CPH v Children's Guardian

Background

1. The applicant was issued with a working with children check clearance in July 2013. That clearance was valid for five years, unless cancelled or surrendered sooner (WWC Act, s 22). The applicant was a bus driver and a taxi driver and required a clearance in order to undertake that work.
2. In March 2014, the respondent was informed the applicant had been charged with having assaulted his wife (charge of common assault). The applicant subsequently pleaded guilty to the offending conduct. The Court did not enter a conviction on the condition the applicant entered into a 12-month good behaviour bond. A provisional Apprehended Violence Order (AVO) was also issued against the applicant.
3. In September 2014, the applicant was again charged with an offence of having assaulted his wife. He was also charged with having breached the AVO.
4. In November 2014, the respondent was informed that the March 2014 offence had been finalised and the applicant was due to be sentenced in regard to the September offences during the following month. The respondent noted in its records that the charges were "non-trigger because the victim's were not a child".
5. In December 2014, the applicant pleaded guilty to both charges. The Court convicted the applicant and deferred sentencing him on the condition he entered concurrent good behaviour bonds for each offence for 18 months.
6. The following year, in October 2015, the respondent was informed that there had been further offending by the applicant in that he was again charged with having assaulted his wife. This offending and the previous offending the respondent noted to have occurred in the presence of the applicant's children. Having obtained details of the further alleged offending conduct, in November 2015, the respondent determined to undertake a risk assessment of the applicant on the grounds of there being a "pattern of triggers" as per cl 1(1)(6) of Sch 1 of the WWC Act.
7. On 8 December 2015, the respondent wrote to the applicant informing him that in light of his criminal offending it had been determined to impose an interim bar (WWC Act, s17) on him and that a cancellation (WWC Act, s 23) of his clearance was being proposed. The applicant was informed that the interim bar was a "temporary protective measure to prevent a person from engaging in a child-related role while conducting further enquiries." As a result of the interim bar having been imposed, the applicant ceased work as a bus driver.
8. On 8 January 2016, the respondent determined to cancel the applicant's clearance as she was satisfied he posed a risk to the safety of children. On the same day, the respondent notified the applicant of her decision in accordance with s 23(2) of the WWC Act.
9. Five days later, the applicant pleaded guilty to the October 2015 charge. The Court convicted him and sentenced him to 9 months imprisonment which was suspended immediately upon the condition he entered a good behaviour bond for 9 months.
10. Being dissatisfied with the decision of the respondent to cancel his clearance, on 24 May 2016, the applicant lodged this application for review pursuant to s 27 of the WWC Act. That application was lodged outside the time prescribed in s 27(1) of the WWC Act (i.e. within 28 days of being notified of the decision).
11. When the matter first came before the Tribunal on 23 June 2016, by consent, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013, the Tribunal made an order extending time within which the applicant is to lodge his application to 24 May 2016.

