The applicant, seeks review of a decision of the respondent, the Children's Guardian, to cancel the applicant's Working with Children Check Clearance (WWCC). The WWCC was granted on 10 June 2015 pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (the Act). The WWCC was cancelled by the respondent pursuant to s 23(1) of the Act on 15 August 2015 (the Decision).
For the reasons that follow, the Tribunal has decided to affirm the decision of the respondent.
[2]
Background
On 10 June 2015, the applicant was granted a WWCC in order to pursue paid child-related work in the area of transport services.
On 22 June 2015, the applicant was charged with two counts of common assault, domestic violence related, pursuant to s 61 of the Crimes Act 1900 (NSW) (Crimes Act) (the common assault offences) and one count of intentionally choking a person with recklessness pursuant to s 37(1) of the Crimes Act (the choking charge). The victim of the offences was the applicant's wife.
On 21 August 2015, the applicant entered a plea of guilty in respect of each of the two counts of common assault, and the choking charge was withdrawn and dismissed.
On 17 September 2015, the applicant received a s 10 bond pursuant to the Crimes Act (Sentencing Procedure) Act 1999 (NSW) for a period of 18 months in relation to his convictions for common assault, including a condition that he complete anger management counselling and attend his general practitioner for referral for counselling therapy as needed.
At the hearing of the common assault charges, an agreed statement of facts (Agreed Facts) was tendered. The respondent's written submissions accurately summarise the Agreed Facts and we reproduce the following relevant paragraphs (footnotes omitted):
[A]t the time of the common assault charges the applicant (then aged 41 years) and his wife (then aged 25 years) had been married 8 years and had two sons, aged 4 and 2 years. At the time of the common assault the applicant's wife was seven weeks pregnant. In the two years prior to the common assault offences the applicant would "become easily angered" and "would argue unexpectedly about things day to day". The applicant's wife alleged that the applicant had "previously assaulted and intimidated her on numerous occasions" but identified no specific occasions when this was said to have occurred. The applicant's wife however disclosed to Police that she was concerned for her safety and that of her children and that the applicant was "unhappy about her recent pregnancy and is constantly blaming her for this".
The Agreed Facts disclose that immediately prior to the common assault offences the applicant's wife asked the applicant to bath their two sons whilst she prepared food. The applicant prepared to do this but went to the bedroom and lay down. The applicant's wife followed the applicant into the bedroom and the couple argued. The applicant got up off the bed, bent down and picked up his rubber sandal with his right hand and "smacked" his wife across her left cheek with the sandal (first common assault offence). The applicant's wife was shocked and felt immediate pain to her cheek area. She asked the applicant why he would do such a thing as she was seven weeks pregnant. The applicant laid back down and his wife picked up the sandal and tapped the sandal on the applicant's hand saying "you hit me like this in face, you hit me like this. I'm pregnant woman". The applicant and the applicant['s] wife's children witnessed the incident and realising this, the applicant's wife took the children to another room and returned to the applicant. She then told the applicant to rest and she bathed the children.
The Agreed Facts disclose that a short time after the first common assault offence, the applicant's wife returned to the bedroom to get a nappy after having bathed the children. While she was in the bedroom the applicant approached her and with his right hand grabbed her around her throat. The applicant's wife said "move, move I have baby". The applicant punched his wife across her shoulders using closed fists, punched her to her right cheek, punched her three times to the stomach and once to her lower back area causing immediate pain to his wife's face, stomach and lower back area. The applicant's wife then spat in the direction of the applicant out of frustration.
A pre-sentence report dated 9 September was prepared by Corrective Services (NSW). The author of the report stated that the applicant "consistently minimised the seriousness of his offences", by describing his actions as "an accident", explaining that he was "just a bit angry" and "it wasn't really a punch". The author stated that the applicant "appeared unable or unwilling to take responsibility for his actions".
On 27 January 2016, the Police were called to the home of the applicant and his wife at the request of the applicant's wife. She told the police that they had had an argument and that the applicant had slapped her. The applicant's wife declined to provide a statement to the Police, saying that she just wanted the police to speak to the applicant. When speaking to the Police the applicant stated that his wife had "made it up to get him in trouble". As the applicant's wife declined to give a statement and there were conflicting accounts of the events no charges were laid.
