The applicant, CNA, is an authorised carer under section 136 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act) and she has made two applications for administrative review. These are:
1. an application, under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), seeking administrative review of the decision of the Children's Guardian (the respondent), to refuse her application for a working with children check clearance (a clearance) (file no 1610228). The respondent refused the applicant's application for a clearance as she was satisfied, after conducting a "risk assessment", in accordance with ss 14 and 15 of the WWC Act, that she poses a risk to the safety of children: see WWC Act, s 18(2); and
2. an application, under s 245 of the Care Act, seeking administrative review of a decision of the Department of Family and Community Services to cancel her authorisation as a carer and to remove her grandchildren from her care (file no 1610229).
As we have explained at [20] below, the applicant's application for review in file no 1610229 is misconceived as the decision to cancel her authorisation and to remove her grandchildren from her care was not a decision that was reviewable by the Tribunal. Hence, we have made an order dismissing that application. However, the cancellation of the applicant's authorisation as a carer and the removal of the children from the applicant's care were a direct result of the decision of the respondent, the Children's Guardian. Hence it is the applicant's application for review of that decision that was the subject of the hearing before us, on 12 August 2016. At the conclusion of that hearing we reserved our decision.
Given the sensitive nature of proceedings under the WWC Act, when the applicant's application for review of the Children's Guardian 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and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.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 CNA is used. In this decision we refer to CNA as the applicant.
In this decision, a reference to the "respondent" is a reference to the Children's Guardian.
For the reasons that follow, on the basis of the material before us and the applicable law, we have decided the decision of the respondent (the Children's Guardian) is not the correct and preferable decision: see Administrative Decisions Review Act 1997 (NSW), s 63(3). That is, we do not find that the applicant poses a real and appreciable risk to children today. Accordingly, we have made an order setting aside the decision of the respondent and in substitution thereof we have made a decision the applicant be granted a working with children check clearance.
[2]
Background
The applicant is 49 years of age and the authorised carer of three of her grandchildren, who are the children of her eldest daughter. The grandchildren are aged 11, 10 and 3 years. The eldest grandchild was placed with the applicant in early 2005, and the other children were placed with the applicant in the latter part of 2005 and 2013. They were all very young when they were placed with the applicant and have been in the applicant's care for ten and three years.
The grandchildren have two siblings/half siblings who are aged seven and 8 and are in foster care with another authorised carer.
The Minister has parental responsibility for all five children.
On 22 October 2013, after the commencement of the WWC Act, the applicant applied to the respondent for a clearance, as she was required to do: WWC Act, s 6(3)(c).
Having received the applicant's application and being notified of a trigger event (i.e. 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 trigger event that caused the risk assessment was the applicant's conviction, in 2002, of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900 (NSW). The assault occurred in early December 2001 and the victim of the assault was the applicant's eldest daughter, the mother of the grandchildren who are now in the applicant's care. The applicant's daughter was 14 years of age at the time of the offending conduct. The Police Fact Sheet states that on the day in question, the applicant's eldest daughter returned home in the early afternoon after having stayed at a friend's house for two nights. When she arrived home an argument ensued between the applicant and her daughter. Shortly thereafter, the applicant took her daughter and her other children to the local police station. The applicant asked the policeman to speak to her daughter because she was unable to control her. After the policeman spoke to her daughter, the applicant and her family returned home.
On returning home, another argument ensued between the applicant and her daughter. It was during this argument that the assault occurred. The applicant's daughter then left and returned to her friend's home. The parents of the friend contacted police about the assault. The applicant had also contacted police and made admissions about what had occurred.
The applicant's daughter told police that her mother pulled her jumper while she was sitting on her bed, which caused her to fall onto the floor. She said her mother told her to stay in her room and she shut the door. The applicant's daughter said that when she came out of her room to get a drink, her mother told her to get back into the room. She said her mother then grabbed her by the hair and pulled her onto the floor. She said that when she was on the floor her mother kicked her in the stomach. She also said her mother picked up a cigarette lighter that had fallen out of her pocket (i.e. the daughter's pocket) and swung it at her causing a minor laceration to her right eye.
