he has not used physical discipline since the incident in August 2012. Instead, the family sit down to talk after church on Sunday to discuss any issues they may have as a family. He confirmed that his twin daughters continue to live at home and that he continues to provide them with some financial support. He told the Tribunal that his relationship with his daughters is now excellent.

Daughter A

The applicant's twin daughters each swore affidavits for these proceedings. They were not required for cross-examination by the Children's Guardian.
Daughter A confirmed that she had left school in Year 11 in 2012 having failed to achieve satisfactory grades to progress to Year 12 and complete her HSC. She commenced but did not complete a business management course and is now in casual employment. She and her twin sister continue to live at the family home.
On 28 May 2012, Daughter A and her twin sister truanted from school to meet up with friends. That night, their father hit his twin daughters on the legs and arms with a belt 3 or 4 times.
Daughter A wrote that she and her sister were crying. She wrote: I was also upset by Dad's actions, as he had never physically disciplined me previously. I had also not ever witnessed him disciplining my brothers and sisters in that manner.
The following day, she spoke to a school counsellor who contacted a FACS caseworker about the incident. She and her sister also spoke to the police when they attended the family home the next day. She and her sister then moved out of the family home to stay with relatives but returned after a fortnight because, according to Daughter A 'she missed her parents, her other siblings and her family environment.' The applicant apologised to her when she returned home, telling her I am sorry for how I acted. Your education is very important to me and that is why I lashed out at you.
On 15 August 2012, Daughter A and her twin sister, who will be referred to as Daughter B, left school early to spend time with friends. Their older brother later saw them in the park and took them home.
According to Daughter A: I recall calling the police when I arrived home, but do not remember what I said to them. When Dad arrived home later that afternoon, I recall that he was shouting at [my sister] and I for not going to school, but I cannot recall what was said. I also do not remember if he used physical discipline on us that afternoon. The police arrived approximately 10 minutes after Dad arrived home and they then questioned [my sister] and I separately about Dad's behaviour towards us, but I do not remember what I said to them
According to Daughter A, the applicant has not physically disciplined her since 2012, nor has she witnessed him physically disciplining any of her other siblings: Since that time, on the occasions when he has had an issue with my behaviour, he resolves this through talking to me about the problem and encouraging me to attend church more frequently. He's also much calmer on the occasions when he's upset with me about my behaviour. I continue to reside in the family home with Dad, Mum [my sister and my brother]. I do not hold any fears about Dad's behaviour or actions and am not worried about the risk of him engaging in any physical violence towards me.

Daughter B

Like her twin sister, Daughter B left school without completing Year 11. She also began but did not complete a course in business management. Like her sister, she continues to live with her parents and brother in the family home.
Like her twin sister, she truanted on 28 May 2012. When her father discovered this, he hit her with a belt on the legs and arms approximately five times. In her affidavit, she states that her father had never previously used physical discipline on her, nor had she ever witnessed him physically disciplining any of her other siblings. When interviewed by the police the following day, she denied that there was 'any violence going on at home.' She does not believe that her father resisted his subsequent arrest by police officers.
In her affidavit, Daughter B recounts that on 15 August 2012, she and her twin sister left school early to socialise and smoke cigarettes. When her elder brother saw her doing this, he sent his sisters home. In her affidavit, daughter B states that, before their father arrived home, her sister had called the police and, when connected, had said that 'our Dad is coming home soon to hit me and my sister and I are scared.'
When their father did come home, Daughter B stated that he grabbed her by the collar, but not tightly enough to stop her from breathing. The police then arrived and arrested their father.
According to Daughter B's affidavit: Since the incidents in May and August 2012, Dad has not engaged in any physical discipline towards me. I have not observed him applying physical discipline to my other siblings or any other person. The incidents in May and August 2012 with isolated events and Dad had not ever applied physical discipline to me previous to those occasions. Any issues Dad has had with my behaviour since these incidences have been resolved through conversation. On the occasions that Dad and I have had disagreements, he usually sits down with me at the dinner table and discusses strategies to correct my behaviour. I do not hold any fears whatsoever towards Dad. I continue to live at home with my parents [and my sister and my brother]. We have a close family unit, who love each other very much.

References

The applicant's minister has provided a reference in support of the applicant in which he states that the applicant is very involved in community development and has been able to resolve all issues to do with his children and the disciplining of children.
The applicant's former employer describes him as 'polite and respectful and always compliant with requests in the course of his duties.' To her knowledge, the applicant has never 'displayed poor behaviour. His behaviour with students has always been good and fair.' It is her belief that the applicant poses no threat in any way or form to any child-related employment.

