CLH v Children's Guardian

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Bundle of documents titled 'Evidence of the Applicant' filed 13 May 2016 containing Forensic Psychology Report from Ms J Pratley dated 4 May 2016 and Affidavit of CLH - Exhibit A1; 2. Application filed 18 February 2016 including letter dated 15 February 2016 containing reasons for refusal of the Working With Children Check clearance - Exhibit A2; 3. Document titled 'Outline of the Applicant's Submissions' handed up at the hearing - Exhibit A3.
2. The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 21 March 2016, comprising 233 pages - Exhibit R1; 2. Further documents filed by the respondent on 3 June 2016 comprising documents produced by Juvenile Justice in response to Summons to Produce - Exhibit R2; 3. Submissions of the respondent filed 3 June 2016 - Exhibit R3.
3. The applicant gave oral evidence and was cross-examined on 10 June 2016. The psychologist was cross-examined on the same date.

Legislative Provisions relevant to the decision

1. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
2. There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
3. The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
4. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
5. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
6. The applicant was properly the subject of a risk assessment due to the provisions of clause 1 (4) of Schedule 1 of the Act which reads as follows: (1) A person has been convicted of an offence under section 61 of the Crimes Act 1900 committed against a child.
7. One of the offences with which the applicant was charged is an offence specified in clause 1 (4) of Schedule 1 of the Act.
8. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.
9. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children.
10. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to section 28(7) of the Act if he were a disqualified person.
11. As previously stated, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
12. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

The evidence to be considered

1. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15(4) for the purposes of carrying out their risk assessment.
2. Section 30 of the Act provides as follows: 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) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
3. The evidence is considered below under subheadings which refer to the considerations under section 30(1) of the Act.

The seriousness of the offences that caused a refusal of a clearance

1. The trigger offence in this matter is the applicant's conviction for common assault on a child, contrary to s 61 of the Crimes Act 1900 (NSW) (the "Crimes Act"). The assault occurred at a suburban shopping centre on 5 August 2010. The victim of the assault (KH) was aged 15 years. The applicant pleaded guilty both to the common assault and to a charge of breaching an AVO.
2. In 2009 when the applicant was 16 years old his girlfriend (CN) left him for another male (AH). The applicant was having dinner with his parents and sister at the food court at a suburban shopping centre when one of AH's brothers (KH) approached his sister and spat at her. She was six years old at the time. CLH ran after KH. CCTV footage of the incident shows the applicant using his right hand to throw a punch to the back of KH's head and that KH ducked the punch and the applicant fell over before getting up and chasing KH. No person suffered any injury and CLH pleaded guilty to the charges and entered into a good behaviour bond for 12 months.
3. As is noted in the Submissions of the Respondent (Exhibit R3) at paragraph 15, it is apparent from the section 58 documents and the Applicant's Affidavit that there is a broader context for the trigger offence relating to CLH's girlfriend leaving him for AH. Prior to the trigger offence, the applicant was involved in three separate incidents relating to AH.
4. On 1 February 2009 CLH was involved in an incident in the carpark at a suburban KFC. The applicant was in a car with his mother who stopped at the traffic lights. A bottle hit the car and CLH saw AH standing not far from the car. CLH got out of the car and ran into the KFC after him. He asserts that he and AH got into a physical fight and that his mother ran into the store and broke up the fight. He agrees with the facts outlined on page 1 only of the police report (COPS report Event number 36221533). The matter was reported to the police who applied for a Provisional AVO against CLH for the protection of AH and CN which was granted on 2 February 2009 and served on him on 7 February 2009. A final AVO for a period of three years was served on CLH on 19 May 2009.
5. A second incident occurred on 8 February 2009 at a house party. CLH states in his affidavit that when he arrived at the party he was not allowed in so his friends and he remained at the front of the house. An exchange of nasty words took place between the applicant and CN. CLH alleges that he then walked off down the street and that AH and his were punched multiple times. CLH states that he later realised he was covered in blood and that his hand was injured. He denied having a knife. The police attended and when the police were distracted CLH ran away and hid. The following morning he was arrested at home. Bail was refused and the applicant served six weeks in gaol during which time his left hand was operated on. The applicant does not agree with the facts as stated in the police report but states that he pleaded guilty to the charges against him.
6. The respondent asserts in its submissions that the applicant was charged with being armed with intention to commit an indictable offence, wielding a knife in a public place, recklessly wounding AH whilst in company, contravening an AVO, assault occasioning actual bodily harm while in company, and affray. The respondent states that the applicant pleaded not guilty to each of the offences; that the charge in respect of reckless wounding was withdrawn; and the remaining offences were found proved after the hearing at the Children's Court. On 30 June 2009 the applicant entered into a recognizance for a period of 12 months under the supervision of Juvenile Justice Community Services, to be of good behaviour and to participate in counselling as directed by Juvenile Justice. The respondent notes that the applicant's evidence that he pleaded guilty is inconsistent with the objective evidence as noted on the Children's Court Master Bench Sheet.
7. The third incident occurred on 24 January 2010 at a nightclub where the applicant was celebrating his seventeenth birthday with friends. AH was at the nightclub and the applicant got into a fight with him. He attended the police station the following day and was charged and arrested. He agrees with the police facts and pleaded guilty to all charges.
8. The offences of physical violence for which the applicant was convicted, including offences committed against a protected person, are serious offences. The catalyst was the breakup of a relationship between the applicant and CN. In respect of each of the convictions, the victims were known to the applicant and were of similar age to the applicant.