On 10 April 2016, the applicant was again charged with two counts of common assault pursuant to s 61 of the Crimes Act, and also charged with one count of contravening an apprehended violence order pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The police facts disclose that there had been an argument between the applicant and his wife on 9 April 2016 in relation to her housework and her preparation of meals. The applicant allegedly pulled his wife's ponytail and pushed her repeatedly. She tried to phone the Police but the applicant pleaded with her not to do so. The applicant slept in his car that night, but when he returned he saw that his wife had packed up his belongings. He then spat at her and hit her on the arm and leg with a thong. His wife then contacted the Police and the applicant was charged with the offences referred to. On 15 August 2016, each of these charges was withdrawn.
[3]
Applicant's documents
Prior to the hearing, the applicant filed documents with the Tribunal's Registry. Relevantly, those documents included the following:
1. A letter to the Tribunal dated 13 October 2016. Relevantly, the applicant states that:
Common assault charges against me recorded in September 2015, not all the complaints against me are true. Police report says I assaulted my pregnant wife. Me and my wife both had no idea about pregnancy, and we lost (miscarriage that baby.
Canterbury hospital Doctor confirm it was miscarriage. The policy report also said I spat on her face, but police did not mention she spat on me first. It was true, we had arguments the day, and both we were out of control. Only difference is I did not call police and she did. The police report only says, my wife's side of the story. Yes, after she pushed me I slap her only once. And accepted my action to the police. I am deeply sorry about it. Police also found a few red mark around her neck and suspect it was done by me. But after careful observation they found all marks was skin rash and police drop that charge. As a result, honourable magistrate gave me Section 10, no criminal conviction and good behavior bond for 18 months. Which one successfully over last 22 of August 2016.
05.07.2016 my wife again complain breach of AVO. Honourable magistrate calls us for hearing, first, second and third hearing, my wife did not show up to the court. After careful observation honorable magistrate drop all the charges against me.
End of my explanation, Your Honour, we are still together, all I like to say my wife loves me and I love her too. We are blessed by two boys. I have been living in Australia since 2001 and I have never been on the wrong side of the law. I am a law abiding citizen. Only l like to say about my wife is, she got very bad temper and she cannot control her anger.
I am the only income earner for my family. Now my boy are 6 and 4 years old. They just about to start their life. Long way ahead for them. As a father I want to support them in their journey. Please, I need your help.
I would therefore humbly request you to reconsider my application on behave of the reason provided. l will however respect your decision. I am looking forward for a positive reply.
(bolding as in original)
1. A letter from the applicant's wife to the Tribunal dated 13 October 2016. She states that she is "really sorry" for what happened between her and the applicant. She states that she takes responsibility for her actions. She assures the Tribunal that "this sort of thing" will never happen again. She says that the applicant is a responsible father and "beloved husband". She says that, "during the problem" between her and the applicant, the applicant looked after the family financially. She says that now "we are happy together again" and that she and her husband want to be good and responsible parents. She says that "now my husband need a job", and that without the WWCC "it's hard for him to get a job", and that "without job it is really hard for us to survive with two boys";
2. A letter from Aston Legal, Solicitors and Barristers, to the applicant dated 17 September 2015. This letter confirms that Magistrate Burns decided to deal with the common assault charges under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1900. The letter explains that this meant that the applicant was discharged without a conviction recorded on the condition that he enter into a good behaviour bond for 18 months. The relevant conditions of the bond were that the applicant:
1. complete anger management counselling;
2. attend upon his general practitioner for counselling therapy; and
3. be of good behaviour.
