CMR v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-09-09|Before: Emeritus Professor P

Introduction

The applicant, seeks review of a decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance (clearance): see Child Protection (Working with Children) Act 2012 (WWC Act), subsection 27(1).
Given the sensitive nature of proceedings such as these, when the applicant's application first came before the Tribunal, at a directions hearing, by consent, the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Hence the pseudonym CMR is used. In this decision we refer to CMR as the applicant
There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: Civil and Administrative Tribunal Act 2013, s 30; Administrative Decisions Review Act 1997, s 7 and WWC Act, s 27(1).
The applicant's application was heard before us on 9 September 2016. At the conclusion of the hearing we reserved our decision.
Our role in determining this application is to decide what the correct and preferable decision is having regard to the material before us, including any relevant factual material and the applicable law: Administrative Decisions Review Act, s 63(1). In undertaking this task, the primary issue for us to decide is whether the applicant "poses a real and appreciable risk" to the safety of children.
For the reasons that follow, we have decided, having regard to the material relied on by the parties, the evidence given at the hearing and the relevant provisions of the WWC Act, we are not satisfied the applicant poses a real and appreciable risk to children today. Hence we find the decision of the respondent is not the correct and preferable decision and should be set aside and in substitution thereof we have made a decision that the applicant be granted a clearance.

Background

The applicant made his application for a clearance under the WWC Act, in February 2015: WWC Act, s 13. As a "matter" specified in Sch 1 of the WWC Act applied to the applicant, the respondent was required to undertake a risk assessment: WWC Act, ss 14 and 15. The "matter" was an August 1997 charge, for an offence of maliciously inflicting grievous harm contrary to section 35(b) of the Crimes Act 1990, as it applied at that time: WWC Act, Sch 1 cl 1(2)(a). The applicant was 20 years of age at the time. He defended the charge on the basis it was an accident. In June 1998, the applicant was found guilty and convicted by the Magistrate. He was ordered to perform 200 hours of community service. In December 1998, the applicant was unsuccessful in his appeal. On appeal, his conviction was confirmed and he entered a bond to be of good behaviour for three years.
On 4 March 2016, the respondent determined to refuse the applicant's application for a clearance as she was satisfied, after conducting a "risk assessment", that he poses a risk to the safety of children: WWC Act, s 18(2).

Relevant WWC legislative scheme

The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: WWC Act, s 3.
Section 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act.
The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless the person holds the relevant working with children check clearance, or there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
Section 6 and 7 of the WWC Act broadly defines the term "child-related work". It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. However, a clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
A "worker" is defined in s 5(1) of the WWC Act to mean: " … any person who is engaged in work in any of the following capacities: (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),"
Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants for a clearance who are "disqualified persons." The subsection defines a "disqualified person" to be a person who has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Sch. 2 of the WWC Act, or has been charged with such an offence and the proceedings in regard thereto are pending. Where a person falls within this description, subs 18(1) provides the respondent must refuse that persons' application for a clearance. Such persons are presumed to pose a risk to the safety of children: see WWC Act, s 28(7).
The applicant in these proceedings is not a "disqualified person", as his conviction is not a conviction for an offence falling within Sch 2. However, because of his 1998 conviction he was subject to an "assessment requirement": see WWC Act, s 14 and Sch 1 cl 1(1)(b) and s 15. Section 15(4) sets out the matters the respondent may have regard to in conducting that assessment.
In regard to persons who are not "disqualified persons", but are subject to a "risk assessment requirement", subs 18(2) of the WWC Act provides that the respondent must grant a clearance to such a person unless she is satisfied, following a risk assessment, the person poses a "risk to the safety of children".
The Tribunal has accepted the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "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."
A person who has had his/her application for a clearance refused by the respondent under subs 18(2), has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
Section 30(1) of the WWC Act sets out the factors the Tribunal must consider in determining an application for external review. That section was amended in November 2015, by the insertion of an additional cl 18(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. The amendment does not apply to this application: see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 46 savings provision cl 16.
Section 30(1) provides: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of … any matters that caused a refusal of a clearance …, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
The above matters are similar to those the respondent may have regard to, when undertaking a risk assessment under s 15 of the WWC Act.
In November 2015, an addition requirement, s 30(1A) was inserted (see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31). A similar amendment was made to s 15 of the WWC Act. However, these amendments do not apply to the applicant as he made his application for a clearance prior to s 30(1A) and 15(4A) coming into force.
Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. As we have already noted, a clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].

