CLG v Children's Guardian

Role of the Tribunal

1. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the respondent, including a decision to refuse a Working with Children Check clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a Working with Children Check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
2. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. Administrative Decisions Review Act 1997, s 63.
3. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
4. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]
5. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
6. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
7. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
8. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so.
9. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."

Administrative Decisions Review Act 1997

1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal.
2. At any stage of proceedings, the Tribunal may remit the decision to the respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

1. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the respondent may have regard when conducting its risk assessment) : 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) Whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
2. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V[2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
3. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
4. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Burden of proof

1. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
2. Although the applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.
3. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
4. The applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

1. The respondent tendered into evidence the respondent's risk assessment report and documents provided by the applicant's former employers as well as by government departments and agencies, including the NSW Police, the NSW Local Court, and NSW Family and Community Services.
2. The applicant relied on her application, a statutory declaration dated 10 April 2015, a NZ Ministry of Justice Criminal History check, and a report of Ms Caroline Hare, Forensic Psychologist dated 27 May 2016.
3. The applicant and Ms Hare gave oral evidence at the hearing and were cross-examined by Counsel for the respondent.
4. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

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

1. The matters that caused the refusal of the applicant's application for a clearance were matters involving the applicant's use of excessive physical discipline and her assaults of her daughter, Miss A, who was 7, 12 and 13 years of age at the relevant times. First matter
2. In 1997, the Department of Family and Community Services were informed by the school attended by Miss A, who was aged 7 years at the relevant time, that Miss A had marks on her leg which she said occurred as a result of the applicant hitting her with the cord of the vacuum cleaner. Miss A also disclosed at the time that her mother would use a wooden spoon and a belt to discipline her.
3. The matter was referred to a Joint Investigation Response Team (JIRT) (a body made up of Departmental, NSW Police and NSW Health professionals who undertake joint investigations of child protection matters). Miss A and the applicant were spoken to by relevant officers of the team. Miss A said she had been playing chasing with her little brother. She slammed a door which hit her brother in the face. Miss A said her mother, who was vacuuming at the time, got angry with her and went to smack her, with the vacuum cleaner cord hitting her legs. Officers of JIRT interviewed the applicant who made admissions to the alleged conduct and who stated that she knew it was wrong to hit children in this way. No further action was taken by JIRT as the relevant officers were satisfied that there were no fears for the child's safety and it appeared to be a one-off situation. Departmental records produced by the respondent state: "(The applicant) was advised in a firm manner that this type of discipline is (sic) not acceptable and should this occur again that she could face assault charges and possibly have the children removed from (sic) her care".
4. In her evidence before the Tribunal in relation to this matter, the applicant admitted to hitting Miss A with a vacuum cleaner cord, and to also using smacking and a wooden spoon to discipline her daughter. 2002 offence
5. The police facts indicate that on 1 November 2002, Miss A, who was then 12 years old, had returned home from school. A dispute arose in the lounge room about a video-recorder, during which the applicant said to Miss A "Are you getting cheeky?" The applicant took off her shoe and hit Miss A a number of times on the arms, legs and back. Miss A attempted to shield herself and subsequently left the lounge room and entered her bedroom. The applicant followed Miss A into her bedroom, grabbing Miss A around the neck area, pinching the skin and twisting it. The applicant slapped Miss A across the face and mouth with an open hand, causing Miss A's lip to spit and swell up. The applicant continued to hit Miss A on her arms and back, with her hands and shoe.
6. During the assault, Miss A was crying and pleading with the applicant to stop. According to the police facts, the applicant left Miss A's bedroom and returned a short time later carrying a pole, with which she proceeded to strike Miss A while Miss A was on the bed cowering under a blanket.
7. The applicant then told Miss A to go outside and take the clothes off the washing line. Miss A went outside and proceeded to a neighbour's house. An ambulance was called and Miss A was taken to hospital where she received treatment for her injuries, which included welts to her right arm, swelling to her lips, left ear and left knee. She also had scratch marks and small lacerations to her head and neck region, and there were concerns at the time that Miss A's jaw may have been fractured.
8. The Department of Community Services was contacted and an order was granted for the protection of the child. An apprehended violence order was granted, preventing, inter alia, any further assault of Miss A by the applicant.
9. The applicant was arrested by police and was interviewed. The applicant admitted assaulting her daughter by slapping and hitting her with her shoes, stating that she was very upset at her daughter. She also said she may have gone too far and that it was an accident. The applicant was subsequently charged with an offence of assault occasioning actual bodily harm, pursuant to section 59(1) of the Crimes Act 1900.