4. In addition, the letter notes that a final apprehended violence order (AVO) was imposed on the applicant for 12 months. The conditions of the AVO were that the applicant not stalk, assault, molest, harass, threaten or otherwise interfere with his wife, or a person with whom she has a domestic relationship, or engage in any conduct which intimidates her or anyone she has a domestic relationship with;
1. Copies of Advice of Court Results dated 6 September 2016. These documents confirm what is stated in the letter of the solicitors referred to immediately above;
2. A letter of Mr Mostafa El-Gashingi dated 31 October 2015. Mr El-Gashingi is a registered psychologist. In summary, Mr El-Gashingi states that the letter was prepared at the request of the applicant's general practitioner for the purpose of examining the applicant's mental state. Mr El-Gashingi says that the applicant "is stable in his mental state and not experiencing any current psychopathology that is indicative of any known psychological disorder";
3. A report of a consultant psychiatrist, Dr Younan, dated 2 February 2017. In summary, Dr Younan states that he could identify no reason to disqualify the applicant from driving a bus and dealing with children.
The respondent had no objection to the Tribunal receiving any of these materials.
[4]
Respondent's documents
The respondent filed a large bundle of documents on 17 October 2016. In summary, these documents included detailed submissions dated 16 February 2017 (to which further reference will be made below), the notice of the proposed cancellation of the applicant's WWCC issued by the respondent on 1 July 2016; the notice of the cancellation of the applicant's WWCC on 15 August 2016; various records of Burwood Local Court; an IASK Response, setting out the applicant's AVO history; and various documents making up the response of the Department of Family and Community Services to the request of the respondent pursuant to s 31 of the Act. In total, these documents total over 100 pages.
The respondent filed further documents on 15 December 2016. These number over another 100 pages, and include the following: the applicant's Criminal History Index, and the responses of each of the Sex Crimes Squad, the Corrective Services (NSW), the Director of Public Prosecutions, Burwood Local Court, the Campsie Local Area Command, and the State Transit Authority in response to requests of the respondent pursuant to s 31 of the Act.
The Tribunal notes that the response of the Campsie Local Area Command included the evidence before Magistrate Burns and a transcript of an ERISP interview conducted by Campsie police officers on 21 June 2015.
At the Tribunal hearing, the respondent also tendered notes produced by Mr El-Gashingi on summons. These were notes Mr El-Gashingi created during the course of preparing his letter of 31 October 2015.
The applicant had no objection to the Tribunal receiving any of these materials.
The respondent also provided detailed submissions prior to the hearing. These submissions accurately set out the factual background to the present application, and the applicable legal principles.
[5]
The hearing
All the evidence referred to above was tendered without objection. The respondent cross-examined each of the applicant, his wife, and Dr Younan (who gave his evidence by telephone). We set out some brief remarks about these cross-examinations below.
[6]
Cross-examination of the applicant
The applicant confirmed that he was 39 years of age. His wife is 27 years old, and they had an arranged marriage. They were married in Bangladesh. He and his wife have two young children, respectively aged six and a half and four and a half years. The applicant came to Australia in 2001, and was granted citizenship in 2007. He has been working part-time as a taxi driver since November 2014. He and his wife have no family living in Australia, save for the applicant's brother.
The cross-examination conducted by the respondent's counsel was detailed, careful and respectful. There is substance to the respondent's counsel's oral submission that the applicant was non-responsive, evasive and aggressive in his answers to her questions.
The respondent's counsel asked him about the Agreed Facts summarised above. He agreed that he had slapped his wife, that his children heard the altercation, but did not see it. When asked whether he had apologised to his wife, he said that he had, but that he had just made a mistake. He said that he felt sorry, and that such an event had never happened again. He said that it was a bad day in his life. He agreed that he was angry and could not control himself. When the respondent's counsel put to him that these were facts that he had agreed to, he said that he did not know what the Agreed Facts were. When asked whether he pleaded guilty to the charges of common assault, he said that he pleaded guilty because he slapped his wife. He agreed that he was legally represented at the time he pleaded guilty.