The applicant was subsequently arrested and charged with the assault occasioning grievous bodily harm. The Fact Sheet noted that when the applicant was contacted by police on the day in question she said words to the effect "yeah I hit her but I regret it now."
The applicant pleaded guilty to the offence and was fined $300.
On 5 April 2016, the respondent determined to refuse the applicant's application for a clearance, as she was satisfied on the material before her, that the applicant poses a risk to the safety of children. The material before the respondent included the 2001 assault and further reports about the applicant using unacceptable discipline towards her own children and the grandchildren in her care by yelling at them and hitting them.
As a consequence of the decision of the respondent, the applicant's authorisation as a carer under the Care Act was automatically cancelled: see Children and Young Person (Care and Protection) Regulation 2012, cl 42B.
On 8 April 2016, the applicant made this application for administrative review of the respondent's decision, under subsection 27(1) of the WWC Act. On the same day the applicant made an application for a stay of the decision of the respondent.
In addition to making an application for review of the decision of the respondent to refuse her application for a clearance, on 8 April 2016, the applicant made an application seeking a review of the decision of the Department of Family and Community Services (FaCS) to cancel her authorisation as a carer and to remove the children from her care (Tribunal file no 1610229). An application for a stay of that decision was also made.
The applicant's applications for a stay were heard on 14 April 2016. The Tribunal granted a stay of the respondent's decision to refuse the applicant's application for a clearance. While the Tribunal had no jurisdiction to hear and determine the applicant's application for a stay in regard to the cancellation of her authorisation as a carer and the removal of the children from her care by FaCS (see Care Act, s 245(1)(a1)), the Tribunal noted that the Department returned the children to the applicant's care pending the determination of this application. The children were returned as the position of FaCS was that, but for the decision of the respondent, it would not have removed the children.
The children have remained in the applicant's care.
[3]
Relevant WWC legislative scheme
The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows:
"3 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."
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 s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
Section 8(1) of the Act prohibits a person from engaging in "child-related work", unless:
1. the person holds the relevant working with children check clearance, or
2. 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.
Section 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.
Sections 6 and 7 define what is meant by "child-related work." It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. 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 13 provides that applications for a clearance are to be made to the respondent.
Section 18 prescribes how the respondent is to determine an application for a clearance. Section 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." However, because she was charged with an offence falling within cl 1 of Sch. 2 of the WWC Act, she was subject to an "assessment requirement": see WWC Act, s 14 and cl 1(1)(b) of Sch. 1. Section 15(1) of the WWC Act requires the respondent to conduct that assessment and s 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", s 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 s 18(2), has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Section 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 subs 15(4).
Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
Evidence before the Tribunal
In support of her application the applicant filed and served:
1. an affidavit sworn by the applicant on 27 May 2016. Attached to the applicant's affidavit was a Placement Assessment Update -prepared by Ms B Murray-Roach, psychologist and dated 27 May 2016; and
2. an affidavit sworn by Mr A, Manager Casework of FaCS, sworn on 13 April 2016. Attached to Mr A's affidavit was a Placement Review - prepared by Ms A Vidovic, psychologist and dated 24 November 2015.
The respondent relied on five bundles of documents, which included responses it obtained from the applicant in the course of her risk assessment, documents it had obtained pursuant to a request under s 31 of the WWC Act during the course of her risk assessment and during the course of these proceedings, and documents produced pursuant to a summons issued by the Tribunal at the request of the respondent during the course of these proceedings. A large proportion of the documentation is documentation provided or produced by the Department of Family and Community Services (FaCS).
The applicant, Mr A and Ms B (FaCS caseworker) each gave oral evidence at the hearing and were cross-examined by counsel for the respondent.
Both parties provided written submissions.
[4]
Issues for determination
The primary issue for us to determine in these proceedings is whether, having regard to the material before us and the applicable law, whether we can be satisfied the applicant poses a real and appreciable risk to children if she were to be granted a working with children check clearance today.
The applicant concedes a history of inadequate parenting. However, she is continuing to address this and has made significant changes with the ongoing support from FaCS and her family. The applicant also submits that to remove the children from her care would cause them significant harm.