10. Information obtained from the Local Court indicates the applicant pleaded guilty to the offence and was ordered to enter into a section 9 bond to be of good behaviour for 12 months; to cooperate with the Department of Community Services during any period of their involvement and attend programs as directed; and to comply with the apprehended violence order.
11. The records of the Local Court produced by the respondent do not include any remarks on sentence by the sentencing Magistrate. The details of the basis upon which the applicant entered her plea of guilty are not clear. In particular, it is not apparent from the court records whether the police facts were agreed and tendered on sentence, and any other evidence that was accepted by the Court.
12. In her evidence to the Tribunal, the applicant admitted assaulting her daughter with her hand and her shoe. She could not recall all of the details of the offending, but did not dispute the majority of the facts alleged. However, the applicant denied that she used a pole to hit her daughter. Second offence
13. On 8 October 2004, Miss A, who was aged 13 years, was further assaulted by the applicant in the family home. According to Departmental records, the incident arose in the context of reports that Miss A had been smoking, and Miss A's actions in moving a chair in the home that hit a wall. It was alleged that the applicant hit and punched Miss A in the face and back and attempted to strangle her. It was further alleged that the fight progressed into the bathroom, where the applicant pushed Miss A into the shower recess. Miss A was subsequently sent to her bedroom. She left the room via a window and went to the home of a friend where she remained for approximately two nights.
14. After the assault, Miss A contacted police. An officer spoke with Miss A, who was observed to have a five centimetre scratch to the right side of her neck, as well as bruising and slight swelling to her lip. Miss A gave a 3-page statement to police during which she was emotional and crying. Miss A was visited by Departmental case officers and was taken to hospital for assessment. The Department initiated Children's Court proceedings, and an Emergency Care and Protection Order was issued.
15. The applicant was interviewed by police, during which allegations were put to her. The applicant admitted that a dispute arose in relation to reports that Miss A had been observed smoking and drinking beer in public. The applicant said to the interviewing officer that she was very, very angry and upset with Miss A, and admitted saying to Miss A "Just shut your mouth because I don't trust you anymore".
16. It was alleged that Miss A left the room where her mother and family members were present and walked down the hallway to the bathroom. It was alleged by Miss A that the applicant followed her and proceeded to punch her in the face and back approximately 6 or 7 times, pushed her against the wall and grabbed her around the neck, before pushing her back into the bathroom and punching her about three times in the back. Miss A also alleged her mother scratched her neck with her fingernails.
17. During the police interview, the applicant denied punching Miss A more than once and denied grabbing Miss A around the neck or scratching her. The applicant admitted to pulling Miss A's hair. She also admitted to slapping the mouth of her daughter, who she said was swearing at her.
18. The applicant was arrested and charged with assault causing actual bodily harm pursuant to section 59(1) of the Crimes Act 1900. She was also charged with breaching the apprehended violence order which was in place at the relevant time. The applicant pleaded not guilty to the offence and the matter proceeded to trial in the Local Court. The applicant was convicted and sentenced to 4 months' imprisonment, suspended upon entering into a bond pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999.
19. It appears that various witnesses, including the applicant, gave evidence during the criminal trial. However, no transcripts of the evidence of the proceedings in the Local Court were produced to the Tribunal. The Tribunal had available to it the transcript of the police record of interview with the applicant, as well as a statement of the police officer who spoke to Miss A the day after the assault occurred.
20. In her evidence to the Tribunal, the applicant could not recall all of the details of the offence. The applicant admitted punching her daughter in the back three times. She admitted smacking her daughter but denied it was with an open hand. The applicant also denied scratching her daughter. In cross-examination, the applicant conceded that her daughter was not prepared to put up with her (the applicant's) physical discipline, and that made her (the applicant) angry.
21. Following the applicant's assault, Miss A was placed in the care of the Minister for Community Services until 24 March 2006. According to the applicant, Miss A spent one year living with her aunt (the applicant's sister) in Mildura, before returning to the applicant's care. Seriousness of the matters
22. The Tribunal notes that the 1997 matter did not give rise to any criminal charges being laid against the applicant. The Tribunal also acknowledges that the bases upon which the applicant pleaded guilty to the 2002 offence and was found guilty of the 2003 offence are not certain. Relevantly, the applicant denies using a pole during the 2002 assault, and denies the extent of violence as alleged in the 2003 assault.
23. However, the Tribunal did not need to make specific findings as to the individual acts of the applicant on each occasion. Rather the Tribunal was satisfied on all of the available evidence (including the applicant's admissions) that harm was caused to a child on each of those occasions. Each of the matters was serious, particularly the offences in 2002 and 2003, and involved the infliction of harm on a child by a person with the responsibility of providing the child with care and protection. The applicant's actions would have undoubtedly caused the child psychological harm as well as physical harm. In respect of the 2002 offence, the child was conveyed by ambulance to hospital where she required treatment for her injuries. The injuries were of such severity that it was initially suspected the child's jaw was broken. The applicant's actions were deliberate in that they were used to inflict punishment on the child. The applicant's 2003 offending was aggravated in that it occurred while an apprehended violence order was in place, and was committed only seven months after the applicant's conviction for the 2002 offence.