The respondent's counsel asked him if he had ever apologised to his wife, and the applicant said that he did, or was "pretty sure" that he did. While the Tribunal has doubts about this, it accepts that, as he claimed, he continued to financially support his wife and his children after the assaults. He said that he just made a mistake and was sorry that it had happened. He denied grabbing his wife around her throat, or punching her on the shoulders, stomach, cheek and back. Counsel put to him that these were the Agreed Facts to which he had agreed at the trial. He said he did not know what was in the Agreed Facts. Counsel also put to him that the applicant knew that his wife was pregnant. The applicant also denied this, although this also appeared in the Agreed Facts. He denied that her miscarriage two weeks later might have been caused as a result of his assault of his wife.
The applicant said that he knew his wife was angry on the day of the assaults and that she was generally a very angry person, but that even if he lost the case today, she was still the mother of his children.
As to the court-ordered anger management counselling, the applicant claimed he had completed an anger management counselling course, and relied on the letter of Mr El-Gashingi is evidence for this. However, there was nothing in the letter which mentions anger management counselling. Counsel asked the applicant whether he had told his general practitioner and he was required to attend anger management counselling. As the respondent's counsel correctly submitted, the applicant mislead his GP about this.
When asked by the Tribunal whether the community would be content for him to be near their children without supervision, the applicant said that he had only had been abusive to his wife, and that he had never been abusive to children.
[7]
Evidence of the applicant's wife
The applicant's wife was called by her husband to give evidence. She had not been required by the respondent for cross-examination. The contents of her letter to the Tribunal are summarised above. The applicant's wife told the Tribunal that she wrote the letter herself and that its contents were true and correct.
Ms Douglas-Baker asked the applicant's wife what she meant when she wrote "I take responsibility for my action". She told the Tribunal that they had had a domestic, what they had done was wrong, and that she realised that the fault was hers as well her husband's. She said that this would not happen again, and she now works to control her own anger. She said that her husband needed a job and that they were in a poor financial situation. She said that her husband's anger was now "okay", and they had fixed everything up.
The applicant's wife also said that her husband needed the WWCC to be able to get a job. The Tribunal asked why she said that. The applicant's wife said that she did not want the applicant to drive taxis, as it unbalances their lives, and left no discipline for their children.
This was a point that the Tribunal later discussed with the applicant. The applicant told the Tribunal that he had a master's degree in Information Technology. This was the area he had been employed in Qantas for some nine years before he was made redundant and started driving taxis. The Tribunal suggested to the applicant that it may be possible for him to work in that area and that jobs would be available which do not involve working with children. The applicant said that this would not be impossible but there would be some areas closed to him. The Tribunal asked if he had tried working in that area again. It seems, although the applicant's answer was difficult to follow, that he had not.
[8]
Evidence of Dr Younan
Dr Younan was briefly cross-examined by Ms Douglas-Baker. She asked him what documents he had considered in preparing his report. He said he had not seen any documents, and relied on the patient's history in preparing.
In the circumstances, Ms Douglas-Baker submitted that the report should be given little weight of the Tribunal.
[9]
Relevant legislation
The starting point is s 4 of the Act which 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.
Section 23 of the Act provides that:
[10]
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.
2. The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance.
3. Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.
4. The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
In determining an application for review, s 30 of the Act provides that the Tribunal must consider the following matters:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(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.
Section 30(1A) further provides that:
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.
Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that the Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it". This includes material which may not have been before the original decision maker: YG & GG v Minister for Community Services [2002] NSWCA 247.
Section 63 of the ADR Act provides:
[11]
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.
[12]
Relevant legal principles
The respondent sets out the applicable legal principles correctly, as follows:
1. The Tribunal is to determine the applicant's application for review by determining what the "correct and preferable decision is having regard to the material then before it": s 63, ADR Act;
2. Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111;
3. The applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the Act;
4. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: BJB at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101.
5. The issue for determination is whether the applicant poses a "risk" to the safety of children: ss 18(2) and 27(1) of the Act; s 63 of the ADR Act;
6. The Tribunal is to determine, having regard to all the circumstances, whether "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": Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949. [1] In determining the existence of "real and appreciable risk" there must be a link between such "risk" and the safety of children;
7. The paramount consideration is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse": s 4 of the Act.
8. In determining the application, the Tribunal must have regard to the matters set out in ss15(4) and 30(1) of the Act: BJB at [45]. These matters are in similar terms: see CHB v Children's Guardian [2016] NSWCATAD 214 at [25];
9. After considering the s 30(1) factors, if the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in s 30(1A) of the Act: CHB at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267.