The respondent, on the other hand, contends that the applicant has a long history of abuse, which she has failed to address and has in effect only done so since her application for a clearance was refused. With such a history the respondent contends that we could not be satisfied that this abuse would not be ongoing.
[5]
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].
[6]
(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance
The applicant's 2002 conviction of assault with grievous bodily harm, in our opinion, is serious. However, it is at the lower end of the scale of seriousness for such offending.
The applicant does not dispute this to be the case. At the time of the offending the applicant had already acknowledged this and regretted what she had done. In her evidence in these proceedings, the applicant explained she was going through a marriage break-up at that time. She had five children and her daughter was extremely rebellious. She said her daughter had gone missing for two days and nights without contacting her. She said that when she came home she was very angry with her.
The other matter which caused the refusal of the applicant's application for a clearance were the persistent reports, over 20 years, of the applicant hitting and yelling at her children and grandchildren.
The first report of a possible risk of harm was received in early 1993 by the then Department of Community Services (DoCS)(now known as FaCS). The report was made in regard to the applicant's children who were aged 6, 4 and 2 years of age at that time. The reported allegations were of severe verbal abuse and hitting of the children by the applicant and her then husband. It was alleged that both the father and the mother used loud voices when speaking to the children, who were noted as being demanding. It was noted the father was not often present. He was a shift worker and slept most of the day. The applicant was informed that it was inappropriate to scream at the children or hit them and she was referred to family support services. It was also noted that the applicant had taken some positive steps to work on the identified problems.
A further report was made by a doctor, to DoCS, later the same year. The doctor reported that he had concerns for the children of the applicant's family. He said the applicant presented at the surgery with a black eye and bruising on the side of her face due to physical violence in the home. He said that while she was in the surgery she exhibited abusive behaviour towards the children in that she lashed out and hit them in his presence. The doctor requested that the family receive support in order to help them cope.
In early 1998, DoCS received another report concerning the applicant's family. It was reported that the applicant was hitting the children with a wooden spoon and both parents screamed at them constantly. DoCS conducted an assessment of the reported allegations and the immediate risk factors were found to be very low. In regard to risk factors generally, it was noted that these were also relatively low in seriousness. It was noted that all the children reported a positive attachment to the applicant and her husband. At the time there were five children aged 11, 9, 7, 4 and 3 years. The eldest boy (aged 7 years) said he had been hit with a wooden spoon, which caused a small bruise on his thigh. However, this allegation was found not sustained because it was not supported by what his older sisters had said. The relationship between the applicant and her husband were noted as "quite okay" and that they did not have a problem with the three younger children. The assessment report recommended a referral of the family to the family support services for an increase of their involvement to reduce the levels of stress within the family and increase their level of coping.
The next event occurred in 2007. In mid-2007, the Department received two notices of allegations of reportable conduct. The allegations again concerned the applicant smacking and yelling at her grandchildren. At the time, two of her grandchildren were in her care. She also had her eldest daughter and her youngest two children (a son and a daughter) living with her. The children and grandchildren were interviewed in the course of the investigation. During these interviews disclosures were made of the applicant hitting and swearing at the younger children and the grandchildren. The applicant was also interviewed. She acknowledged she smacked her children and the grandchildren on the hand when they had been bad. She also acknowledged that she had slapped her son on the face. She said she did this because he had hurt her youngest daughter's arm. The allegations were found sustained and an independent placement assessment was recommended in regard to the placement of the grandchildren in the applicant's care. It was also recommended that a monitoring mechanism be put into place and that appropriate support be provided to the applicant and the children in her care. In this regard, it was further recommended a comprehensive Safety Plan for the children be implemented and the applicant be referred to the Positive Parenting Program and family therapy to address her anger management and parenting issues, particularly in relation to her discipline strategies.
In 2009, a further report of alleged inappropriate physical discipline of the children being used by the applicant. These allegations were found not to be reportable conduct.
In the latter half of 2012, the children's caseworker, Ms B, interviewed the older grandchildren in the applicant's care. In these interviews each child disclosed the applicant had smacked them with a wooden spoon. Shortly after their disclosures, Mrs B interviewed the applicant. In her interview the applicant acknowledged she "smacked" the children on the bottom. She said, the children "won't listen, sick of harassment by you [Community Services]." The applicant also told Ms B that that she had done a parenting course some 8 years ago and when the children misbehaved she sent them to their bedroom for time out and that the longer they argued the longer the time out.