(b) The period of time since the matter occurred and the conduct of the applicant since that time

1. It is approximately 13 years since the most recent matter occurred. She has one further (unrelated) conviction since that time; for a 2009 offence of unlicensed driving.
2. The applicant has been the primary care-giver of her seven children who range in age from 14 to 32 years. Three of her children live at home, including Miss A, who now has a baby daughter of her own. The applicant has seven grandchildren to whom she regularly provides cares. The applicant has worked in various employment, including as a cleaner. Further details about the applicant's history are provided in subsequent paragraphs of these Reasons.

(c) The age of the applicant at the time the matters occurred

1. At the time of the matters the applicant was aged 37, 42 and 43 years respectively.

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

1. The victim was 7 years old at the time of the JIRT investigation in 1997. The victim was aged 12 and 13 years old when the assaults occurred which gave rise to the criminal convictions. The victim was vulnerable in that she was dependent on the applicant for care and protection. The victim was also vulnerable as a result of her exposure to her parent's relationship of domestic violence, from which she was not able to be protected.
2. The victim suffered physical injuries as a result of the applicant's actions, and required hospitalisation following the 2002 assault. The victim was removed from her parents' care for a period of time following the 2003 offence. It is very likely that the victim suffered psychological harm as well as physical harm as a result of the applicant's actions.

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

1. There was a 30 year age difference between the applicant and the victim.
2. The applicant, as the victim's mother, was in a position of authority and trust. The victim was dependent on her mother for care and protection.

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

1. The applicant was aware the victim was a child.

(g) The applicant's present age

1. At the time of the Tribunal hearing, the applicant was 55 years of age.

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

1. In addition to her convictions for the offences against the victim, the applicant's criminal record includes (unrelated) convictions in 2002 and 2009 for driving offences, namely, driving unlicensed, driving while suspended, and driving an unregistered and uninsured vehicle.

