CPK v Children's Guardian

63 Determination of administrative review by Tribunal 1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law. 1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. A literal interpretation of "a risk assessment … to determine whether the applicant ….poses a risk to the safety of children", is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
2. In Commission For Children and Young People v V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section at [41] and [42]: "[O]ne must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence "[O]ne does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'.

The Evidence

1. The evidence before the Tribunal comprised the following: 1. The application for review filed 24 May 2016; 2. The report and curriculum vitae of Ms Jessica Pratley, Forensic Psychologist, dated 19 August 2016; 3. Statement of the applicant made 8 September 2016 (incorrectly described as "affidavit"); 4. Section 58 bundle of documents tabulated and indexed filed by the respondent on 20 June 2016 (82 pages); 5. Further bundle of documents filed by the respondent on 28 September 2016 tabulated and indexed (14 pages); 6. Further bundle of documents filed by the respondent on 3 November 2016 tabulated and indexed (15 pages); 7. Further bundle of documents filed by the respondent on 7 December 2016 tabulated and indexed (27 pages); 8. Oral evidence of the applicant given on 12 December 2016; and 9. Oral evidence of Ms Jessica Pratley on 12 December 2016.

The seriousness of the matters that caused the refusal of a clearance NOT IMPLEMENTED: support for w:pict - without v:imagedata You have a dismissed charge of 'Wound with Intent to Murder'. The victim was your then de facto partner and you entered a plea of guilty. Court documents indicate that you and the victim had been - in a domestic relationship since 1997 and had been in a de facto relationship since approximately 1998. The court documents indicate a history of domes tic violence between you and the victim. On 03/03/99 you and the victim were consuming alcohol at home when an argument occurred. You threw a glass beer stubby at the victim, the bottle connected with the victim ' s forehead and he sustained injuries which required three sutures. The victim applied a towel to his forehead in an attempt to stop the bleeding from the injury and he then went to the rear yard of the home. You went into the home and short time later you came out an approached the victim while carrying a knife and stabbed the victim's shoulder. You stated "I am going to fucking kill you before you leave me". As a result the victim sustained a stab wound 4 to 5 cm d eep and approximately 1 to 2 cms in length. In 2011 you were convicted of ( sic) imprisonment for 8 months suspended sentence on Enter Bond s12 for 8 months: court costs $79.00. Addition ally you have a conviction for common assault in 1998. Police record that you threw a large rock at the same victim and punched him back for punching you and throwing rocks at you. It is understood that you had been drinking with the victim prior to the assault .

1. The Children's Guardian in the letter advising CPK of the refusal described the matters as:
2. The prosecution, however, did not proceed with the original charge and she pleaded guilty to a charge of maliciously inflict grievous bodily harm. The legislature obviously regarded the offence as serious, because the maximum penalty was 25 years imprisonment.
3. The penalty imposed by the Court, however indicates that the magistrate considered the particular offence as being at the bottom end of seriousness for that offence. The victim's version of the fight on 30 April 1999 was that they had been out to visit and they and 2 others had drunk 2 cartons of beer before returning home. This preceded the fight they had. He said that they had an argument and she hit him in the head with a stubbie of beer. He said "I then sat down and was listening to music outside in the backyard. [CPK] then approached me carrying a knife in her right hand. She then raised the knife and stabbed me in the left shoulder. She said, 'I'm going to kill you' just before she stabbed me".
4. When the police arrived they recovered a "small kitchen knife".
5. In evidence there is a medical certificate from Dr Nocera. He saw Partner 1 at about 9:00pm on 3 April 1999 at a hospital. He observed a scalp laceration above the hairline approximately above the right eye, and about 4cm long, "with contused irregular margins involving the full thickness of the skin down to but not involving the deep facia over the skull". He also said there was a laceration on the back about 3cm long over the right scapula. He said "it involved the full thickness of the skin down to but apparently not involving the scapula itself".
6. In her affidavit sworn 8 September 2016 in these proceedings, the applicant said that they both were intoxicated and were fighting. She said: "I remember that [Partner 1] started to throw full beer stubbies at me. 1 of them hit me and the others broke on the ground and glass went everywhere. I was very scared of him and felt threatened by him. I thought he was going to harm me. I panicked and stabbed him to protect myself".
7. She did not refer to the allegation that she threw a stubbie of beer at him and injured his head.