Evidence before the Tribunal

In support of his application the applicant relied on: 1. the material he had provided to the respondent in the course of the risk assessment; 2. a letter/statement he wrote, dated 1June 2016; and 3. a psychological evaluation, dated 6 July 2016, of Katherine Pacey, psychologist.
The applicant and Ms Pacey gave oral evidence at the hearing and they were both cross-examined by counsel for the respondent.
The respondent relied on four small bundles of documents as follows: 1. the s 58 documents, which included the responses the applicant provided in regard to the respondent's risk assessment and responses the respondent received in the course of its enquiries with the Local Court and District Court, Family and Community Services and former employers of the applicant; 2. the applicant's criminal and AVO history; 3. responses the respondent received from the Australian Federal Police in regard to dishonesty offences of which the applicant was convicted in 2000, and 4. the appeal results of the District Court and part of the transcript of the applicant's 1998 Local Court proceedings.
The respondent also filed and served written submissions.

Consideration

We note the jurisdiction of the Tribunal in matters under the WWC Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.
The term "safety to children" is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children's Guardian [2016] NSWCATAD 65 at [9] - [15] and [67] and BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30].

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

The offence of inflict grievous bodily harm upon a person carries a maximum penalty of seven years imprisonment, if dealt with on indictment. If dealt with summarily the maximum penalty is 2 years imprisonment: Criminal Procedure Act 1986, s 267. The applicant's offending was dealt with summarily. Nevertheless, it is a serious offence, especially where the victim is a young child.
The police Facts Sheet describes the circumstances giving rise to the charges made against the applicant as follows: 1. on the day in question, in the latter part of September 1997, police attended the local hospital accident and emergency section and spoke to medical staff in relation to injuries sustained by a 3-year-old female child. The injuries were recorded as being a "severe deformity" to the child's right forearm and "swelling and abrasions to the left side of her face, swelling to the top of her right thigh and small circular bruising under each upper arm." The Facts Sheet noted that the x-rays confirmed that both bones in the child's forearm were broken which was the cause of the swelling and deformity of her arm. When asked by the doctor how she had injured her arm the child replied, "[Name of applicant] hurt me;" 2. police were informed that the child had been left in the care of the applicant while the child's mother, grandmother and another woman went out for the evening. At the time the applicant was engaged to the mother of the child. However, he was not the natural father of the child; 3. during that evening, the child's mother telephoned the applicant on a number of occasions. During one of those telephone calls the applicant said the child had fallen and hurt her foot, but at the time of the call she was sleeping in the lounge room. There were two further telephone calls to the applicant by the mother. However, the applicant said nothing further about any apparent injury to the child; and 4. when the mother came home, the applicant immediately indicated that the child had injured her right arm. The child was taken to hospital and police were called.
After attending the hospital, the police took the applicant to the local police station where he was cautioned and interviewed. The applicant explained to police that after the child's mother, grandmother and the other woman left the house he began to play with the child, chasing her around the house. He said that while he was chasing her he heard a "thump" and when he got to the hallway he said he found the child lying face down on the floor. The applicant said he picked the child up and put her on her sofa lounge in the loungeroom where she fell asleep. The applicant said the child did not cry out when he made the first attempt to lift her up, but he did notice a red substance on her face. He said he thought it was tomato sauce. The applicant said the child did not wake-up until after the last telephone call from the mother. He said the child woke up yelling and it was at this time that he noticed the deformity to her forearm. The applicant said the child went back to sleep.
The Facts Sheet goes on to say that in response to several questions as to why he did not seek medical, or other assistance for the child once he knew she was injured, the applicant responded by saying an hour had elapsed from the time he said he first noticed the injury until the mother returned home. The police Facts Sheet went on to say the applicant denied any suggestion he had caused the injury or assaulted the child in any way. It was also noted that the applicant denied a number of direct allegations regarding losing his temper with the child or using excessive force when picking the child up.
A doctor giving evidence at the applicant's criminal trial said that, in his opinion, the injuries seen on the child were such that it was "hard to see how they could have occurred from a simple fall" even a fall down a flight of stairs or off a balcony within a house. The doctor went on to say, "the bruises on the inside of the arm [of the child] most probably are from excessive squeezing by adult hands."
The applicant also gave evidence at his trial. He again said the child had fallen. He said he tried to pick her up by her wrist and she didn't move or cry. He said she didn't say anything so he put her back down and picked her up under the arms. He said he put her on his hip and that she had a little whinge and he put her down on her little sofa bed in front of the TV. He said she went to sleep. The applicant acknowledged there had been phone calls from the mother. He said the first call was around 9 o'clock. The second call was around 10 o'clock and a third phone call was around 11:30pm. It was the applicant's evidence that after the mother had called the third time the child woke and told him she had a sore arm. He said he lifted up the sleeve and that was when he noticed that there was a deformity in her right wrist. He thought at the time the child's mother would be home soon so he would just wait and they would get her to the hospital as soon as she got home.
In her findings, the Magistrate said she could not accept the applicant's explanation of events. Instead, her Honour found that the "injuries must have been inflicted in some way by the [applicant] whether it was through an act of recklessness or whatever, but I am not satisfied that his explanation of the child having a fall can be reasonable and consistent with the injuries that were sustained by the child."
In addition to being charged with an offence of maliciously inflict grievous bodily harm, the applicant was also charged with an offence under s 26 of the Children and Young Person (Care and Protection) Act 1998 (i.e. an offence of having, without reasonable excuse, neglected to provide adequate and proper medical aid for the child). The Magistrate found that s 26 charge had not been proven. Her Honour said that she was satisfied that the child probably did go to sleep and the applicant was waiting for the mother to come home and it wasn't until later on that he discovered that there was a serious injury to the child's arm.
In these proceedings, the applicant has continued to adhere to his account of events, namely that the child fell during their chasing game. Of concern to the respondent is that the applicant has failed to adequately explain what occurred that particular evening.
We note that in her statement to police, the mother said that she and the applicant had met earlier in the year and that they had got engaged in June of that year. She said that not long after they became engaged the applicant moved into her home with her child. She explained that since the applicant had moved into her home he had formed a very close relationship with her daughter. She also said she had never known the applicant to get angry with her daughter or even smack her. She said the applicant had only ever tapped her daughter softly on the hand. She also said she had never seen the applicant lose his temper or become abusive towards anyone. She said: "the only thing that worried me about [the applicant] playing with [the child] was that sometimes he would get overactive, not really rough but playing with [the child] like she was a boy. On these occasions, he would normally be giving her a horseback ride, not round and round but bouncing her while she was sitting on his back…"