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

1. From the records produced by the respondent it appears the applicant was provided with counselling in 1998 and 1999 in relation to domestic violence and anger management. It appears that the applicant has not engaged in any further counselling or treatment since that time.
2. The applicant relied on the oral and written evidence of Ms Hare, Forensic Psychologist, who assessed the applicant on 16 May 2016.
3. Ms Hare's assessment addressed, inter alia, the applicant's psychosocial history and offending history, and utilised the Historical Clinical Risk Management 20 V3 as a tool in her assessment of the applicant's risk for violence.
4. During the assessment, the applicant was questioned by Ms Hare about her history as a victim of domestic violence perpetrated by her husband over many years. The applicant acknowledged that her children were exposed to that domestic violence. However, according to Ms Hare, the applicant "evidenced seemingly limited insight with regards how this could have impacted the children", and "She did not make any connection between her daughter (Miss A's) past challenging behaviour and whether this could have been in response to the potential trauma that she had been subjected to within the family home".
5. In relation to the applicant's offending, the applicant told Ms Hare that her daughter, Miss A, was defiant and had challenging behaviours which included getting into trouble at school, which was an expensive fee-paying school. The applicant told Ms Hare she was angry and was trying to teach Miss A a lesson in relation to the 2003 offence. Ms Hare stated the applicant seemed to minimise the level of force she had used on Miss A, stating that the incident was not serious and therefore did not believe that her daughter had been overly upset by it. The applicant also minimised the likely impact of the incident on her other children who observed the assault, stating that they could have been upset but were more likely to be upset by Miss A throwing things. Ms Hare reported that the applicant struggled to identify any positive alternative strategies that she could have used to manage Miss A's behaviour.
6. In relation to the 2002 offence, Ms Hare reported that the applicant, rather than acknowledging the harm caused to her daughter and the seriousness of her (the applicant's actions), instead focused on the actions of the parents of the friend of Miss A, to whom Miss A sought help after the applicant's assault of her. Ms Hare stated: "(The applicant) presented as engaging in minimising her actions and the impact of these upon her daughter. She further seemed to engage in a level of justification, noting that presently she cares for Miss A's daughter because Miss A is always out with friends and has ruined her life, seemingly offering this as further qualification that Miss A was somehow to blame for the events, and that her life has continued on this trajectory. Thus while (the applicant) was able to recognise that her actions were unacceptable on one hand, she continued to evidence reduced insight".
7. In cross examination, Ms Hare states that the events of 2002 and 2003 came about not only as a result of a loss of temper by the applicant, but also the presence of other factors including the norms specific to the applicant's culture, including the belief that children should respect parents and that physical force as a means of discipline is acceptable. In this regard, Ms Hare suggested that future treatment may not necessarily be of benefit because it would require the applicant to challenge her own longstanding beliefs about her father and her own childhood experiences.
8. Ms Hare expressed the opinion that the applicant does not hold generally permissive views regarding physically disciplining children, however, in the circumstances involving Miss A, the applicant remains unable to view the situation objectively and struggles to manage her emotions adequately, meaning that she engaged in repeated excessive physical disciplining of Miss A after initial apprehension, and also continues to minimise and justify her actions on some level. Ms Hare also opined that the applicant's level of insight into her psychological functioning is limited, which raises the possibility that the applicant is minimising and/or lacking insight into any psychological symptomatology.
9. Upon using the HCR-20 V3, Ms Hare assessed the applicant as presenting with a definite history of problems with: 1. violence within the parent-child dynamic, 2. intimate relationship characterised by domestic abuse, 3. experience of harmful or traumatic events, including adverse child rearing experiences (her father's physical and emotional abuse) and domestic victimisation during adulthood; and 4. non-compliance with supervision response (breaching of the apprehended violence order).
10. Ms Hare also assessed the applicant as evidencing definite problems with reduced insight into the link between her experiences and her risk of violence. Ms Hare did not identify any specific future risk management factors for the applicant, noting the applicant's report of a stable living situation, lack of stressors and an adequate prosocial support network.
11. Significantly, Ms Hare states that although the applicant continues to engage in a level of justification and minimisation, Ms Hare opines that the applicant poses a low risk generally of engaging in future violence towards children. Ms Hare states that this does not mean no risk; and suggests that the risk the applicant poses is highly situation-specific. That is, for the risk to arise, Ms Hare suggests that the applicant would need to be significantly connected with a child in a parental-type role. Ms Hare further opines that the risk would be confined to a situation whereby the child was becoming increasingly defiant and unwilling to adhere to other forms of punishment consequences. Ms Hare further states: "A pattern of increased discord within the relationship would be evident over time, and the applicant would be exposed to internal triggers, including thoughts that she needs to teach the child a lesson for their own good, and feelings of anger. It is my understanding that such markers of increasing risk are not present currently. It also seems unlikely that such a scenario would unfold given that most of the applicant's children are now adults, and she disagreed that she would ever physically discipline her grandchildren". Ms Hare also states that disciplining grandchildren would not be consistent with the formulation of how the past violence occurred; which was in the context of a child-parent relationship.
12. Ms Hare concluded her assessment by indicating that although she is of the view that the likelihood of the applicant repeating her behaviour is low, she opines that if the applicant were to engage in a similar level of excessive discipline in the future the level of physical harm could be of moderate severity and would be likely to result in psychological and emotional harm to the victim.