In 2014, Mrs B made a record of her interview with the applicant during a home visit. During the interview they discussed smacking. Mrs B noted that she told the applicant even a "tap" was against the Code of Conduct and the policies of FaCS.
At no time has the applicant disputed she smacked/hit and yelled at the children as alleged. She acknowledged this was done when she was not coping with the children's behaviour and she became angry and stressed. In her evidence before us the applicant explained it took her some time to realise that she needed help and that the caseworkers were not criticising her, but were seeking to assist her. She said that with their assistance she has now learnt strategies in order to avoid and deal with such issues. The evidence of Mr A and Mrs B support what the applicant said. We have discussed this evidence in more detail below.
We agree the ongoing reports of the applicant smacking/hitting and yelling at her own children and her grandchildren are of concern, especially when she has been informed that disciplinary measures such as these are inappropriate and unacceptable. The most serious of these, was the report that was made in 2007. Yet they were not of sufficient seriousness to make a finding that the applicant in her role as an authorised carer posed a real and appreciable risk to the safety of her grandchildren. Instead measures were taken to address the concerns that were raised.
Nevertheless, in our opinion, the fact of ongoing reports of this kind, up to 2102, is of concern. However, on the basis of the information provided we do not find that the level of seriousness is as significant as suggested by the respondent. The earlier reports we note were made primarily to obtain support to the applicant and her family as they were not coping. The most significant of the reports is that made in 2007. The applicant has explained the circumstances surrounding that report and there have not been any further reports of such significance since then. The 2012 report was made as part of the Department's ongoing monitoring of the placement of the children in the applicant's care.
[7]
(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred
The applicant's trigger offence occurred 15 years ago. She has not committed an offence of a similar kind since that time or prior thereto.
Of concern to the respondent are the ongoing reports of smacking and yelling at the children and the applicant's apparent refusal to engage in any meaningful way with the services provided by the respondent. In this regard the respondent relied on the assessment reports of Ms Murray-Roach in May 2016 and the earlier placement review of Ms Vidovic dated 24 November 2015.
We have dealt with these reports in more detail below.
[8]
(c) The age of the person at the time of the offences or matters that occurred
The applicant was 26 years of age at the time of the trigger offending conduct in 2001. As we have noted the applicant was the mother of five children, of which three were living with her at the time of the offending conduct.
In regard to her day-to-day care of her grandchildren the applicant has had them in her care since she was 30 years of age.
[9]
(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
The applicant's eldest daughter was 14 years of age at the time of the 2001 trigger offending conduct.
The applicant's grandchildren have been in her care since they were very small. They are now aged 11, 10 and 3.
The applicant accepts that her daughter and her grandchildren were vulnerable in that she was their primary care giver. She accepts they trusted her and she abused that trust.
[10]
(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The difference in age between the applicant and her daughter at the time of the 2001 trigger offending conduct was 12 years. The applicant is also the grandmother of her children and their difference in age is between 28 and 46 years.
[11]
(f) Whether the person knew or could reasonably have known that the victim was a child
There is no dispute that the applicant knew that her daughter the subject of the 2001 trigger offence was a child or that her grandchildren have at all times been children.
[12]
(g) The person's present age
The applicant is current 49 years of age.
[13]
(h) The seriousness of the person's total criminal record and conduct of the person since the offence occurred
The only criminal record of the applicant is the 2001 assault occasioning actual bodily harm of her eldest daughter.
Of concern to the respondent is what counsel has described as a serious "23-year history of verbal, physical and psychological abuse" by the applicant of her children and grandchildren. It is the respondent's contention that over the 23-year history the applicant has engaged with interventions of the Department only in a minimal way and that it has only been recently that the applicant engaged in any intensive way with counsellors. The respondent submits this engagement has been motivated purely because of these proceedings and a fear she might lose the children.
In our view, this is an overstatement of the evidence and not entirely consistent with the evidence given by the applicant, Mr A or Ms B at the hearing.