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

1. It is 18 years since those matters. The victim of those matters will be referred to in these reasons as "partner 1."
2. In 2000 the applicant was involved with partner 2 and they were living in [Location]. In May 2000 she was convicted of 2 offences which occurred in October 1999. They related to her then partner, "Partner 2".
3. She made a report to the police alleging that Partner 2 had stabbed her several times on the hand and alleging also that he was planning a home invasion to commit with a number of other people.
4. She was prosecuted for hindering the investigation of a serious indictable offence of another, and for making a false report to police resulting in a police investigation.
5. In May 2000 she was convicted of both these offences and in each matter a sentence of 8 months imprisonment was imposed, but was suspended for a period of 3 years upon her entering a good behaviour bond.
6. Apart from those, the applicant has no criminal convictions since the convictions in 1999.
7. The applicant and Partner 1 had been living in a de facto marriage since 1998. It was a violent relationship. They often exchanged verbal abuse, fought and used physical force against each other.
8. They both drank often and drank heavily.
9. Her evidence is that in periods of drunkenness he often hit her forcibly to her head.
10. The incidents described above occurred in March 1999. At that time she was almost 23 years of age, and Partner 1 was 28 years of age. On her plea of guilty in the District Court, the sentence was suspended on the basis that she entered into a bond to be of good behaviour for 3 years.
11. Police records reveal a history of the applicant coming under notice in relation to drunkenness and behavioural problems. Her relevant history is summarised as follows.
12. 1997 - she commenced living in a de facto marriage with partner 1.
13. In 1998 - applicant convicted of common assault and fined $450 plus court costs of $51. The applicant's evidence in her affidavit is that she has no recollection of the circumstances except that the victim was partner 1. She said that the offence occurred in March 1998. Court records show that the offence occurred on 4 March 1998. The police facts, to which the applicant plead guilty, alleged: About 10:30pm on 4/3/98, the defendant, after being involved in an argument with [Partner 1] was assaulted by him. It is alleged that after the assault occurred [Partner 1] was then siting out the front of the house in the gutter when the defendant, without earning, then approached him with a large rock. [Partner 1] was warned by a witness, and on moving was struck to the side of the head with a large rock causing his head to bleed. The defendant, after making a statement of complaint, was then interviewed in relation to the assault on the victim's [Partner 1]. She denied hitting him with the rock. The applicant was fined $450 and ordered to pay court costs of $51".
14. In January 1999 - according to police records, at 7:00pm on this day the applicant was with a male adult and a number of other fruit pickers at Leeton. The police were called. The applicant was having a disagreement with Partner 1. Police described the applicant has "having consumed alcohol to excess" and said she had "begun to harass [Partner 1], who was slightly intoxicated". Police spoke with both parties and arranged for them to stay at separate locations. They also applied for an Apprehended Violence Order restricting the applicant's conduct in order to protect Partner 1.
15. April 1999 - the altercation between the applicant and Partner 1 in April 1999 lead to her conviction in August 2000 by the District Court for maliciously inflict grievous bodily harm. The sentence was deferred upon her entering into a good behaviour bond for a period of 3 years.
16. In his statement given to the police in relation to the incident, Partner 1 said that they had been cohabiting for almost 2 years. He said that since they had been in a relationship they had had "a lot of fights". He said that "there have been times when the police have come because of the fighting and there have been times when there have been apprehended violence orders out for us both. Sometimes when we fought we would hit each other and we would always make up and get back together. One time around December 1998, we had a fight and I broke [CPK's] wrist".
17. He also relayed a fight that they had on another occasion when she was throwing all his belongings out of the caravan they were living in. They had both been drinking. They were pushing and hitting each other and then he saw that she had a knife in her hand. It was a sharp bladed knife and she came at him holding the knife with her right hand and her fist closed around the handle. They were inside the caravan and she held the knife up near her shoulder so the blade was pointing at him. She moved towards him and he tried to get the knife from her. Eventually he grabbed her arm and twisted it until he got the knife from her. He hit her twice then.
18. The applicant's evidence is that the relationship she had with Partner 1 ended shortly after this incident.
19. 1999 - about the time of the assaults of 3 April 1999, the police obtained an apprehended violence order restricting the behaviour of CPK for the purpose of protection of Partner 1.
20. Later in 1999, the applicant formed a relationship with Partner 2. Her evidence is that he was very violent towards her during the relationship. She testified that in about October 1999 (Police records show it was 24 October 1999) she made a report to the police alleging that Partner 2 had stabbed her several times on her hand and also alleging that Partner 2 was planning a home invasion with a number of other people. She said in her affidavit: "I cannot remember the details of what happened at the time, but I was very scared of [Partner 2] and wanted some help to get out of the relationship. I became very scared about [Partner 2] would do to me and I was too afraid to continue with my statement. We were still in a relationship at the time. I was frightened to cooperate with police as I thought he would come after me. This was the pattern of our relationship. I would try to leave and [Partner 2] would threaten to hurt me and I would became (sic) too afraid to leave".
21. The applicant alleged that she moved then to [Location] and used a different name so that Partner 2 could not find her. Later, Partner 2 joined her and they resumed cohabitation in [Location].