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

1. The applicant is a mother of seven children ranging in age from 14 years to 32 years of age, and has seven grandchildren. The applicant was born in Samoa and spent time in New Zealand before immigrating with her husband to Australia in 1995. Since her arrival in Australia, the applicant has also spent periods of time in Samoa and New Zealand caring for family members.
2. During her childhood, the applicant was subjected to regular physical discipline by her father. The applicant has also experienced frequent domestic violence by her husband during their marriage. Initially in her evidence, the applicant said the domestic violence ceased in 2001. However, at a later stage in her evidence, the applicant said that the violence continued after this time. She also said that at one stage her husband was imprisoned in 2007 for seven months for assaulting her. The applicant admitted that her children were exposed to her husband's violence, which included hitting her with a golf club. She told the Tribunal that she is currently separated from her husband, having separated approximately one year ago. Three of the applicant's children live in her home, including Miss A, who has a baby daughter for whom the applicant regularly provides care.
3. In her evidence the applicant admitted to having used physical discipline to discipline her children. In particular, the applicant said she used a wooden spoon to smack the bottoms of her children when they were naughty. The applicant said that her daughter, Miss A, had challenging behaviours during childhood and that this was upsetting to her because she had sought to provide her daughter with an expensive private school education. The applicant admitted being very violent towards her daughter and that this was the wrong thing to do. The applicant states she and her daughter now live together in a happy environment. In her evidence, the applicant told the Tribunal that she spoke with her daughter the previous night about "her statement against me". The applicant said her daughter said that she was sorry about it, and the applicant replied to her daughter that she knew her (the daughter's) friends told her to do that (i.e. make a statement against the applicant).
4. The applicant was a children's Sunday school teacher at a church from 2002 to 2003, and assisted with the sacramental program. This involvement ended when the applicant commenced operating a small business (a shop) for a number of years. From about 1998 to 2005, the applicant was visited on a regular basis by a nun who provided social support to her and her family.
5. After her arrival in Australia, the applicant worked for a printing company and a florist. She was employed as a hotel cleaner from 2009 to 2011. In August 2014, she commenced work as a cleaner with a business holding contracts with schools operating before and after-school care facilities.
6. On 9 November 2015, the applicant commenced employment as a family day care educator with a family day care provider, BM. It appears that the applicant was working as a family day care educator in her own home providing before and after school care to children. Records produced by the respondent indicate that the applicant's working with children check clearance status was verified through BM's employer registration in the working with children check clearance database 33 times between 29 September 2015 and 29 January 2016. On 4 March 2016, the applicant's status was identified as "Barred", and the applicant's employment with BM was terminated. Records provided by BM indicate the applicant failed to mention any known reason not to engage in child related work while the applicant's working with children check clearance application was being processed. Records provided by BM also indicate that monthly visits were conducted at the applicant's home during the period of her employment and no incidents were reported. Records by BM also indicate that families of the children were contacted and expressed satisfaction with the care provided by the applicant.
7. In her written material, the applicant indicated that she was seeking a clearance to enable her to resume her work as a cleaner. She did not refer specifically to her employment as a family day educator; which was raised by the applicant only in response to questioning during her oral evidence. The circumstances of how the applicant came to be employed as a family day care educator were not apparent, nor was there clarity as to the circumstances surrounding the large number of verification checks made in relation to her working with children check clearance status. In her oral evidence, the applicant said that she had been providing family day care only to her grandchildren. She conceded that her primary motivation in obtaining a clearance is to enable her to be a family day care educator. She said that she did not want to operate a "big" service, and was happy to provide the care to her grandchildren only. In her oral evidence, the applicant also disclosed that she is studying a Certificate III in Child Care which she is due to complete in December 2016.
8. The applicant has no criminal history in New Zealand. There is no record of any complaints against the applicant during her employment as a cleaner, her involvement in the church, or during the period in which she has provided formal family day care. None of the applicant's other six children has been the subject of child protection notifications. Since 2003, there have been no other notifications regarding the applicant's conduct towards Miss A.
9. As a result of the applicant's inability to obtain a working with children check clearance, the applicant has not been able to continue her work as a cleaner at a school. As well, she is no longer able to be employed as a family day care educator. At the present time, the applicant is not in any paid employment. She continues to provide care on an informal (unpaid) basis to a number of her grandchildren.
10. In her submissions, Counsel for the applicant submitted that the applicant has had a sad life, with an early childhood characterised by anger and violence and a domestic violence relationship. Counsel for the applicant submitted that there has been a sufficient passage of time since the applicant's offending and her current circumstances are now different, including that she is no longer in a domestic violence relationship. Counsel for the applicant submitted that the applicant should be afforded the dignity of returning to the workforce to enable her to continue to provide for her family and to leave her past behind her.