First, in our view the reports that were made in 1993 and 1998 are some years apart and the applicant's circumstances differed considerably to those that have existed in recent years. In 1993 the applicant was very young with three children and the reports as we have noted were made for the purpose of seeking support for the applicant and her family.
At the hearing, it was the applicant's evidence that she had not hit the children since 2012. She acknowledged she smacked and yelled at her grandchildren in 2007, 2009 and again in 2012. She explained that prior to 2012 she constantly felt intimidated and put down by the questions that were asked of her by the Department caseworkers. She explained she felt overwhelmed by unannounced visits by caseworkers and being told what she could and could not do. She said she did not feel supported, but things have changed in recent years. She now feels she is being supported by the caseworkers and the manager casework in her capacity as a parent and a grandparent. She said she now sees that she has more options available to her.
The applicant also explained that she now recognises that prior to 2012, she was not coping with the everyday stresses. She explained that her eldest grandchild has an attention deficit hyperactivity disorder (ADHD) and has difficulty in going to sleep. She said she has now has developed new strategies, through the assistance of counselling, in coping with the every day pressures. She said she continues to attend counselling once every week and she will continue to do so. She also explained that Ms B, her caseworker for the last 4 years has been very supportive and she has a very good relationship with her. She explained she understands the respondent's concerns and it was for this reason she chose sometime ago to engage with the supports provided by the Department. She said she will welcome any future support that may be offered and she also recognised that she will need ongoing support in order to guide her grandchildren in the right way through their high school years.
She said in developing new strategies to cope with stress she now has more support from her family and friends. She said she was also now thinking of obtaining a job so that she can interact more with other people. She said she was not looking for child related work, but was looking to work in other areas. She said it had been difficult for her to seek work, as her youngest daughter was ill at the time the children came into her care and she and the grandchildren had taken up all her time. She said things have now changed and she has more time.
Overall the applicant said she is now much happier and calmer since obtaining help.
The applicant's evidence was supported by that of her manager casework, Mr A, and her caseworker, Mrs B. In his evidence, Mr A said he had known the applicant for 3½ years. He said while she had been assessed as a moderate risk of harm to children in her care, in his opinion this had now altered to low risk because of the support initiatives the applicant has engaged in. He said, in his opinion, the applicant was now unlikely to use excessive discipline. He said he accepted there have been some "push back" from the applicant in the past, but he said in the last 3½ years it is a much better relationship between the applicant and the officers of the respondent. He said it was now much more collaborative and positive. That is, he said he has seen a real change in the applicant in recent years and he believes it will be ongoing.
In cross-examination, Mr A explained that 2013 was a difficult year for the applicant because of the proceedings before the Children's Court in regard to her youngest grandchild. He said it was difficult because the applicant loves her daughter and also loves her grandchildren. The Children's Court proceedings he explained ended in 2014.
In regard to the April 2015 report of Ms Vidovic, Mr A said he was actively involved in the arrangement of this assessment. He said he had already seen, as at the time of this report, that there was a genuine change of attitude by the applicant in regard to her care for her grandchildren. He explained that up to 2012 there had been very little monitoring of the placement of the children in the applicant's care. However, since 2013 there has been considerably more monitoring, not only of the applicant and her care for her grandchildren, but also of the placement of the other two grandchildren of the applicant's eldest daughter, which was being managed within his responsibility.
In regard to the Murray-Roach report, Mr A explained that, in his opinion, to remove the children from the applicant's care would be very traumatic for them. He said they have a strong attachment to her and the Department will continue to provide support to the children and to the applicant to ensure the children remain safe. He agreed that the physical discipline was a concern because of the applicant's background. However, he reiterated he had seen the applicant's attitude change and that she was now managing her stresses well.
The evidence Mr A gave was that the concerns expressed by Ms Murray-Roach were not warranted.
Mrs B in her evidence agreed that there had been issues about physical discipline by the applicant. However, she also said that there has been change in that the applicant has become calmer and is now very willing to engage with the Department and the assistance that is being provided. She said she believes that previously there had been a lack of trust by the applicant. She said that she has no concerns about the applicant working with children.