The Tribunal gave leave to both parties to file further submissions after the hearing. Only the respondent did so, on 6 March 2017. The submissions deal with a matter raised by the Tribunal during the hearing, namely the proper construction of the work "victim" for the purposes of the Act. In short, the respondent submits that it is not necessary for the purpose of this application to decide the meaning of the word "victim" as it appears in the Act.
[13]
The respondent's submissions
The Tribunal invited the respondent to make its oral submissions first. As the applicant was unrepresented it seemed to make more sense for the respondent to make its submissions, and then to allow the applicant to respond to those submissions. The parties consented to this approach.
The respondent submitted that there was clear evidence before the Tribunal that the applicant's violence had come to the attention of the applicant's children, and that there had been occasions on which the children disclosed this to third parties. The respondent submitted that the applicant's children had been exposed to domestic violence and at least a risk of emotional psychological harm. The respondent submitted that the Agreed Facts for the common assault offences and the subsequent allegations show a pattern of disputation and fighting between the applicant and his wife, and what takes this matter outside the realm of normal disputation is that certain events resulted in physical violence, namely the two common assault offences. Having pleaded guilty to those charges, the applicant was ordered to engage in anger management counselling, which he did not undertake, as he did not think there was a problem and that there was no need for outside help.
The respondent submitted that the applicant was not a persuasive witness given that he admitted that he had mislead his general practitioner and was not entirely honest with Dr Younan. While the applicant said he had provided documents to Dr Younan, Dr Younan said that he had not seen any such documents. It was submitted that the applicant was regularly non-responsive in his answers (a submission the Tribunal accepts) and was evasive and, at times, aggressive. The respondent submitted that even at the hearing, the applicant still displayed little contrition or remorse, still maintains his wife is the one with the anger problem and it was she who was responsible for the altercations. The respondent submitted that the applicant had no insight. The Tribunal considers that there is substance in these submissions.
The respondent submitted that Dr Younan's opinion did not rise above that of a mental health diagnosis, and that his report did not amount to a traditional risk assessment, being based entirely on the history that the applicant gave to him. The respondent submitted that the report is of limited assistance.
[14]
Meaning of the word "victim"
The Tribunal raised with the parties the meaning of the word "victim" in the Act. We wondered whether "victim" was confined to direct victims of a crime, or whether it included indirect victims. We raised this question in light of the fact that the "victim" of the common assault offences was clearly the applicant's wife, but that his young children were present in the unit at the time the offences occurred. The applicant himself agreed that the children heard the domestic violence, but said that they did not observe it.
We allowed both parties the opportunity to file submissions on the issue after the hearing. As noted, only the respondent filed submissions.
The respondent's primary submission was that it was not necessary to address the question as to whether the applicant's children were victims for the purposes of the Act.
In support of this submission, the respondent stated that under s 30(1)(k) of the Act the Tribunal is required to consider any matter the respondent considers necessary. The respondent submits that this would include the fact that the applicant's children had been exposed to - in the sense of hearing or seeing - domestic violence in their home perpetrated by their father. The respondent further submits that the Tribunal ought, in the exercise of its protective jurisdiction, take into account such other matters as arise on the material before it which would tend to suggest that the applicant poses a risk to the safety of children.
In this regard, the respondent submits that s 30(1) factors are not exhaustive. We accept this submission. While the s 30(1) factors are mandatory considerations, they are not the only matters to which the Tribunal may have regard: CHB at [28].
The respondent also submits that the task of the Tribunal is to determine whether the applicant poses a risk to safety of children: s 18(2) of the Act. The respondent submits that the Tribunal should be guided by the decision of Office of the Children's Guardian v CFW [2016] NSWSC 1406. In that decision the Supreme Court stated that where there is a "lingering doubt or suspicion" about the extent to which the applicant's children were exposed to domestic violence in the home, that doubt or suspicion should count against (although it is not fatal to) an applicant's case: see [16] and the reference to BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
The respondent's secondary submission was that, in light of the protective purpose of the Act, the natural and ordinary meaning of "victim" ought to be construed to extend to persons in the position of the applicant's children, that is, people immediately but indirectly affected by the conduct or alleged conduct of the applicant.