Psychological Risk Assessment Report

Mr Patrick Sheehan, psychologist, assessed the applicant for the purposes of these proceedings.
In assessing the applicant's risk for violence as within the low range, Mr Sheehan used the Violence Risk Scale (VRS).
He provided the following summary and opinion: Analysis of [CKC] against empirically derived risk assessment tools suggests that he has few of the features associated with the rest of reoffending and a number of compelling protective factors. His offences would appear to have been limited to a particular domestic scenario during a particular period, and violence was expressed towards his two 16-year-old daughters in an anachronistic application of corporal punishment. The contextual issues are now resolved. There is no brought a pattern that interpersonal aggression or vulnerability towards violence. Because he does not have an antisocial personality orientation, [CKC] is able to learn from his experience and adjust his behaviour accordingly. Evidence from his daughters suggests this is what [CKC] has done in the period of years following his convictions. In terms of risk management consideration it is my expert view that any residual risk is low and could not be generalised to apply outside of the domestic contacts. [CKC] has a 17-year history of working with children in his role as a bus driver (including specific school routes) as well as longitudinal involvement with organised church youth activities, without complaint of aggression or threatening behaviour towards children. It is highly likely that he has faced many situations where young people have challenged him or behaved provocatively or defiantly, and the absence of recorded incidences suggests that he was able to respond to those situations by de-escalating hostility. In my expert opinion, it is inconceivable that this would not be given significant weight in determining [CKC's] suitability to work with children in both these contexts. In my view there is no protective valuable in prohibiting [CKC] from his primary career. Such a decision would seem a net loss rather than an advantage to the community.
Mr Sheehan expressed the following view in relation to the applicant's offending: In my view, there are cultural and contextual issues at play in [CKC's] offences. He has explained a cultural expectation of corporal punishment as a means of parental discipline, perhaps underpinned by the strict, inflexible and anachronistic Victorian values that permeated his own childhood...Contextual factors may involve these beliefs were applied during a difficult stage of parenting as his youngest children passed through a stage of adolescence where they were increasingly asserting their own views and [CKC] failed to acknowledge this developmental stage. [CKC's] apparent inflexibility in being unwilling to characterise his behaviour as abusive may be largely driven by his construct of his own children and self-concept. If he re-frames his behaviour as abusive, he must also re-frame his own childhood as abusive, as well as identify himself and his father as perpetrators.
Having considered the relevant dynamic factors, Mr Sheehan provided the following overall statement in relation to the applicant: In my expert opinion, the overall totality of information would suggest that his risk of harm to children (through aggression or violence) would be considered very low…I am unable to conclude that there is a 'real and appreciable risk' to children and do not believe that the available evidence could support such a conclusion as that reached by the Children's Guardian.
In oral evidence before the Tribunal, Mr Sheehan confirmed that the applicant had scored 3 on the VCR assessment, which placed him in the lowest risk category for the assessment.
Mr Sheehan reiterated his opinion that cultural factors were relevant to the applicant's assaults against his daughters, as were his difficulties in managing his daughters' transition to adulthood, his concern about his daughters' disobedience and his anxiety that his daughters would not complete their secondary education, which, as it happened, they did not. It is Mr Sheehan's view that the applicant does not have a general propensity for violence. In particular, he noted the absence of any evidence that the applicant had ever shown aggression towards children he had transported in his work as a bus driver or in his church based activities. He noted that since the offences in May and August 2012, the applicant has changed his behaviour in relation to using physical punishment to discipline his children. He does not believe that the applicant either endorses violence or has any problem regulating his anger. He would not recommend that the applicant undertake any therapy. He retains the view that the applicant poses no risk to other children. He does not believe that the applicant poses a risk to children he encounters during his church-related activities.
In considering the applicant's employment records he stated that 'as is common in my experience, the employment records of bus drivers consist of a mix of commendations and criticisms.' Having considered the applicant's records, he noted that none of the complaints involved children and that he 'would not regard the record of complaints as having any bearing on [CKC's] risk of harm to children. It cannot be [in]ferred from these complaints that the information supports an assessment of appreciable risk to children.

FINDINGS AND REASONS

The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar

The matters that that caused an assessment and the refusal of the clearance are CKC's convictions for three counts of common assault and one count of assault occasioning actual bodily harm.
Having heard the applicant's evidence and considered the affidavits sworn by the applicant's daughters, we accept that on 28 May 2012, the applicant hit both daughters approximately five times on the legs and arms with a belt. On the evidence before it, and despite the police facts in the matter, we do not accept that the applicant hit either girl with a cord or a crutch.
On the evidence before us, we accept that on 15 August 2012, the applicant entered his daughters' bedroom, slapped them each on the cheek and grabbed one of the girls by her collar. Having considered the applicant's evidence and the affidavits tendered by his daughters, we are not satisfied that before slapping the girls, the applicant first ensured both the windows and doors to the bedroom were closed.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

The incidents occurred in May and August 2012. There is no evidence that the applicant has committed any further offences since then.
The applicant has given evidence that prior to the offences, he had not been aware that it was unlawful to physically discipline his children. He gave evidence that he has not physically disciplined his children since then. His evidence is supported by affidavits sworn by his twin daughters, who were not required by the Children's Guardian for cross-examination.
We give weight to the reference from the applicant's minister who describes the applicant as having resolved issues relating to his parental discipline.
We also give weight to the reference by the applicant's former employer who describes the applicant's behaviour towards student passengers as 'good and fair.
Contained on file are records of complaints made against the applicant in the course of his seventeen-year employment as a bus driver. The applicant has noted, and the Children's Guardian has agreed, that none of the complaints are about the applicant's behaviour towards children and none complain of any aggression by the applicant towards passengers. For this reason, we have given the records little weight in considering whether the applicant poses a real and appreciable risk to children.