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

1. The respondent opposes the application. The respondent acknowledged that the incidents in 1997, 2002 and 2003 are the only incidents of child abuse by the applicant, and further acknowledges that they were victim-specific. However, Counsel for the respondent submitted that if the applicant's actions were to be repeated, the risk to a child on a physical and emotional level would be great.

CONCLUSION

1. In this matter, the Senior Member and the General Member of the Tribunal held different opinions on whether the applicant poses a risk to the safety of children. As a result, section 57 of the Civil and Administrative Tribunal Act 2013 applies, which provides as follows: 57 Tribunal divided in opinion (1) If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal. (2) However, a question of law arising in proceedings in which the Tribunal is constituted by one or more members who are Australian lawyers is to be decided in accordance with the opinion of the member or the majority of the members who are Australian lawyers. (3) If the members are equally divided in their opinion, the opinion that prevails is: (a) in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers - the opinion of the presiding member, or (b) in proceedings in which the presiding member is not an Australian lawyer but one or more of the other members sitting are Australian lawyers: (i) on a question of law - the opinion of the member who is an Australian lawyer (or the member with the greatest seniority who is an Australian lawyer), or (ii) on any other question - the opinion of the presiding member. (4) In this section, question of law includes the question whether a particular question is a question of law.
2. In this matter, the Senior Member is an Australian lawyer. Accordingly, her opinion prevails. The conclusions of both members are set out below.
3. Ms J Anderson, Senior Member. In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the applicant a working with children check clearance, and to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law.
4. This is a finely balanced matter requiring careful consideration. I take into account that since 2003, there is no record of any further violent conduct towards children by the applicant. In this sense, there has been a significant passage of time that has elapsed. The applicant has not been the subject of allegations concerning any of her other children or children outside of her family. She is close to her family and has she has an important role as a carer and provider. All of those factors militate in the applicant's favour.
5. In addition, it is evident that violence and physical discipline has featured in the applicant's life. She has been the victim of domestic violence in her upbringing and during her marriage. It is apparent that the applicant is a simple and unsophisticated person, who has not had the benefit of a formal education and for whom English is not her first language. She also presents as a shy person who lacks confidence. She was tearful at times giving evidence. I have considerable sympathy for the applicant and found her to be genuinely motivated in her desire to provide for her family.
6. However, the severity of the applicant's offending is significant, involving repeated incidents of the applicant engaging in violent behaviours causing direct harm to a child. I remain troubled by the applicant's lack of insight into the criminality and severity of her actions. Although the applicant acknowledges that she did the wrong thing, it is of concern that she twice committed serious assaults on her daughter. Her 2002 offending occurred after the JIRT investigation in 1997 when the applicant was advised of the inappropriateness of her actions and the serious consequences that may arise. Her 2003 offending occurred notwithstanding the existence of a good behaviour bond and an apprehended violence order. In this regard, the intervention of the child protection and/or criminal justice systems was not sufficient to prevent the repetition of the applicant's conduct.
7. I recognise that at the relevant times the applicant was struggling to manage her daughter's behaviours. However this does not justify or excuse violent acts being carried out on a child. In my view, the applicant continues to fail to fully recognise the severity of her actions and instead sees her daughter as having a level of responsibility for the events that occurred. Indeed, the applicant's mention in her oral evidence that she had received an apology from her daughter the previous evening, and the applicant's claim that her daughter's friends persuaded her daughter to make a report to the authorities, demonstrates the applicant's tendency (even after a long period of time and an opportunity for reflection) to minimise her offending behaviour.
8. Furthermore, there were a number of inconsistencies and omissions in the applicant's evidence. This is of particular significance in the context of section 27(4) of the Act, which imposes a positive obligation on the applicant to fully disclose to the Tribunal any matters relevant to the application.