22. Meanwhile, police had commenced prosecution proceedings against her for charges of hindering an investigation of a serious indictable offence by another and making a false representation resulting in a police investigation. When the matters were dealt with in the court at [Location], Police officers informed the court they believed that the statements made to the police on 24/10/1999 were true and correct and that the information could only have been provided by a person who had intimate personal knowledge of both the stabbings and the home invasion. They submitted to the court that: "The defendant has only changed her mind in respect of her earlier evidence after she has made up with her de facto, [Partner 2]. They are to this date still together. Her concerns at the time of initiating these complaints to the police was for her welfare, and she pleaded with police at [place] to get her away from there. Subsequently detailed arrangements were prepared because police accepted [CPK's] complaints as genuine. She was then transported at extreme cost to [a] Base Hospital where she later spoke to [local] Detectives, as outlined."
23. 2003/2004 - in her affidavit, the applicant says that in or around 2003 or 2004 with the help of family, friends and community in [Location] she left partner 2. Their relationship had started 4 or 5 years before. Partner 2 had frequently subjected her to violence.
24. In May 2005 - the police were called in relation to a verbal argument between the applicant and an adult male. The applicant answered the front door. The police recorded: "her demeanour was extremely hostile, she was screaming at police, 'the cunt's accusing me of stealin' his money, look the dog is hiding in the kitchen'".
25. The police entered the premises and asked the male person to come outside. As he was doing so with the police, the applicant rushed at him and hit him on the chest. The applicant was taken aside and spoken to by one of the police officers, and another spoke to the male person outside the premises. The male person said he had accused the applicant of stealing his money, and when he kept asking for it "she has attacked me". He said that he had restrained the applicant by holding both her arms until she settled down. He then contacted the police. She gave the police a different version of the incident but declined to make a statement.
26. The applicant had been a guest in the man's house. He had asked her to leave. He said that she had made plans and was going to the housing commission. He wanted her to take her belongings, but she didn't want to, so she threatened him that she would tell the police "what he was hiding". The man changed his mind and decided to let her leave her belongings at the premises.
27. The police were concerned that the applicant was the aggressor of the 2 parties, and they wanted her to take her belongings. She told the police: "Fuck off. Me and him (indicating the male person) have worked it out. Just leave cunts alone. I can take care of myself if that cunt wants trouble, I'll give him trouble". The applicant then went to a neighbour's house and the police noted that the male person was cooperative throughout "and showed no aggression towards [CPK]".
28. In January 2005 - on this occasion police attended an address in NSW upon a report of a male person assaulting a female. The female victim was CPK. When the police arrived she informed them that she and the male suspect were at a house 1 hour before when an argument occurred. CPK said she had hit the man in the face and cut him open. She then left the premises and returned to her home. A while later the male person returned and the argument continued. He then hit CPK with a beer bottle in the head. She had put her hand up to stop the hit and as a result received swelling and bruising to the hand. Police also noticed swelling and bruising to the left side of her face.
29. Police noted that CPK was so intoxicated that arrangements had to be made for an interview at a later date. CPK failed to attend that interview. When police enquired at her address and the owner informed them that she had left town.
30. In June 2005 - about 2:00pm on this day, police attended a home in NSW in response to an incident involving CPK. An accused person had approached CPK and wanted her key card to obtain money from her bank account. She gave the accused her details and he walked to the bank about 12:45pm. About 1 hour later the accused returned to the same address. He walked through the front gate swearing and swinging a golf club. He walked in the front door, kicked the heater over and banged the wall with the golf club. He was yelling at CPK. He was very angry with her and she alleged he was screaming and struck her with a closed fist about 4 times to the left side of her head. He was screaming "where's my money?". When CPK ran into the bathroom the accused followed her. He kicked the bathroom door open while the victim was sitting on the toilet, he raised the golf club above his head and struck her across the face with the golf club. He then left the house.
31. Police observed that CPK had a large swelling to the top of her head about the size of 2 fifty cent pieces. They then requested an ambulance. She was not admitted to hospital. Police then arranged for CPK to leave the premises and move to other premises. Police then arranged to arrest the accused. He was arrested on 10 June.
32. In her affidavit of 8 September 2016, CPK stated: "(35) I admit that in my life I have used drugs and alcohol to excess. On reflection I believe that was because it was a way of coping with the violent relationships I was in. I was able to manage the stress and fear, and numb the pain and humiliation, when my partners hit me and abused me. (36) Around the time I left the relationship with [Partner 2] I was able to stop using drugs and have not used drugs in a long time. I have also been able to reduce the amount of alcohol I consume, and now will only have a drink for a special occasion. I never intentionally go out to get drunk any more. (37) When I think back to the criminal offences I have committed, I feel deep regret and shame. I am disappointed that I let myself get trapped in such destructive relationships. Whilst I do not excuse my behaviour, I believe the prevalence of domestic violence played a significant role. I am now free of the cycle of low self-esteem and violence. I have learnt how to deal with the violence in my background and to stop the cycle. For this reason, I have not had any further violent offending".
33. In June 2005 - CPK made several telephone calls to the police in the early hours. She complained that people were trying to set fire to the house by pouring petrol into a garden hose and placing the hose under the house. Police attended several times, and each time made a search of the grounds and could find no evidence of petrol or a garden hose on the ground. CPK kept telling the police that unknown persons were in the street and would leave when the police arrived. Police spoke with security people that were on patrol in the estate at the time, and they advised police that they were parked in the street looking for the alleged persons before the police arrived and had not seen anyone.
34. In September 2005 - at 2:30pm on this day, CPK was at a friend's house when she was approached by Partner 2 who was in an aggressive state. The police notes report that CPK reported that she was approached by Partner 2 in an aggressive state, he was drug affected and probably agitated because he could not "score any more drugs". She told the police that she and Partner 2 had been in a de facto relationship for 5 years and he had begun abusing her and calling her "a slut". He said to her "wait till I come back and I will stab you". Partner 2 then left. Once CPK could see that he had left, she left and went to a friend's address.