The WWC legislative scheme

1. 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."
2. 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.
3. 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.
4. Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless: (a) the person holds the relevant working with children check clearance, or (b) 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.
5. 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.
6. 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].
7. 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),"
8. Section 18 prescribes how the respondent is to determine an application for a clearance.
9. Where a clearance has been granted, that clearance ceases to have effect 5 years after it was granted, unless it is sooner cancelled or suspended: WWC Act, s 22(1).
10. Where a clearance has been refused, or cancelled, s 13 A of the WWC Act creates an embargo on making a further application for a clearance for 5 years, unless the matters in s 13(2) arise. That section provides as follows: 13A Embargo after refusal of application or cancellation of clearance (1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance: (a) until 5 years after the date notice of the refusal or cancellation was given to the person, or (b) unless there has been a change of circumstances under which a further early application is permitted under this section. (2) A further early application is permitted if any of the following occurs after the date of the refusal or cancellation: (a) proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence, (b) a finding of guilt is quashed or set aside, (c) a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect, (d) the Children's Guardian permits a person to make such an application."
11. Section 23 of the WWC Act sets out the respondent's power to cancel a person's clearance. That section relevantly provides as follows: "23 Cancellation of clearances (1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children."
12. Subsection 18(1) of the WWC Act defines a "disqualified persons" 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. The applicant is not a disqualified person, as the offences he was convicted of are not listed in Sch. 2.
13. However, because of his 2013 and 2015 offending the applicant was subject to an "assessment requirement". Section 14 of the WWC Act provides that a person is subject to such an assessment "if any of the matters specified in Schedule 1 apply to the person". These matters are referred to as "assessment requirement triggers". The matter/trigger relevant to this application is cl 1(6), which is in the following terms: "(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children."
14. Section 15(1) of the WWC Act provides that the respondent is to conduct a "risk" assessment where an applicant for a clearance, or the holder of a clearance is or becomes subject to a s 14 assessment requirement.
15. 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."
16. Section 15(4) sets out the matters the respondent may consider when undertaking a risk assessment in order to determine whether the person poses a risk to the safety of children. That section provides as follows: "15 (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (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 offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.
17. In 2015, an addition requirement, s 15(4A) was inserted (see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 16). That requirement is in the following terms: "15 (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination." (bold added)
18. As the respondent's decision to cancel the applicant's clearance was made after the coming into force of this subsection, it applied: see CHB v Children's Guardian [2016] NSWCADTAD 214, at [124]. However, it would appear it did not apply to the applicant as he was not an applicant for a clearance - he was the holder of a clearance. In any event, this is not a matter relevant to our determination of the applicant's review application.
19. A person who has his/her clearance cancelled under s 23 of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(2) 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.
20. 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 also amended, in November 2015, by the insertion of an additional cl 30(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. Again, the amendment applies to this application: see
21. Section 30(1) and (1A) provide 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 … 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. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order."
22. While s 30(1)(a) only makes reference to "matters" that caused a "refusal" of a clearance and does not include a reference to the "cancellation" of a clearance, in our opinion, it should be construed to include such a reference. That is, having regard to the purpose of the section, the other provisions in Part 4, the terms of s 15(1) and the entirety of the legislative scheme, Parliament intended the matters specified in s 30 was to equally apply in circumstances where a clearance had been cancelled.
23. In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.
24. Finally, the Tribunal, nor the respondent, has the power to grant or make an order to grant 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

1. In support of his application the applicant relied on two short statements he made and filed on 30 June and 24 August 2016. He also gave oral evidence at the hearing and he was cross-examined by counsel for the respondent.
2. The applicant has at all times been unrepresented.
3. The respondent relied on two bundles of documents that contained copies of its internal file notes; correspondence the respondent sent to the applicant; a copy of the applicant's criminal and AVO history; responses received from NSW Police, Family and Community Services and the Local Court pursuant to a s 31 request; and documents produced pursuant to summonses issued by the Tribunal at the request of the respondent.
4. The respondent also filed and served written submissions.

Issues for determination

1. The primary issue for us to determine in these proceedings is whether, on the material before us, we can be satisfied the applicant poses a real and appreciable risk to the safety of children. If we are so satisfied, we must find that the decision of the respondent is the correct and preferable decision. And if we are not so satisfied, we must consider the matters set out in s 30(1A) of the WWC Act.

Consideration

1. 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.
2. 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 the cancellation of the applicant's application for a clearance