(b) the period of time since those matters occurred and the conduct of the person since they occurred,

It is 18 years since the applicant committed the trigger offence.

The applicant was 20 years of age at the time of the trigger offence.

(d) the age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim

The victim, a child, of the trigger offence was 3 years of age. She was in the sole care of the applicant at the time she sustained her serious injuries. She was especially vulnerable because of her age and the fact that she was in the applicant's care at the time.

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

The applicant was 17 years older than the child at the time of the trigger offence. He was also the child's sole carer at that time.

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

The applicant knew the victim was a child and that she was 3 years old.

(g) the person's present age,

The applicant is now 38 years of age.

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

The applicant has a number of other convictions (i.e. including findings of guilt with no conviction recorded). In December 1997, he was charged with an offence of maliciously damaging a motor vehicle. The Court found the offence to have been proven and the applicant was released upon entering a bond (recognisance) to be of good behaviour for 12 months. It would appear from the police Facts Sheet that the applicant became embroiled in an argument with his former fiancé in the early hours of the morning of the day in question. The argument occurred outside a local hotel where the applicant's former fiancé and two female friends had been drinking. The applicant appears to have lashed out with his foot at the vehicle the women were in and in doing so he damaged the rear near side panel of the vehicle.
In 2000, the applicant was convicted of a number of stealing offences contrary to s 99A of the Crimes Act 1900 (ACT). The charges related to three cheques the applicant had stolen from his employer which he presented to the bank and withdrew a total amount of $3,000.00. The cheques were made out in the name of the applicant and they were recorded in his employer's books as being a salary cheque. When questioned by police the applicant readily acknowledged his offending. In his oral evidence in these proceedings the applicant explained that at the time he was associating with the wrong people. He said he believed his employer had been treating him badly and it was for this reason that he engaged in the unlawful conduct.
The applicant has no further convictions since 2001. However, he does have an Apprehended Violence Order history. In December 2004, an interim Apprehended Violence Order was issued against him by his former wife. That order was confirmed in January of the following year. He said that he married in 2004. However, two months later they each went their separate ways. He said he did recollect he and his wife had an argument one day around the time they separated. He said he remembered police coming. He said after the police had been he moved out and found a flat. At the same time he got a job on a cruise ship. He said it was not until he returned some time later that he became aware of the AVO. His evidence in these proceedings was that, contrary to what was contained in the police Event Report, he had never spoken to his wife in the manner alleged. He said he and his wife divorced two years later. However, they had separated from the time the police had come to their home.