35. CPK attended the police station the next day requesting an Apprehended Violence Order be made against Partner 2 for her protection.
36. In December 2005 - there was an incident at a motel in NSW on this date involving the applicant and an adult female, who were both staying at the motel. They were drinking together and several local males had joined them. The other woman was talking to one of these males when the applicant became upset and accused the other female adult "of fucking everyone in the hotel", which upset the other female and she yelled at the applicant. They argued. Several times they were warned by the manager to "keep the noise down and stop yelling" but they continued with such conduct and were asked to leave. When the applicant refused to leave and the police were called, they transferred her to another location.
37. In January 2006 - police attended at a home in NSW at about 6:30am on Sunday 1 January 2006 in relation to a domestic incident. The people they saw at the property were still consuming alcohol and some were well intoxicated. CPK was present. A person was arrested by police for assaulting his de facto partner. He was so affected by alcohol that he could not be interviewed.
38. In February 2006 - CPK was due to catch a bus at about 8:30pm from [Location] to [Location]. She went to catch the bus. Partner 2 had been drinking alcohol all day and according to police was "well affected at the time". He had found out she was leaving and arrived at the departure point. He then started a verbal argument with her. Eventually she went to the police station to seek police assistance. Police attended with her and waited while she boarded the bus without further incident.
39. In August 2006 - police attended the home of CPK in [Location] after a telephone request by CPK. She sought police assistance because of conduct by Partner 3. Partner 3 had decamped before the police arrived. She told the police that he was "just intoxicated" and that she had no fears and did not want any police action.
40. In October 2006 - CPK had separated about 18 months before from Partner 2. Police attended her home in [Location]. She told them that Partner 2 and she had remained friends since the separation, but had "not been in a relationship since". She said both she and Partner 2 were at a party in a private home in [Location] on 11 October 2006 at about 3:30pm when Partner 2 suddenly "snapped at the victim and started to yell at her 'I don't give a fuck who is around. I'm going to bash you and I'll fucken jump on your head'". CPK told the police that she got off her seat and started to walk away when Partner 2 started to chase her around the chairs. She said he then sat back on the lounge and started drinking his beer again. When she saw him pick up a fork she became fearful and she moved quickly away from him. She said she suddenly then felt a sharp pain in the back and she fell to the ground.
41. She said that when she was on the ground she saw Partner 2 bend down and stab her in the left foot with the fork. She said that when she attempted again to get up off the ground she saw Partner 2's right hand swing to the right hand side of her head, and she felt a sharp pain to her neck. She said she looked around and saw that Partner 2 still had the fork in his hand. She alleged that he then swung his right hand with the fork in towards her ear. She said she was able to push him away, got up and left the location. She stated that she informed Partner 2 that she was going to lay charges against him, and he replied "I don't give a fuck". Attempts were made by the police to arrest Partner 2 without success. The police noted that CPK had cut marks to her back, her left foot, a small cut to the left hand side of her neck, and a cut to her left ear.
42. In January 2007 - at about 7:30pm police were called to a unit near the unit of CPK. A female occupant was extremely intoxicated and verbally abusive to the police and other residents. She did not know where her children were. She complained that CPK had taken her children and refused to return them to her. The woman was extremely aggressive and abusive toward the police and continually attempted to instigate confrontations with police and other residents of the unit block. She was also extremely intoxicated and was still drinking alcohol at the time of the police arrival. She had difficulty standing without assistance. Eventually police formed a view that she was complaining that CPK had taken her children from her and was refusing to return them. CPK until that afternoon had been residing with the woman in her unit and then they had an argument and CPK moved out. Police spoke with CPK and she asserted that she did not have the children and had not seen them since leaving the unit that afternoon. The police later located the children in the mother's unit and elsewhere.
43. In January 2007 - police were again called to come to the home of CPK in [Location]. She complained that Partner 2 with whom she had been in a domestic relationship for about 1 month, had returned to the unit at about 11:00pm on 12 December after being out during the day consuming alcohol. CPK said that she had been at a friend's unit and had not been drinking. The police recorded that when she returned to the unit she and Partner 2 lay together on a mattress on the kitchen area of the unit and watched television. Soon after, Partner 2 stood up and turned off the TV. All the lights were off in the unit. When Partner 2 returned to the mattress he poked his eye on something. He believed CPK had done something to him. He became enraged, yelling and swearing at her saying "mother-fucker, cunt, you poked me in the eye!" He got up off the mattress and proceeded to push over furniture expecting to find her in the dark. Then he returned to the mattress and she felt him put his hands around her neck, squeezing her neck hard enough to prevent her from pulling away. He held her throat for about 2 seconds. He was still yelling at her. She said she was fearful of him. He then settled down. He asked her to lie down again on the mattress. Instead, she stood up and left through the front door and went to a neighbour's house. She contacted the police. When the police arrived shortly after they went to the unit with CPK but Partner 2 had left. The police proposed to charge Partner 2 with common assault.
44. In January 2007 - CPK and her girlfriend went for a walk from her unit in [Location]. They closed the front door. CPK had a conversation with "POI" and CPK told POI he could enter her house by the bedroom window and open the front door. While he was in the bedroom, he went through CPK's wardrobe looking for his wallet. It was reported to the police that he had made a mess by throwing her clothing about the floor. He stayed for about 10 - 15 minutes. While he was looking for his wallet, CPK went to the neighbour's house and returned at a later time. CPK told the police that the suspect was homeless. He was not located when the police attended and they took the matter no further.