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

1. The applicant has not been the subject of any charge or conviction since May 2010, a period of six years.

The age of the person at the time the offences or matters occurred

1. The applicant was sixteen or seventeen years of age at the time each of the offences in respect of which he was convicted occurred. He turned eighteen in January 2011.

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

1. The applicant's victim (KH) was 15 years of age at the time the trigger offence occurred. The applicant's other victim (AH) was aged 17 and 18 years of age at the time the other offences occurred.
2. The applicant is a black belt in Tai Kwon Do. The respondent asserts that this added to the vulnerability of the applicant's victims.

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

1. The applicant is 18 months younger than AH and 12 months older than KH.

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

1. The applicant knew that the alleged victim was a child.

The person's present age

1. The applicant is now 23 years of age.

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

1. The applicant has a serious criminal record as a juvenile. He does not have a criminal record as an adult. He has engaged in counselling and treatment.

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

1. The applicant relies upon the evidence of himself, the Statutory Declarations of persons from whom he has received counselling and guidance (Exhibit R1, pages 171 - 173) and the report of the psychologist Ms J Pratley, to establish that he is not a risk to children.
2. During the hearing the applicant stated that he has 'shaken hands' and apologised to most of the people to whom he was violent in the past and that he is now on 'reasonable terms' with his former girlfriend, CN. The applicant asserted that he now understands emotions and has learned what triggers him feeling angry and how to manage such emotions. He acknowledged that he had previously made poor choices as to how to deal with his anger and provided a recent example as to how he managed his emotions more appropriately following the death of his father. CLH stated that he is a black belt in Tai Kwon Do and that he will regret forever that he broke the principles he learned by 'taking it into the streets. He is remorseful about his actions as a juvenile and wants to be able to assist young people to avoid following in his footsteps.
3. The applicant was assessed by Ms Pratley and an Intern Clinical Psychologist, Ms S Bennett, on 23 April 2016 and 2 May 2016. CLH sought the assessment as part of his application for review of the decision to refuse him a Working with Children Check clearance. She concludes that: As aforementioned, CLH's risk of violent recidivism is low, based on his current risk and protective factors. If he were to reoffend, it would most likely be against a same-aged peer rather than a child or young person, and as aforementioned, this seems unlikely.
4. The Children's Guardian cross-examined Ms Pratley. Ms Pratley stated that CLH's past offences were against peer-aged people committed by him to gain status and notoriety among his peers. Such behaviours do not appear to be features of CLH's current presentation as a result of him now being older and also because of the psychological insights he has gained as a result of the therapy in which he has engaged.
5. Counsel for the applicant submitted that not only does the applicant pose no real and appreciable risk to children, he sees himself as a protector of young people and wants to help them to avoid problems with the law and criminal contact. CLH is in a really good position to work with children because he can impart the wisdom and knowledge he has gained. His dedication to working with young people is evidenced by his studies to date and a number of the subjects he has successfully completed were about working with children. The Statutory Declarations of persons who have worked with CLH over several years evidence the positive change in his behaviour as a result of his determined effort to turn his life around.
6. Counsel for the respondent agreed that CLH has gained maturity and insight as a result of which he has turned his life around. She acknowledged that 'it is commendable' how CLH has dealt with his grief following the death of his father.

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

1. The applicant has provided information including a psychological assessment.
2. The Children's Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
2. The Children's Guardian submits at paragraph 63 of the Submissions of the Respondent (Exhibit R3) that the respondent neither consents to nor opposes the application for review. It is noted that at the hearing the Children's Guardian appeared highly supportive of the applicant being granted a Working with Children Check clearance.

Consideration

1. The behaviour and conduct which triggered this assessment are serious matters. The applicant does not dispute that he engaged in violent and anti-social behaviour as a juvenile. He has, however, for the past six years engaged in prosocial behaviour.
2. The applicant has matured with age and has undertaken significant counselling and treatment to change his behaviour. He has successfully completed educational courses of relevance. These learning experiences and qualifications are important in mitigating the risk of CLH engaging in further violent activities.
3. He has acknowledged and shown insight into the effect of his anger and violence on others and has taken steps to apologise to his victims. The applicant has shown remorse and wants to be able to assist young people to deal appropriately with their problems and anger.
4. The Tribunal has regard to the lapse of time since the last offences were committed by the applicant. The Tribunal also has regard to the fact that the offences were committed by CLH against his peers, not against children who were significantly younger than him.
5. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

1. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
2. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
3. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.
4. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to children.
5. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does not pose a risk to the safety of children and should therefore receive a Working with Children Check clearance.

Orders

1. The orders of the Tribunal are that: 1. the decision of the Children's Guardian dated 15 February 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside; and 2. In substitution thereof the respondent is to grant the applicant 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: 06 July 2016