We accept that it is not necessary to decide this issue for the purposes of this application. We confirm that, as the Tribunal is able to take into account all relevant matters and considerations, and because the s 30(1) factors are not exhaustive, it is appropriate to take into consideration the fact that the applicant's children were in the unit and were exposed to their father's violence administered to their mother, regardless of whether or not the children were "victims' for the purposes of the Act.
[15]
The applicant's submissions
In his oral submissions, the applicant denied that he was rude or aggressive. He said he would talk from "real life". He said that neither he nor his wife was an abusive parent, and that his children were quite happy. He said that he lives for his children and thinks about them every single moment of the day. He says he is not a danger to his children or other children. He said that whatever happened between him and his wife, what appeared in the Agreed Facts was his wife's version of events. He said it was all against him, and had nothing to do with his version of events. The Tribunal suggested to him that this was not so, given that he and his solicitor had agreed the tender of the Agreed Facts to the magistrate on the common assault charges. In response, the applicant said that the reason he agreed to the Agreed Facts was that whatever he had done, including slapping his wife in front of the children, it was all bad for his children and that he was really sorry for "that one". He said that he and his wife had had a number of fights, and the reason that he did not leave her was that she was young, and needed time to grow, which he wanted to work on. He said they had had a lot of disputes but they had tried to resolve them. She said his wife had improved a lot. He said that he would give her time.
The Tribunal then asked the applicant to address the s 30(1) factors, a copy of which had been provided to the applicant by the Tribunal. The Tribunal indicated that it was going to assume that the applicant submitted that, on the evidence before the Tribunal, he did not pose a risk to children.
The Tribunal indicated that, even if it accepted that he did not pose a risk to children, it could not grant a WWCC unless it considered that parents would allow their children to have direct contact with the applicant in circumstances where he was not supervised: s 30(1A)(a) of the Act. The applicant said that if you looked at his history, he never had problems with anybody else, and certainly not with his children. He said the complaint was that he was abusive to his wife, not to his children. He said that the punching and kicking was of his wife, not his children. Member Davison asked the applicant directly what he thought members of the community would think about him driving their children on a bus, and whether they would feel comfortable with this. The applicant said that if they heard the whole story, and not just his wife's version of events in the Agreed Facts, they would understand. He accepted that if the public read the version in the Agreed Facts, they would not be comfortable.
The applicant said that the "real story … wasn't that bad" and that he was not the bad person depicted in the Agreed Facts. He said that he was sorry and tried to learn, and wanted a second chance for a fresh start for his family.
In relation to the s 30(1) factors, the applicant said that all he would say is that he was really sorry. He said he could guarantee that such things would not happen again. He said that he wanted to be an honest husband and father.
[16]
Consideration
We consider that the applicant was an unpersuasive witness. The Tribunal was left with the impression at the conclusion of the cross-examination that the applicant had no real insight into the circumstances of the common assault offences, offences to which he pleaded guilty. We think this because at the hearing:
1. The applicant said that his wife does not understand and needs "to grow";
2. The applicant repeatedly stated that his wife is the one with anger management issues, even describing her in his letter to the Tribunal as the one with a "very bad temper" and as the one who "cannot control her anger";
3. The applicant continually denied that he had anger management issues and blamed his wife on the matters which resulted in the common assault charges and his plea of guilty;
4. The applicant's repeated statements to the Tribunal that what appeared in the Agreed Facts was his wife's version of events, and had nothing to do with his version of events.
We now turn to consider the s 30(1) factors.
[17]
The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar (s 30(1)(a))
The applicant is not a "disqualified person" (see Act, s 18(1)) and he has not had an interim bar imposed upon him (Act, s 17). His clearance was not "refused", rather it was cancelled (see ss 8(3)(c) and 13A(1) where the terms "refused" and "cancelled" are used as alternatives). Accordingly, and strictly speaking, s 30(1)(a) has no application. Nevertheless, the Tribunal considers that the seriousness of his offences is relevant to the Tribunal's consideration of his application.