In cross-examination Mrs B said the applicant now initiates regular meetings with her caseworker. She said this began in 2014, when she believes a trust was developed in the relationship between the applicant and the Department, in particular when the applicant began to trust her. That trust she said was developed during the long drives they took in taking the grandchildren in the applicant's care to contact visits with their older siblings in a town some 3 hours away.
[14]
(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The respondent is concerned that the applicant has failed to offer any explanation as to why she has taken over 20 years to engage in support services. Again, it is submitted that in such circumstances the applicant's engagement with support services should be construed as responsive only to her application for a clearance and if granted she will go back to her old ways.
The respondent also submits that the report of Murray-Roach does not support the applicant's contention that she has changed and will continue to engage with support services.
In our opinion this is not how the applicant presented at the hearing. While she appeared to be uncomfortable in the environment she was in, she was at all times open and frank. She clearly loves her grandchildren deeply and is understandably concerned about the possibility of them being removed from her care. In some respects, her sense of commitment to her grandchildren has meant that she has ignored her own health needs. It would appear the applicant did not have any natural skills of appropriate parenting and in many respects she now accepts this to be the case. At no time has she blamed others for what has occurred. She has taken responsibility for what she has done and acknowledges that it was wrong. She has also taken steps to develop strategies to deal with her stresses and ensure that she is a caring and supportive foster parent for her grandchildren.
In her report, Ms Vidovic recommended that the applicant continue to be authorised as the long-term carer for her three grandchildren. At the same time she recommended the applicant not be authorised to provide short term or long term care for any other children, including siblings or half siblings of the children in her care. We note that these recommendations were not made on the basis of any concerns that the applicant poses a risk to the safety of the children in her care but on the basis of her capacity to do so. Ms Vidovic noted that the major barrier to the applicant's working in partnership with other services is her hesitance to rely on others for help. It was noted the applicant has always had to fend for herself and is used to getting by without asking for help, which meant that she now finds it difficult to do so. However, it was noted that she had made some significant change in this regard.
In her report made almost six months later, Ms Murray-Roach recommended that an alternative long-term placement be considered for the applicant's grandchildren. There were a number of other recommendations made in regard to placement transition, respite contact plans and other issues concerning where the children are placed in out of home care. We note that Ms Murray-Roach was specifically requested to consider risks that the applicant may pose to children in general, taking into consideration the criteria specified in the WCC Act. Whilst Ms Murray-Roach addressed the issue of ensuring the safety of the children, she did address this in the context of the applicant's 2001 offending and the reports of smacking and yelling.
In his evidence, Mr A, said that his experience in working with the applicant was considerably different to that expressed by Ms Murray-Roach. As we have noted, his evidence was that he had seen the applicant undergo considerable change in the last 3½ years and it was his view that she would continue to do so. He also noted that at the time she was being assessed by Ms Murray-Roach, the applicant was in considerable stress especially in regard to these proceedings.
[15]
(j) Any information given by the applicant in, or in relation to, the application
The respondent points to the applicant having failed to provide a psychological risk assessment report in support of her application. Instead she relies on the reference from Ms Larissa Dan of the Parent Effectiveness Training Course and the report of Ms Murray-Roach.
The report of Ms Murray-Roach, the respondent submitted was not supportive of the applicant. While we agree Ms Murray-Roach did not support the applicant having long term care of her grandchildren, she did so primarily for reasons relating to the applicant's parenting capacity as the children become older and not whether she poses a risk to the safety of children. In our view, the applicant's capacity to parent her grandchildren, as they get older, is not for us (or the respondent) to determine. That is for the Department to determine and in this regard we have noted Mr A's views in regard to the recommendations of Ms Murray-Roach.
We have already noted the applicant gave forthright and truthful evidence and her evidence is supported by Mr A, Mrs B and Ms Dan. The applicant has also submitted a number of references, each of whom support her as the foster carer of her grandchildren. Again while this is not relevant to this application, we note there is no reference to these persons having seen the applicant smack/hit or yell at the children.
Finally, there is no statutory requirement that an applicant for review obtain a psychological risk assessment report in support of his/her review application.