The age of the person at the time the matters occurred

The applicant was forty years old at the time of the incidents.

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

The applicant's daughters were sixteen years old at the time of the offences.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

The applicant is twenty-six years older than his daughters.

Whether the person knew, or could reasonably have known that the victim was a child

As father to the victims, the applicant was aware that they were children.

The person's present age

The applicant is forty-four years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

In addition to the trigger offences of assault and assault occasioning actual bodily harm, the applicant also has convictions for resisting an officer in the execution of duty and for the contravention of an apprehended violence order. Each of these additional convictions was directly related to the trigger offences.
The applicant has a 1994 conviction for a mid-range PCA (Prescribed Concentration of Alcohol) offence. The applicant gave evidence that he has not consumed alcohol since then.
The applicant has also given evidence, corroborated by his twin daughters, that he has not engaged in any physical discipline of his children since 2012 and has had no subsequent contact with law enforcement agencies.
His former employer speaks highly of the applicant's qualities as a bus driver and his minister lauds his involvement in church activities.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

In evidence before the Tribunal, the applicant apologised for his behaviour towards his twin daughters and stated that he has not physically disciplined his daughters since August 2012. His evidence is corroborated in affidavits prepared by his twin daughters, neither of whom was required for cross-examination.
It is the expert opinion of the psychologist, Mr Patrick Sheehan, that the applicant would be very unlikely to reoffend and that his risk of harm to children is very low. In Mr Sheehan's view, the applicant's physical disciplining of his daughters mirrored the upbringing he had experienced.
On the basis of the evidence before us, we accept that the applicant understands that physical disciplining is unlawful and are satisfied, on the basis of his evidence and that of his twin daughters, that he has not used physical discipline on his children since 2012 and instead discusses issues of concern to him.
Whilst we do no condone the applicant's physical disciplining of his daughters, we give weight to the expert evidence of Mr Sheehan, coupled with the evidence of the applicant himself that the incidents in May and August 2012 were confined to the domestic environment and took place at a difficult time of adolescence for the applicant's younger daughters who, in the applicant's view, were not applying themselves to their education. The applicant's daughters are now working, remain living at home and, on their own undisputed evidence, enjoy a loving relationship with both parents. On the evidence before us, we accept that the applicant's actions towards his daughters took place within a particularly difficult period of parenting that has now passed. For these reasons, and taking into consideration the findings of Mr Sheehan, who clearly explained his methodology in oral evidence before us, we are satisfied that there is very little likelihood of the applicant reoffending.
We are supported in our findings by:

the reference provided by the applicant's former employer who describes the applicant as always having been fair with students on his buses; and
the reference provided by his minister who believes the applicant has been able to resolve all issues to do with his children and the disciplining of children.

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

In support of this application, the applicant has sworn two affidavits and has given oral evidence before us. The applicant impressed us as a polite and open man who has gained insight into his offending and, in doing so, has changed his method of parenting, thereby retaining a close and supportive relationship with his twin daughters.
Having heard from the applicant ourselves, we do not believe that he has tried to minimise his offending. To the contrary, it is our view that he understands the unlawfulness of his actions and has successfully adopted strategies to change his behaviour. Any other matters that the Children's Guardian considers necessary
The Children's Guardian hold the view that the applicant remains a risk to children on the basis of the seriousness of the 2012 offences, his lack of insight and failure to undertake remedial action.
Having heard from both the applicant and Mr Sheehan, it is our view that the applicant has gained insight into his action and has modified his behaviour accordingly. In light of Mr Sheehan's view that the applicant does not have a problem regulating his anger and does not recommend that the applicant undertake any therapy, we give little weight to the fact that, following his conviction, the applicant did not undertake a course such as an anger management course.

Conclusion

The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.
On the evidence before us, we are satisfied that since his convictions in 2012, the applicant has gained insight into his behaviour and has not subsequently physically disciplined his children. We accept the opinion of Mr Sheehan that the applicant does not pose a risk to children and give weight to the evidence of the applicant and that of his daughters that he now discusses any issue of conflict that arise within the family rather than employing physical discipline. We give weight to the references provided by the applicant's former employer and are satisfied that he has never displayed any aggression or inappropriate behaviour to children in the seventeen years during which he was employed as a bus driver.
On the evidence before us, and taking into account the matters set out in s30(1) of the Act, we are not satisfied that the applicant poses a risk to the safety of children. He should therefore be granted a working with children check clearance.

Order

The orders are as follows: 1. The decision of the Children's Guardian dated 20 December 2015 to refuse to grant the applicant a working with children check clearance is set aside. 2. In substitution for that decision the following decision is made: The applicant is granted a working with children check clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2016

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