The respondent submitted that the Tribunal ought to accept the Agreed Facts and therefore the circumstances of the common assault offences and choking charge, that there had been a two year history of verbal and physical violence between the applicant and his wife, that the applicant's children were witnesses to the conduct giving rise to the common assault charges and had been witnesses to other, at least verbal if not physical, incidents of domestic violence in the home.
The Tribunal accepts this submission and finds that this factor militates against the Tribunal setting aside the respondent's Decision.
[18]
The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b) of the Act
Since the time of the common assault offences and choking charge in June 2015, the applicant is alleged to have breached both the conditions of his s10 bond and the AVO issued for the protection of his wife, and has been the subject of further charges which were withdrawn because the applicant's wife did not appear at Court to give evidence. The respondent submits that the applicant's wife is financially dependent upon the applicant and vulnerable to him.
The respondent submits that there is no evidence before the Tribunal to suggest that the applicant has engaged in anger management counselling. The evidence before the Tribunal suggests that the applicant had two sessions with Mr El-Gashingi (psychologist) and that those sessions were not in the nature of counselling, whether anger management or similar counselling, and that no further assessment or counselling sessions occurred thereafter.
The respondent submits that there is probative material to suggest that the applicant has a propensity to minimize both his conduct and his culpability for his conduct, and to blame his wife who, the applicant asserts, cannot control her anger. The applicant's version of the events between himself and his wife is inconsistent with the orders made by the Court on 17 September 2015 requiring the applicant to attend anger management and other counselling as necessary. The applicant's failure to attend anger management counselling as he was ordered to do by the Court on 17 September 2015 only compounds the seriousness of the applicant's offending and alleged offending and suggests a disregard of the law on the applicant's part.
The respondent submits that, in the circumstances, too little time has elapsed since the offending and the alleged offending, and that in that short space of time the applicant has not engaged in any rehabilitation, counselling or other therapy to mitigate the risk of his reoffending.
The Tribunal accepts the respondent's submissions. We are satisfied that this factor militates against setting aside the respondent's Decision.
[19]
The age of the person at the time the offences or matters occurred: s 30(1)(c) of the Act
The respondent submitted that the applicant was 37 years of age at the time of the common assault offences and the conduct giving rise to the choking charges, and 38 years of age at the time of the further charges. His wife was 25 years at the time of the first charges. His children were five years or younger at the time of all charges.
The Tribunal is satisfied that age discrepancy between the applicant and his wife, and between the applicant and his children militates against the setting aside the respondent's Decision.
[20]
The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim: s 30(1)(d) of the Act
The respondent submitted that at the time of the relevant offences and conduct:
1. The applicant was 37 years of age at the time of the common assault offences and the conduct giving rise to the choking charges, and 38 years of age at the time of the further charges.
2. The applicant's wife was 25 years at the time of the first charges, is financially and otherwise dependent on the applicant, and this makes her vulnerable.
3. The applicant's children were five years or younger at the time of all charges.
The Tribunal is satisfied that age discrepancy between the applicant and his wife, and between the applicant and his children militates against setting aside the respondent's Decision.
[21]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(1)(e) of the Act
The applicant is 12 years older than his wife and 33 and 35 years older than his children. The Tribunal is satisfied that the difference in age between the applicant and his wife, and the fact that they are married to each other, militates against setting aside the respondent's Decision.
[22]
Whether the person knew, or could reasonably have known, that the victim was a child: s 30(1)(f) of the Act
The respondent submitted that the applicant's wife was not a child but that he knew that his children were children who would be vulnerable to the effects of domestic violence and the risk of psychological and emotional harm.
The Tribunal considers that, as the victim of the common assault offences was not a child, this is a neutral factor in determining whether to set aside or affirm the respondent's Decision. However, the Tribunal considers that it can take into account the fact that the applicant would have known that his children, who were witnesses to the events of the common assault offences and the choking charge, would be vulnerable to the effects of domestic violence and the risk of psychological and emotional harm. The Tribunal can take this matter into account pursuant to s 30(1)(k).