45. In January 2007 - police attended the home of CPK in [Location] after a report that the unit was being trashed. On arrival the police observed that the front security and main door of the unit had been damaged. The security screen and mesh had been torn from the outer security door and the main solid-core inner door had been kicked off its hinges and was lying on the floor among broken pieces of architrave. The police spoke with CPK who told police that the suspect had kicked in the door. She stated that she was behind the door when it was kicked in and saw the suspect do it. She said that the damage was in retaliation for a verbal argument where she had called the suspect "a mother fucker" and the suspect had retaliated by calling her the same. The argument had developed until the suspect had kicked in the door. CPK had gone to the adjacent unit and called the police. She searched nearby but could not find the suspect.
46. The police recorded: "all persons in attendance were well to seriously affected by alcohol. Police had difficulty in obtaining from any party as they were more interested in continuing the verbal abuse at one another. Due to the state of intoxication of [CPK], she was told that police would follow up the investigation on the pm of Wed 17/1. She understood this necessity to wait till she was sober …. [CPK] then asked the police to fix her door. They advised her to contact the landlord to facilitate repairs. The police stated they would assist her to stand the heavy door and barricade it for her. She then proceeded to call police "dog cunts" and other choice words, and told the police to 'fuck off'. Police obliged".
47. In January 2007 - the police attended CPK's home attempting to locate Partner 2. They observed that the green door of the residence was damaged. The internal screen mesh had been ripped from the frame and was located lying in front of the residence. The front door had been extensively damaged and was off its hinges. The front door had been placed back in the frame and was held up by a table from inside the residence. Police also observed that the front window of the residence had been broken and was open. Police had concerns for the safety of CPK and entered the premises. They searched the residence but did not locate CPK or the partner.
48. In January 2007 - police records record that CPK and Partner 2 were cohabiting at an address in [Location] with the sister of Partner 2. On 31 January 2017, CPK and Partner 2 had consumed several alcoholic drinks at numerous locations in the south of [Location]. They became separated at some point. CPK had consumed about 8 drinks the day, being a combination of cans of beer and cans of bourbon and coke. At about 8:30pm she went home and started to prepare dinner. Then Partner 2 arrived. He asked CPK for a cigarette which she provided. He went to the backdoor carrying a glass of water in his hand. He then turned and threw the water and the glass at CPK. Then he came up to CPK and hit her in the head with a closed fist. He then chased her out of the house. She ran to the next door neighbour yelling for help. Partner 2 remained in the house and started gathering CPK's belongings and throwing them out of the front of the house into the street. CPK was not able to raise anyone next door. But she went to another house when they allowed her to call the police. The police subsequently arrived and took a statement from CPK. Later at about 9:20pm they located Partner 2 and arrested him. Whilst in custody he became verbally aggressive to the police and was then placed in a cell. He then ripped up a blanket by standing on it and tearing at it with his teeth. He was handcuffed and placed in another cell devoid of all items. He started to flood the cell by running the tap and blocking the drain. He continually yelled abuse at the police and kicked and banged his head on the cell door.
49. In February 2007 - police records record that on this date at about 2:30am, CPK was sleeping in her then home at [Location] when her then partner ("Partner 2) came home intoxicated. He walked into the bedroom where she was sleeping and woke her. He told her "get up and make me a sandwich. I'm hungry". She went out to the kitchen and he followed her. She made a sandwich and Partner 2 picked it up and said "I'm not hungry anymore. I don't want this shit". He then threw the sandwich at CPK. It hit her and then landed on the floor. She walked away from Partner 2. And entered the toilet. When she opened the toilet door to exit, she saw Partner 2 standing in the doorway between the laundry and the kitchen. Partner 2 then threw the knife that CPK had used to make the sandwich at CPK. It hit CPK in the temple area on the left side of her head causing a 2cm cut and swelling to that area. The injury bled freely over the toilet floor of the house. Partner 2 Continued to yell abuse and row with CPK.
50. The police were called, but when they arrived Partner 2 had departed. The search of the local area did not locate him. CPK was taken to hospital by ambulance. The assault and attendance at the home by Partner 2 was in breach of the existing AVO and an existing bail condition.
51. In April 2008 - on this date the police were called at 6:00pm to attend on an alleged assault. The parties were CPK and a female alleged victim. The victim spoke with police but they reported that she was extremely intoxicated. They said that they could not ascertain from her what had actually happened. By the time the police had arrived at the scene, CPK had decamped. Police advised the alleged victim to attend the next morning at the police station to give a statement if she wished to pursue the matter. It appears that the victim did not attend.
52. In August 2009 - police were called to the home of CPK in [Location] at about 12:50am. They recorded: "About 12:00am Thursday 27 August 2009 the POI has attended at [the address of CPK] to join in [CPK]'s birthday celebrations. The POI was there for about 20 minutes before having a verbal argument with another partygoer. [CPK] has told the POI to leave and the POI refused. [a person] physically threw the POI out of the home. [CPK] alleges that a short time later the POI threw a block of cement through her front window causing it to smash. [CPK] did not see this happen but police said it could only be the POI because no one else was outside at the time. [CPK] was severely intoxicated and could not provide further information to police. She was informed that she would be required to attend [Location] police station after 7:00pm on Thursday 27 August to provide the OIC with a statement. There were numerous people at the location, but none would provide police with any information on the matter.
53. CPK obtained employment with a [Location] Family Violence Service from August 2007 to February 2008.