9. For example, during the psychological risk assessment on 16 May 2016 the applicant told Ms Hare that she was still in a relationship with her husband. She also indicated that the domestic violence perpetrated by her husband had not been present for the last decade.
10. In contrast, during her oral evidence before the Tribunal some three months after Ms Hare's assessment, the applicant said that she had been separated from her husband for one year. She also said the domestic violence perpetrated by her husband had ceased by 2001 when her son was born. However, when questioned by the Tribunal and Counsel for the respondent, the applicant said that the domestic violence had in fact continued after 2001 and was present during the periods in which the offences were committed and afterwards. The applicant's inconsistency on this topic is relevant not only to the issue of her credibility but is also relevant to the nature and extent of the violence to which children were exposed while in her care.
11. In addition, in her written material the applicant failed to disclose her work as a family day care educator and the fact of her current child care studies. Indeed, the written submissions filed by the applicant refer to the applicant working only as a cleaner at a day care centre (and a school). Furthermore, the applicant's submissions refer to the fact that the clearance was being sought by the applicant in order to resume her cleaning work where the likelihood of the applicant ever coming across a child in an unsupervised setting would be very slight. However, this submission can no longer be maintained as it is now apparent that it is the applicant's intention to provide family day care in her own home, where the care she would be providing to children would be, for the most part, unsupervised.
12. I note the applicant's claim that she intends to provide family day care for her own grandchildren. However, in my view, it is both relevant and significant that the applicant did not fully disclose her employment as a family day care educator and her decision to undertake child care studies. Notwithstanding the fact that English is not the applicant's first language, I could not be satisfied that such omissions and inconsistencies were purely inadvertent, particularly where they are clearly relevant to the matters being considered.
13. I acknowledge that the applicant has been assessed by Ms Hare as presenting a low risk of violent reoffending generally. However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children. In addition, whilst Ms Hare's analysis was comprehensive and detailed, the qualifications to her opinion are important. In particular, Ms Hare states that the situation-specific risk the applicant poses is of moderate severity and would be likely to result in psychological and emotional harm to the victim. I could not be satisfied that this risk of violence would not arise in any situation other than that involving a child-parent relationship where the child is exhibiting defiant and rebellious behaviours. Moreover, the fact that the applicant is in fact wishing to formalise her role in child care is, in my view, relevant to the question of the applicant's risk and the likelihood of circumstances arising which would give rise to such a risk. In this regard, there may well be instances where a child in the applicant's care demonstrates very challenging behaviours, requiring appropriate intervention and management.
14. Furthermore, I note that the applicant does not appear to have sought specific treatment or counselling since her criminal convictions. Whilst Ms Hare expressed an opinion that future treatment may not necessarily be of utility, there is, at the present time, limited evidence to indicate that the applicant has developed sufficient insight into her offending conduct, its effect on children, and the measures she needs to adopt to ensure it does not re-occur. This is especially significant given the applicant's intention to obtain paid employment in the provision of formal day care to children. Although the applicant has indicated that she intends to provide the care only to her grandchildren, this is not necessarily material to the Tribunal's determination. If the applicant is granted a clearance she may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
15. Having regard to the severity of the offending, the repeated nature of it, and the applicant's continued lack of insight into her offending behaviour, I could not be comfortably satisfied that the applicant does not pose a real and appreciable risk to the safety of children. Furthermore, I could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective measures in circumstances where a child is at risk. In coming to this conclusion, I am mindful that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration.
16. Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, I find on the balance of probabilities that the correct and preferable decision is that the applicant poses a risk to the safety of children and should not receive a working with children check clearance.
17. Finally, it is acknowledged that the applicant plays an important role as a provider for her family. The Tribunal's decision does not prevent the applicant from continuing to provide informal care to her grandchildren. Nor does it prevent the applicant from obtaining work in non-child related employment.