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

In the written submissions counsel for the respondent, it was conceded that the trigger offence was isolated in the applicant's history. It was also conceded that as the trigger offence occurred some time ago, when the applicant was young, it was unlikely to be repeated. However, counsel went on to say that in the event the trigger offence were to be repeated the risk of the harm to a child is significant given the nature and extent of the injuries sustained by the child, the victim of the offence.
We agree the likelihood of an offence of the kind the applicant was convicted in 1998 is unlikely to be repeated. The applicant has since matured and now has a good understanding of child protection issues. While he continues to assert the injuries suffered by the child in 1997 were an accident, we are satisfied he fully understands what is required of him when he has a child or young person in his care. He has a 10-year-old daughter from a relationship subsequent to the separation from his wife. In his evidence, he explained that he and the mother of his daughter have a verbal agreement about joint parenting of the child. He said that he has his daughter every second week and he has been doing so for 10 years. He said he has a good relationship not only with his daughter but also with her mother. He said he has always sought help immediately when his daughter becomes ill or suffers some other form of harm. He said his only explanation of what occurred in 1997 is that he was naïve - he was young and inexperienced. He said he now has a stable job and a stable partner.
The applicant also gave evidence of having participated at school functions at his daughter's school, including one to one reading groups. He has also participated, as a volunteer, in a number of community-based organisations. There is no record of any complaints having been made against the applicant in regard to his care of his daughter or his role as a volunteer of the community-based organisations he has been a part of.
In support of his evidence, the applicant also relied on the evidence of Ms Pacey. While Ms Pacey is not a forensic psychologist she is qualified to undertake a psychological evaluation of the applicant. In this regard, Ms Pacey said the aim of her assessment was to assess whether the applicant had any psychological/behavioural indicators of maladaptive/inappropriate ideations or actions liable to pose risks and acts of harm to persons under the age of 18 years. She said the applicant presented as open and forthright in his admissions of culpability for his actions 19 years ago. In her report, Ms Pacey concluded that in her opinion the applicant appeared to exhibit no thoughts or behaviours that would indicate he posed a risk to the safety of children, or people under 18 years of age. In cross-examination Ms Pacey acknowledged the applicant had failed to disclose his stealing offences in 2000. However, having been informed of these convictions, Ms Pacey said the opinion she expressed in her report remained the same. Ms Pacey did however agree that it could be damaging to a child (including psychological damage) not to seek help immediately where a child is injured.

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

The applicant provided two references from persons he has worked with in the community sector. Each referee said he had known the applicant for a number of years. They both state they have no reservation whatsoever in declaring that the applicant is a man of responsible actions, of high character, suitable to hold a position of trust and that they have seen him behave appropriately at all times around young people.

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

The respondent acknowledges that since 1998 there has been no further complaints made against the applicant in regard to the manner in which he has dealt with a child or young person. The respondent also acknowledges that it is now 18 years since the offending conduct occurred and he is now much older. The respondent also recognises that a factor in the applicant's favour is that he has shared custody of his daughter with her mother. However, the respondent submits that the applicant's failure to fully explain what occurred on the night in question in 1997, means we can be satisfied the applicant continues to pose a risk to the safety of children today.

Conclusions

We reiterate, the applicant is not a disqualified person and there is no legislative presumption that he poses a risk to the safety of children.
As we have noted at the commencement of these reasons for decision, in this review application, the ultimate issue for us to determine is whether, in the circumstances, having regard to the paramount consideration in section 4 of the WWC Act and considered the matters in subsection 30(1) of that Act, we can be satisfied the applicant today poses a real and appreciable risk to the safety of children.
We agree the offence of which the applicant was convicted in 1998 is a serious offence as it involved a young child who was in the applicant's care at that time. The offence occurred some 18 years ago when the applicant was 20 years of age. He has not committed an offence of a similar kind since that time. The evidence is that he has matured and he has worked with children as a volunteer since that time and there have been no complaints made against him in that role. The applicant has also had shared custody of his 10 year old daughter for many years and his care of his daughter has not come to the attention of the authorities at any time. On the contrary, he appears to have a good relationship with the child's mother. These are all factors in the applicant's favour as conceded by the respondent.
The applicant has however been found guilty of further offences on two occasions in 1998 and 2000. The 1998 offence appears to have occurred not long after he was found guilty of the trigger offence. It was not child related and was not serious as reflected in his sentence. The 2000 offence was an offence of dishonesty and not child related. The applicant was in his early 20s when he committed that offence. We found he gave an open and frank account of that offending and he has not committed a further offence of that kind in the last 16 years.
While we understand the respondent's concerns about the applicant's account of what occurred on the night of the 1997 trigger offence, we find on the material before us that the applicant is unlikely to offend in a similar manner again. In our view, the evidence points to the applicant having matured over the years and that he has a good understanding of child protection issues -especially through having shared custody of his daughter and also through working with young people.
Accordingly, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children today. On the basis of this finding, we find that the decision of the respondent is not the correct and preferable decision. Hence we order: 1. The decision of the respondent, made on 4 March 2016, to refuse the applicant's application for a working with children check clearance is set aside. 2. In substitution of 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: 16 March 2017

Child Protection Legislation Amendment Act 2015(NSW)

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (6)

Cases Cited (5)