54. In October 2009 - the police were called to the home of CPK. Her brother was visiting. About 5:45pm the brother, CPK and other persons had been drinking for several hours. The brother wanted a cigarette and did not want to wait his turn. CPK's niece lit a cigarette for the brother. The brother kept swearing at CPK then walked up to CPK and put the cigarette out on her forehead. CPK stated to police "it stung, it hurt" when the brother put the cigarette out on her forehead. The police observed a small burn mark on the upper left side of CPK's forehead. Police took a photograph of the injury and recorded her statement. The brother was not present when police arrived, and police efforts to locate him were unsuccessful. At the time the brother was on parole and the police then arrested him as wanted in relation to this matter. He was subsequently arrested and charged.
55. In December 2009 - Police attended the residence of CPK in [Location] at about 3:30pm. CPK apparently told the police that she had been drinking most of the afternoon with her cousin, who is the mother of a person referred to in the police report as "POI". Also with her was POI's father. At about 3:30pm, the POI attended on CPK's house, which is located next door to his. He had also been drinking all day and was highly intoxicated. The security screen door was locked and the POI kicked the door in the middle of the screen, bending the screen out of the frame and bending it out of position. That lead to the police being called because of yelling and arguing that occurred. When the police arrived, POI again began yelling at them. The police asked his parents to take him inside. The police attended CPK's house. She told police what had happened and also informed them she did not want POI charged, but she didn't want him coming near her home again as she was concerned about having trouble from her landlord. She signed a short statement in regard to the malicious damage and the police left.
56. In December 2009 - At about 11:00pm on this date, the police were called again to CPK's residence. CPK, a person whom the police refer to as "POI" and others were at the address drinking alcohol. All of the persons there were, according to the police, "well intoxicated". It is recorded that at about 11:00pm, the POI became abusive towards a number of people at the location and was asked to leave. The POI subsequently kicked in the front screen door. When police attended at the location a short time later, they stayed with CPK, POI and other "unknown persons". The police recorded: "all persons spoken to were well intoxicated, uncooperative and abusive towards police…. Details of the persons involved were obtained. The POI was moved on from the location. Follow up with the victim at a later stage is required".
57. In December 2009 - [Location] police attended. CPK was affected by marijuana and was arguing with a female person aged 23, who had called the police. There was a current AVO in place restricting the behaviour of the applicant for the purposes of protecting the other female. The police noted that the applicant had "a prior history of violence, including stalking and intimidation". The police observed that the applicant was "well intoxicated" and they removed her from the location. A male person asked the police to remove the applicant from his house as she was drinking in his house and arguing with him. He said there was an AVO restricting his conduct for her protection and he did not want to be "locked up" for breaching the order. When the police spoke with the applicant, she initially refused to leave, but later took herself and her stereo to the house next door. The police spoke with her regarding the AVO and she replied "once youse leave, I'll just go back there anyway".
58. No arrests or charges were affected.
59. In January 2010 - police records disclose that the applicant and another female ("The accused") had been drinking alcohol at licensed premises across the road from their shared home. They were "well affected by alcohol". CPK returned home. Sometime later the accused was walking home across the road. CPK shouted something at her and the accused stopped. The police report then states: "the accused came up to the victim and got her in her face. The victim pushed her back away from her. Then they have both got into a scuffle with each other. The accused was chasing the victim around inside the house and they have again started fighting each other and kicking. The victim has picked up a chair and hit the victims (sic) across the head hitting her in the forehead causing a large lump on the right side of the head. Other persons present have removed the accused from the house and stood in the doorway preventing the accused from re-entering the premises. Then the victim slammed the door. The accused then smashed the front window of the premise causing glass to shatter inside the lounge room floor. The victim opened the door and saw the accused near the window. The victim contacted the police. Police attended, but the accused had left the area. But she returned a short time later and the police then arrived and arrested her. Because of her state of intoxication she was not interviewed. She was charged with assault and malicious damage.
60. In March 2011 - the Probation and Parole Service prepared a pre-sentence report in preparation for the sentencing of CPK in the Local Court at Dubbo. CPK told the officer who prepared the report that for about 10 years she was in a domestic relationship characterised by domestic violence. She said that during this period she was subjected to verbal abuse, intimidation and violent physical assaults which caused her hospitalisation on more than one occasion. She recalled that during this period she resorted to alcohol and illicit drugs (cannabis and amphetamines) as a means of coping with her situation. The officers spoke with a psychologist who has seen CPK shortly after the commission of the offences to be dealt with in March. The psychologist reported that an assessment shortly after the offences were committed revealed that CPK was experiencing high levels of anxiety in a context of Post-Traumatic Stress Disorder, probably as a consequence of domestic violence inflicted upon her over an extended period of time. CPK also told the officer preparing the report that she had been abstinent of cannabis and amphetamines since about 2001 and she had moderated her alcohol use.
61. In March 2011 - the applicant was convicted of those 2 offences. She was sentenced to imprisonment for 8 months. The sentence was suspended upon her entering a bond to be of good behaviour for a period of 8 months. She was ordered to pay court costs of $79 on each matter.
62. The conditions of the bonds to be of good behaviour that were entered into in March 2011 were: 1. Offender if to be of good behaviour; 2. Offender is to appear before the court if called upon to do so at any time during the term of the bond.
63. When Partner 2 moved to [Location] and joined her, the violent relationship continued. She said that she reported threats and assaults to the police a few times and she remembers there was an AVO in place to protect her "but I don't think it made much difference to the situation".