1. As we have noted, the matters which caused the cancellation of the applicant's clearance were the three charges of which the applicant was convicted in 2014 and 2015. They were charges of common assault against the applicant's wife. The offences occurred at the applicant's home. In his oral evidence the applicant explained that he and his wife were married in 2004. They came to Australia in 2008. His daughter was born overseas and his son was born in Australia.
2. In regard to the first offence, the Police Facts Sheet states that the applicant became verbally abusive to his wife during discussions about family finances. It was alleged that the applicant forced his wife's hands across her chest, with each hand to her opposite shoulder. He then grabbed her by the throat causing her to feel that she could not breathe. The applicant's wife managed to scream for help and her mother, who was visiting at the time, attempted to free her by pulling the applicant's hand whilst also shouting at him. The applicant's wife also allegedly attempted to free herself by biting the applicant who eventually released his grip on her.
3. In regard to the second offence, the Police Facts Sheet states that when the applicant's wife returned home from grocery shopping with the children, the applicant allegedly stared at her while she walked through the front door. When the applicant's wife asked the applicant "Why are you staring at me?", his wife alleged he grabbed her hair and pulled it. It was alleged the applicant's daughter, who would have been approximately 9 years of age at that time, pushed the applicant away from her mother and grabbed the applicant's hand and led him away to his bedroom. The applicant's wife then called the police and the applicant was charged.
4. In regard to the third offence, the Police Facts Sheet states that the applicant allegedly became angry with his wife on the day in question and verbally abused her calling her and her mother and sisters "bitches" and threatened to kill his wife's brother-in-law. It was alleged the applicant slapped his wife twice on the left side of her face, dragged her by her feet from where she was sitting on the sofa and proceeded to drag her about three metres along the floor. It was alleged the applicant's wife attempted to break free, screaming that she had told the applicant never to hit her again. It was alleged the applicant's daughter again physically intervened by pushing the applicant away and yelling "Dad, leave mummy". It was noted both children had witnessed the attack and were described as having cried hysterically. Four days after the alleged offending, the applicant's wife attended the local police station. Her injuries were noted and included a bruise to the jaw and a graze to her elbow. These were photographed.
5. In his oral evidence in these proceedings, the applicant acknowledged that he had pleaded guilty to each of the charges. However, he did not accept everything that was contained in the Police Facts Sheet. He said many of the things stated therein were not true and his children knew what the truth was. He said he had a good relationship with his children and did not yell at them.
6. In his oral evidence, the applicant said the first offence occurred on a day he had just finished his morning shift work. He said when he arrived home his wife was talking to her mother, who was with them at that time. He said he heard them say "Let's go shopping". He said he asked his wife not to go and this is when an argument arose. The applicant's evidence was that his mother-in-law has always interfered in his relationship with his wife as does his wife's sister and her husband. He explained that while they do not live in Australia they continue to meddle in their lives.
7. In regard to the second offence, the applicant said he did not stare at his wife.
8. In regard to the third offence, the applicant explained that he was at home on the day in question as he had a day off. He said he was on his Facebook when his wife came in. He said his wife did not like him speaking to his family on Facebook and this was when an argument ensued. He said his wife got very angry and that she fought with him and that he fought with her. He said it was not until three days later that his wife called police after she had spoken to her mother over the phone.
9. In his oral evidence the applicant explained that he pleaded guilty to the offending as his lawyer had explained to him that if he pleaded not guilty his wife would give a statement and would have a lawyer to represent her. He said he decided that if he pled guilty that this would be the end of the situation.
10. We agree the offences of which the applicant was convicted were serious. If considered in isolation they are at the very lower end of such offending. However, given they were committed over an 18-month period they are moderately more serious.

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

1. The first trigger offence occurred 2½ years ago but the most recent offence occurred one year ago.

(c) the age of the person at the time the matters occurred,

1. At the time of the first trigger event, the applicant was 33 years of age and about 35 years of age when the third trigger event 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

1. The victim of each trigger offence was the applicant's wife - she was not a child. She was approximately the same age as the applicant. However, the second and third trigger event occurred in the presence of the applicant's two young children, where the applicant's daughter physically intervened in an effort to protect her mother. It is also evident on the Police Facts Sheet that the children were affected and upset by what had occurred.

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

1. As we have already noted the applicant's wife was approximately the same age as him. However his children who witnessed the second and third trigger offence were between 24 and 28 years younger than the applicant at the time.

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

1. Whilst the victim of the trigger offences was not a child, the applicant was aware that his children, who had witnessed his offending conduct, were very young.

(g) the person's present age

1. The applicant is currently 36 years of age.

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

1. The respondent contends the applicant has a repetitive history of violent offences committed against his wife in the presence of their young children. In this regard the respondent also points to the allegations made by the applicant's wife that the offending of which the applicant was charged and convicted is part of a larger pattern of similar offences committed throughout their marriage.
2. In his oral evidence the applicant acknowledged that he and his wife have argued about financial issues and also about family issues. However, he made no admissions of having previously assaulted his wife and we make no finding that he did so.