18. In addition, the Tribunal's refusal on this occasion to affirm the respondent's decision to refuse a working with children check clearance does not necessarily mean that the applicant will fail to obtain a clearance in the event she makes a further application in the future. Whilst a person is prevented from making a further application for a period of five years after the refusal notice was given, a change of circumstances can invoke the discretion of the Children's Guardian to permit a further application earlier than five years (see sections 21(1)(a) and 21(2)(d)).
19. In this regard, I find that the applicant is genuinely motivated to sustain meaningful employment. The fact that she is undertaking studies in child care is to be commended. It may well serve to develop the applicant's knowledge and understanding of the impact of violence on children, and about child protection issues and concerns generally. The applicant's religious faith and her willingness to engage with those in the religious community are also important factors which may provide a source of support for the applicant in her wish to obtain employment, as well as offer opportunities for the applicant to develop insight and reflection into her past actions. Upon completion of her studies and in the event she engages appropriate interventions and/or strategies, the applicant may wish to consider an early application for a working with children check clearance in the future. However, it will be a matter for the Children's Guardian to determine, on the information provided by the applicant at that time, as to whether that application be permitted.
20. Ms M Bolt, General Member. I differ with the Senior Member's opinion in previous paragraphs about the likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition. I have come to a different conclusion in this matter. My brief reasons are as follows.
21. The applicant gave evidence that English is her second language. She said she is not a smart person and likes working on her own as a cleaner as her English is 'not good.' The psychologist, Ms Hare, described her as having limited cognitive ability, at the lower end of average. She did not do psychometric testing on her because of her English skills. The respondent's counsel said in oral submissions that the applicant required a level of prompting, but that could be a lack of sophistication or language.
22. The applicant was tearful at times when she appeared before the Tribunal. She said that she was 'sorry' for her conduct towards her child. Ms Hare was asked about any 'minimisation' on the applicant's part .She said that for the applicant to accept the way she had 'disciplined' her child was unacceptable, she would have to confront the way her father had treated her and her siblings in their childhood. Accepting full responsibility for what she did would mean her own childhood was not idyllic. Ms Hare was also asked whether there was any utility in the applicant undertaking counselling. She said it would be good for her own wellbeing in respect of domestic violence issues, but it was not necessary from a child protection standpoint.
23. Ms Hare said that the applicant possibly does not learn from experience as quickly as some people might. The applicant has not reoffended for 13 years, a significant passage of time. There are no complaints from school or work. Both are important factors as they are evidence of long term change. The applicant has been tested in that intervening period with many stressors in addition to the care of her own 7 children. These include her relationship with a violent husband who had been gaoled for a period for his assault on her; her travelling overseas to her island home to care for her sick mother; her unemployment and financial difficulties that meant that she had to rely on the Church for additional material assistance.
24. Regard is had to the all the written material, the evidence given and submissions made by the parties at the tribunal hearing. The psychologist's evidence is that the applicant is a low risk and does not require counselling from a child protection standpoint. A lengthy period of time has elapsed since the offences. The child care certificate training that the applicant is undertaking can be viewed as a positive. It might enhance her insight into appropriate discipline strategies and child protection. The applicant does not present 'a real and appreciable risk' to the safety of children and young persons in the terms considered by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949 at 42.
25. The decision of the Children's Guardian dated 11 February 2016 to refuse to grant the applicant a Working with Children Check clearance should be set aside and in substitution for that decision, the applicant should be granted a Working with Children Check clearance

ORDERS Having regard to section 57 of the Civil and Administrative Tribunal Act 2013, the Orders of the Tribunal are as follows: 1. The decision of the Children's Guardian dated 11 February 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 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: 21 November 2016