64. She said in her affidavit: "[Partner 2] would always hit me when we argued, and once he hit me so badly that I had a collapsed lung and had to go to [Location] hospital. I spent 1 week in the intensive care ward and another week in the general ward recovering. When that occurred I remember speaking to the domestic violence staff at the hospital and I was referred to a counsellor who I spoke to about the situation I was in. I tried to leave [Partner 2] many times"
65. In June 2014 - a couple were at an oval in [Location] watching a football game. They had their 2 children with them. The woman walked the children to the toilets. When she was in the toilets an argument occurred between her and the applicant. That was on a Saturday. On the following Monday, the couple attend [Location] police station to report the incident at the football. The woman said that when she was with the children in the toilet she had an argument with the applicant and the applicant pushed the 2 children.
66. The police thought that the couple had attended the police station because they believed there had been a complaint made about them. They were advised to attend the court office to apply for a Personal Violence Order.
67. In September 2014 - CPK and Partner 3 attended several premises in [Location] to drink together with family and friends. They were drinking 375ml cans of beer continuously throughout the day. Partner 3 became jealous of CPK talking to other people. Around 8:30pm Partner 3 started verbally attacking CPK. He punched her. She walked away and he followed her. She started to walk to a store to buy some cigarettes. He followed her, staying some distance behind, occasionally yelling at her. When she arrived at the store, it was closed. She began to walk home. Partner 3 continued to follow her. Then he stated to yell out at her. She became fearful and ran and hid in some bushes. She then walked some distance and called the police. She had swelling to her left eye. She provided the police with a statement and was treated by ambulance members. Partner 3 was arrested when he presented himself to police. The police considered that he was too intoxicated to participate in an interview.
68. Between January 2015 and June 2016 - the applicant was employed at a college. In response to queries from the Children's Guardian as to concerns or complaints in respect to the applicant, the campus manager in his email reply of 5 August 2016 noted that one area of concern to him and some of the other staff members, which occurred 2 or 3 times when she and her partner were having a row at home, they would row loudly in the car park of the college. He said "sometimes he would ring many times. We encourage [CPK] and her partner to keep their domestic rows out of the school. My sense was that [CPK] was the recipient of the aggression rather than the aggressive one".
69. The campus manager reported that there had been no disciplinary proceedings or reports in respect to the applicant.
70. In May 2016 - between 11:00pm and 11:50pm, a male person was drinking at a location in [Location]. The applicant arrived in order to see the male person, and the male person then punched the applicant with a closed fist to the right side of her face. The male person was intoxicated at the time and the assault was unprovoked. The applicant left the location and went to a friend's house. The friend then contacted the police and they obtained a statement from the applicant. She complained after the incident of soreness to the left side of her face. The police subsequently arrested [Partner 3] for breach of the AVO.
71. June 2016 - the evidence establishes that there was an AVO issued in June 2016 for a period of 12 months restricting the conduct of Partner 3 for the purpose of protecting the applicant. The order was issued in [Location].
72. Material produced by the police informed the court that the applicant and Partner 3 had been living together since 2013 in [Location]. It was said "there is a history of domestic violence incidents between the two, both verbal and physical, over the past 3 years. There have been previous AVO's in place to protect [CPK]. There is a current AVO which was put in place before [Location] Local Court on [date] where [Partner 3] is the defendant and [CPK] is the person in need of protection".
73. In relation the breach of the previous AVO on in October 2016, the police alleged: "About 10:00pm on [date] 2016, the victim and the accused were at their home address ….. [Partner 3] had consumed about a dozen VB beers during the course of the night. [Partner 3] and [CPK] became engaged in a verbal argument over [Partner 3] and his jealousy and controlling ways over [CPK]. [Partner 3] and [CPK] were laying (sic) in bed arguing when [Partner 3] has leant over and grabbed [CPK] around the throat with his hand, told [CPK] to shut her mouth. The force of the accused's hand around the victim's throat has caused [CPK's] head to sink into the pillow and restricted her breathing for about 5 seconds. [CPK] felt short of breath and pushed [Partner 3]'s hand away. [Partner 3] continued to yell at [CPK]. [CPK] did not say anything else to [Partner 3] and eventually went to sleep. [CPK] felt frightened and scared for her safety.
74. [Location] Police recorded the following: On [date] 2016 [CPK] and [Partner 3] attended an address in [Location] to visit family members. When [CPK] and [Partner 3] arrived, [Partner 3] began to yell at [CPK] again calling her a 'father fucker' and a 'slut'. [CPK] had enough of the abuse from [Partner 3] so she left the location and attended [Location] police station to report the incident. On arrival at [Location] police station, [CPK] attended at the front counter where she burst into tears and was physically upset by the incident, with her hands shaking, and had to be comforted by police. [CPK] was reluctant at first to give police a statement and as she was afraid of the repercussions it would have on her attempt at gaining employment, and also for her own safety. [CPK] expressed to police that [Partner 3] is mentally unstable, controlling, manipulative and possessive of her. [CPK] composed herself and supplied police with a signed statement". [Partner 3] was then charged with breach of the AVO.
75. The police records produced by the Police do not cover the period since 17 November 2016. The Applicant did not offer any evidence of her conduct in that period, Although the applicant claims to have reduced her consumption of alcohol and drugs and improved her lifestyle, she has not stopped using alcohol, she has not provided any evidence of her undertaking any drug and alcohol rehabilitation programme, or of her participating in Alcoholics Anonymous, or of her consulting a general practitioner or drug and alcohol specialist about her abuse of alcohol or other drugs. There is no expert evidence as to her abstinence or reduced use. There is no evidence that she has sought professional advice or education into how to avoid being the victim or perpetrator of violence and other abuse.