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

1. In his oral evidence the applicant said he was very ashamed of what had occurred. He said he and his wife had learnt from what had occurred and that they have undergone counselling. He said he and his wife now communicate well and support each other. He explained he was about to commence taking medication to quieten him down. He also said his psychologist believed he can now control those situations where he gets angry.
2. The applicant also explained that since his most recent offending he had not been living at home with his family. He had been living with a cousin.
3. The respondent noted that the applicant had not provided a psychological risk assessment in regard to his offending conduct. The applicant explained he had not obtained a risk assessment, as he could not afford to engage a psychologist to provide a report.
4. In his oral evidence the applicant also explained that his wife works and earns an income. He went on to say that many of the arguments he has with his wife arose after his wife opened her own bank account on the advice of her mother.

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

1. In his statements made for the purpose of these proceedings, the applicant acknowledged he had assaulted his wife and that he is very regretful. He said that he had arguments with his wife's family who provided no support for him and his relationship with his wife. He also said that he and his wife have had past financial issues that caused serious verbal arguments, but they were mostly resolved. He said he understood it was inappropriate to argue with his wife in front of the children and he wanted to do the best he could for them as a father. This included providing them with financial support. In his statement of 30 June 2016 the applicant said he and his wife were obtaining counselling and he concluded his statement by saying: "Rest assured that nothing will happen again."
2. In his second statement the applicant repeated much of what was said in his first statement. However, he also said his wife supported his application.
3. In his oral evidence the applicant said he was very ashamed of what had occurred.

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

1. The respondent contended that the applicant's application was premature in that he had not as yet served the term of his good behaviour bond.

Conclusions

1. We reiterate our role is to determine the correct and preferable decision having regard to the material before us, and the applicable law. In this regard, 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.
2. We have found the applicant's offending conduct to be serious. The victim of the offending conduct was not a child. However, two of the offences occurred in the presence of his children, who were distressed by what they saw. His daughter was even motivated to intervene.
3. Although the applicant's offending conduct is at the lower to moderate end of seriousness of offences of this kind, it occurred relatively recently. At the time of hearing the applicant was still subject to the bond he had entered.
4. We accept the applicant regrets what occurred. He said he is ashamed of having behaved as he did.
5. However, we are concerned about the applicant's apparent lack of insight into his offending behaviour. He continues to blame others for the situation he found himself in and while he asserts he and his wife are communicating better and that they have been undergoing counselling - he has not put on any evidence in support of his assertion. Nor has the applicant put on any evidence in support of his assertion about the medication he is about to start, or the nature of the treatment he has been undergoing to address his offending conduct. As the applicant's offending occurred so recently, in the absence of such evidence we are not persuaded the applicant has any real insight into his offending behaviour or developed any skills to avoid behaving as he has previously. Nevertheless, we accept he genuinely wants to develop the necessary skills and understanding.
6. However, this is not enough for us to find that the applicant does not pose a risk to the safety of children. On the contrary, we are satisfied, having regard to the s 30(1) factors and the paramount consideration in s 4 of the WWC Act and the material before us, that as at the time of the hearing the applicant poses a real and appreciable risk to the safety of children. We make that finding on the basis of the seriousness of the trigger offences, which were committed relatively recently, and on the basis of the applicant having failed to persuade us that he personally has the necessary skills and understanding to avoid behaving as he had behaved previously.
7. On the basis of the above finding, it is unnecessary for us to consider the matters in s 30(1A) of the WWC Act.
8. Accordingly, on the basis of our finding that the applicant poses a real and appreciable risk to the safety of children, we must find that the correct and preferable decision is to cancel his clearance. Hence, the appropriate order at this time is to affirm the decision of the respondent.
9. We note s 13A(1) of the WWC Act places a five-year embargo on persons whose clearance has been cancelled, unless there has been a change of circumstances under which a further early application is permitted under that section. The changes of circumstances that permit an earlier application are set out in s 13A(2). These include the respondent permitting a person to make an application earlier than the five-year embargo (WWC Act, s 13A(2)(d)). Hence, it is open to the applicant to seek to make an earlier application for a clearance if he is able to establish changed circumstances in that he has evidence to support his assertions of insight and skills to avoid behaving as he has behaved previously he may persuade the respondent she should exercise her discretion and permit an earlier application.
10. In conclusion, on the basis of our findings we order: The decision of the respondent, made on 8 January 2016, to refuse the applicant's application for a working with children check clearance is affirmed. 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: 07 March 2017