[16]
(k) Any other matters the Children's Guardian considers necessary
In her submissions, counsel for the respondent acknowledged the Department had undertaken extensive intervention and intensive assessment and support for the applicant in her role as an authorised carer for the grandchildren in her care. It is also acknowledged that there is evidence from caseworkers and assessors alike that children have formed strong attachments to the applicant and have been placed with the applicant for the majority of their lives. However, the respondent submits that it is apparent that the applicant has not yet gained the parenting skills, self-control, or appropriate insights into her parenting behaviour concerning physical discipline and verbal and physical abuse. These, the respondent submits are necessary to ensure the applicant is not a real and appreciable risk to children.
The respondent contends that while the applicant might now be gaining the required skills and insights, her long history of violent, physical and verbal abuse of the children in her care is such that we could not be satisfied that she would not revert to her well-established pattern of violent, physical and verbal abuse of the children in the future. It is submitted that in these circumstances we cannot be satisfied that she does not pose a real and appreciable risk to the safety and wellbeing of children, most particularly, the three grandchildren for whom she is their authorised carer.
[17]
Conclusions and orders
We reiterate, the principal issue for us to determine in this application is whether the applicant poses a real and appreciable risk to the safety of the children, taking into account the matters enumerated in section 30 of the WWC Act and having regard to the paramount consideration in the operation of this Act, that of the safety, welfare and wellbeing of children in protecting them from child abuse. That is, what we are assessing is whether we can be satisfied the applicant poses a real and appreciable risk to the safety of children today. And in this regard, there is no presumption that she does pose a real and appreciable risk to children.
At the same time, our role is not to determine whether the applicant is a suitable person to be authorised as a carer let alone whether she is the most appropriate person to be given the day-to-day care of her grandchildren. This is the role of the Department.
The matters of concern in regard to risk in this application are the applicant's 2001 trigger offence of assault causing grievous bodily harm and the excessive disciplinary measures taken by the applicant over a number of years. The applicant's conduct in this regard has always involved children in her care, namely her daughter and her grandchildren. It is accepted that conduct of this nature can cause not only physical harm but also psychological and emotional harm. While the applicant's conduct is serious we have found that it is at the lower end of seriousness. Nevertheless, what is of concern is the applicant's failure to engage in the support services provided by the respondent and the fact that the excessive disciplinary measures were not isolated.
The question in this application is whether, today the applicant has the necessary insight to her conduct and has taken steps to ensure she does not engage in conduct of this nature in the future.
In our view, on the evidence before us, we are satisfied the applicant has the necessary insight into her past behaviour. She acknowledges it was wrong and she has also acknowledged that she needs help, and ongoing help, in order to cope in situations she finds stressful. She has taken steps to engage with such help and has made a commitment to continue to do so. She has also re-engaged with the Department in a positive way and has welcomed the support they have given her.
On the evidence before us, the applicant also has the support of the Department, her family and friends.
These are all factors, which in our view are supportive of the applicant not behaving as she has in the past. We are also satisfied the applicant is fully aware of the consequences in the event she returns to behaving as she has in the past.
Hence, on the evidence before us and having regard to the paramount consideration in s 4 of the WWC Act, we are not able to make a finding that the applicant poses a real and appreciable risk to the safety of children today if she were to be provided with a working with children check clearance.
Accordingly, we find the decision of the respondent (the Children's Guardian) is not the correct and preferable decision and should be set aside and in substitution thereof a decision that the applicant be granted a clearance.
For completeness we also need to make orders in regard to the applicant's application seeking review of the decision of the Department to remove the children from her care. As we have noted in paragraph [18] - [20] above, the Tribunal had no jurisdiction to hear and determine that application. Hence that application (file no 1610229) should be dismissed. However, in light of our decision to set aside the decision of the Children's Guardian and to grant the applicant a clearance under the WWC Act will have the effect of restoring her authorisation (see Children and Young Person (Care and Protection) Regulation, cl 42B (4)).
ORDERS:
Application file no 1610228
1. The decision of the Children's Guardian, made on 5 April 2016, to refuse the applicant's application for a working with children check clearance is set aside.
2. In substitution for that decision the following decision is made:
3. The applicant is granted a working with children check clearance.
Application file no 1610229
1. The applicant's application for review of the decision of the Department of Family and Community Services is dismissed.
[18]
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
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Decision last updated: 15 December 2016