Age of the person when the matter occurred

1. The applicant was 22 years of age.

Age of the victim of the conduct at the time they occurred in matters relating to the vulnerability of the victim

1. The victim was about 28 years of age. There is no evidence of any vulnerability of the victim except being under the influence of alcohol..

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

1. The victim was about 6 years older than the applicant and the parties were living in a de facto marriage.

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

1. The victim was not a child.

The person's present age

1. The applicant's present age is 40 years

The seriousness of the applicant's total criminal record and the conduct of the applicant since the matters occurred

1. The evidence establishes that for more than 16 years CPK has lived a chaotic lifestyle marred by alcohol abuse by herself and her associates, also by her being the victim of violence and other abuse by others (including verbal abuse and threats and instances of malicious damage to property) and also as the perpetrator of violence and other forms of abuse against others.

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

1. CPK by her solicitors engaged Dr Pratley, a forensic psychologist, to prepare an assessment of the risk of CPK offending against a child in the future. The interviews occurred in July. At that time CPK related that she has been in her present relationship with partner 4 for 3 years. She said the relationship is "stable" and no violence. That appears to be untrue as the COPS records record complaints of Partner 4 assaulting CPK. CPK also minimised her partner's alcohol abuse. She said "He doesn't drink every day at the moment" and "he'll have his little binge and that's it, he'll be off it for a while". She agreed he has an exemption from looking for work because of his alcohol use.
2. CPK told Dr Pratley She reduced her alcohol consumption after leaving Partner 2 and rarely drinks now. She also said in July 2016 that she hadn't used alcohol since September 2015. She said she had used Cannabis throughout the relationships with partner 1 and partner 2, but for 10 years she had not used cannabis or amphetamines. She said she had achieved the abstinence without therapeutic assistance. In re-examination in December, she said she last drank alcohol on her birthday in August only 4 months prior. She said she drank about 15 cans of VB. She later said it was "15 in a day" that she drank on her last birthday.
3. She denied she had been drunk when the police came to her place. She said, "not really drunk. I don't drink….. I might have 15, but that's it". She said the last time prior to her latest birthday that she drank alcohol was her birthday in August 2015. Given her drug and alcohol history and the Police COPS records the Tribunal finds CPK grossly minimises her use of alcohol and other drugs in the last 10 years.
4. Dr Pratley proceeded on the basis that CPK, apart from the trigger offence, had not committed any other offences for violence. That overlooked the prior charge of assault that was found proved. Dr Pratley accepted CPK's assertion of her ceasing to use alcohol and other drugs without therapeutic steps or professional advice. In cross-examination CPK said she doesn't drink but later volunteered that she drinks on "special occasions". The Tribunal does not accept that evidence of abstinence. . Dr Pratley concluded that CPK , "although impulsive with limited coping capacity" does not pose "a risk to the safety of children that is above the risk posed by an average community member".
5. Dr Pratley reported that CPK in interview "tended to provide superficial responses to questions, particularly as the questions became emotionally -focussed" and "When CPK became distressed she was unable to contain herself emotionally and refused to answer further questions, terminating the first interview." She reported that, "….her difficulty managing her emotions presented a number of obstacles to the current assessment." The second interview was by telephone and there was a serious problem with her giving superficial answers and then not providing answers to questions arising, even with prompting.
6. Dr Pratley in her report did not refer to the contents of the police COPS records. She relied in part on the length of time offence free since the trigger offence in March 1999. But her ongoing abuse of alcohol and use of violence and other forms of abuse since then and the conduct of her associates in relation to alcohol and abusive behaviour are serious issues that are revealed in the COPS records. Dr Pratley's interviews were in July. Some of the COPS reports were sent to the Children's Guardian by NSW Police by letter dated 15 June 2016 and it appears they were not provided to Dr Pratley with instructions dated 5 July 2016.Other COPS reports were filed and served on 7 December 2016, after Dr Pratley's report, which is dated 19 August 2016.
7. At the hearing Dr Pratley said she had been provided with more of the COPS records, but it appeared it was only several more and not all of them. She said that CPK would need therapeutic support and social support to avoid violent relationships. Dr Pratley said that having read the additional COPS documents given to her in the witness box, her opinion as to risk did not change because the risk is to do with the risk of her staying or being in a violent relationship. But she also said that CPK has difficulty in acknowledging the violence she has in her relationship with Partner 4 and she would have difficulty in recognising the problems if her relationship with partner 4 would affect her ability to protect children. She also said, "I question whether the current relationship is less violent or just different".
8. Dr Pratley did not acknowledge in her report or her oral evidence that CPK had been abusive of people who were not her partner. She seemed to assume that any abusive behaviour of CPK was to violent partners of CPK. In Oral evidence Dr Pratley conceded that people with addictions are unreliable when they state what their intake of alcohol or other drugs is, she also conceded that she had not discounted CPK's statements for that.
9. The evidence establishes that CPK has a long background of problems with alcohol addiction. On the balance of probabilities her current partner has such an addiction. She has a history of partnering only with men who have such a problem. She has a history of socialising with people who abuse alcohol. There is no reliable evidence before the tribunal that she is addressing the alcohol addiction.
10. CPK has a background of using Cannabis over some years and using amphetamines, but she has not disclosed the length of time. She claims to have abandoned these drugs, but the tribunal does not have reliable evidence of abstention. There is no evidence of her seeking any medical advice or treatment or other therapeutic assistance to stop using either of those drugs. The Tribunal is not satisfied that she has abandoned the use of Cannabis or amphetamines.
11. There is considerable evidence that CPK herself uses violence and other abusive behaviour in her dealings with other people. This is not an attribute of her relationships with her partners; it is an attribute of CPK's behaviour, the victims have included police officers doing their jobs and other people who have not lived with her. CPK also socialises with others who abuse alcohol and use abusive behaviour as a way of dealing with other people.
12. If children are in the care of CPK, and spend time at such socialising events, there is the real risk of incompetent care by drunken adults, being the victim of abusive behaviour by an adult, or witnessing adults directing violence or other abusive behaviour at others.
13. Children may be physically or psychologically injured by violence or other abusive behaviour by an adult. Witnessing abusive behaviour towards others may cause a child to be confused, unhappy, fearful, distrustful, insecure or terrified.
14. But a very serious danger for a child that can be a lifetime curse, is that the child can learn from the adults that violence and other abuse are acceptable ways to deal with other people, or that such behaviours are acceptable behaviour for a man towards his female partner. There is no evidence that CPK has any real understanding of this danger or has sought professional help for her to address her problem of partnering with abusive men or her problem of using abusive behaviour in her dealings with others.
15. The Tribunal finds that on the balance of probabilities there is a likelihood that CPK will continue to engage in the abuse of alcohol and will continue to engage in violence and other abusive behaviour to others and to socialise with others who have those problems. It is likely that if CPK is working with children CPK will repeat an incident like the trigger event involving injury to another person.

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

1. CPK worked part-time from February 2015 to April 2016 for a school for young people with disabilities as an administrative assistant. Occasionally she assisted Teachers in the classroom. She also testified: I also was asked to speak with the children if there was a fight between the students. I would be asked to take one of the children away from the other child and speak with them to find out the cause of the problem. I was well aware of the policies and procedures that applied to the school and the Children…… My role was to speak with the children and try to calm them down or understand the cause of the fight.

Any other matters that the Commission considers necessary

1. The Children's Guardian opposes the application. There is no further such information

Conclusions

1. The tribunal concludes, for the reasons above, that CPK poses a real and appreciable risk to the safety of children and on the evidence before the Tribunal refusal of CPK's application for a Working With Children Check Clearance is the correct and preferable decision. The decision of the Children's Guardian should be affirmed.

Privacy

1. Broadcast or publication of the name or other identifying information of CPK or any partner of her without leave of the tribunal should be prohibited.

ORDERS

1. Accordingly the orders of the tribunal are: 1. The decision of the Children's Guardian of 29 April 2016 refusing to grant CPK a Working With Children Check Clearance is affirmed; and 2. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of CPK or any partner of CPK is prohibited.

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: 30 May 2017