[23]
The person's present age: s 30(1)(g) of the Act
The applicant was 39 years of age at the time of the hearing. The Tribunal is satisfied that his age, being a mature man, militates against setting aside the respondent's Decision.
[24]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred: s 30(1)(h) of the Act
The respondent submits that the evidence establishes a pattern of offending and alleged offending in a domestic setting where the applicant has not attended anger management counselling (as he was ordered to) or any other counselling or intervention to mitigate the risks that he might reoffend. The respondent submits that the Tribunal would be satisfied that the applicant continues to minimize his actions and his culpability for his actions and to blame his wife for his conduct. The respondent submits that the applicant demonstrates little or no insight into the effects of his offending and alleged offending on his wife or their two children.
We consider that there is substance in these submissions, given our observations of the applicant during the course of his cross-examination. The Tribunal is satisfied that this conclusion militates against setting aside the respondent's Decision.
[25]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i) of the Act
The respondent submitted that the Tribunal would not be confident that the applicant would not reoffend, given his propensity to minimize his behavior and his failure to attend anger management counselling. The respondent submits that, in failing to comply with the Court order of 17 September 2015 to undertake anger management counselling, the applicant demonstrates a disregard for the law which is inconsistent with mitigating the risks of reoffending and the development of any insight into his offending necessary to protect against the risk of re-offending.
We consider that there is substance in these submissions. The Tribunal is satisfied that this conclusion militates against setting aside the respondent's Decision.
[26]
Any information given by the applicant in, or in relation to, the application: s 30(1)(j) of the Act
We have summarized the applicant's document and evidence above. The Tribunal is satisfied that the applicant's own evidence militates against setting aside the respondent's Decision.
[27]
Any relevant information in relation to the person that was obtained in accordance with s 36A: s 30(1)(ji) of the Act
This is not a relevant factor in our determination.
[28]
Conclusion
A person whose WWCC is cancelled under s 23 of the Act may apply for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of the decision within 28 days after notice of the decision was given to the person. The respondent cancelled the applicant's WWCC 15 August 2016. He filed his application for administrative review on 8 September 2016. Accordingly, the application for review was filed within the time set out in the Act.
As indicated above, the Tribunal is conducting a review of the decision of the respondent to cancel the applicant's clearance and must make the correct and preferable decision. We are required to take into account the matters referred to in s 30(1) of the Act, and it is also relevant to consider the provisions governing the cancellation of the applicant's clearance.
In reviewing the cancellation decision, the Tribunal must consider whether the applicant poses a risk to the safety of children. The test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].
In determining whether the applicant poses a risk to the safety of children, we have considered each of the s 30(1) factors in turn. Each factor was dealt with above.
The respondent submits that in the circumstances the Tribunal should not consider enabling the applicant to work with children. The respondent submits that the Tribunal will be satisfied that:
1. The applicant does pose a risk to the safety of children.
2. A reasonable parent would not allow his or her child to have direct contact with the applicant unsupervised.
3. It is not in the public interest to grant the applicant a WWCC.
As already indicated, the Tribunal must determine whether the applicant poses a risk to the safety of children in the sense of a risk that is greater than the risk of any adult preying on children, taking into account the matters enumerated in s 30(1) of the Act (see s 23(1)). The term "safety of children" is not defined, but includes the sexual and physical safety of children, and probably also their safety from conduct that is likely to cause psychological or emotional harm: see CHB at [87] and the cases there referred to, namely BVM v Children's Guardian [2016] NSWCATAD 65 at [9]- [15] and [67]; BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30]).
The applicant was asked directly by the Tribunal what he wanted to say about the risk of him working with children. He said that he had never had a child-related problem, and that he had only been abusive of his wife. He said that his children became victims indirectly and that "the facts weren't that bad".
Given the evidence before us, which we have summarised above, and the applicant's own evidence given during the course of cross examination, the Tribunal is satisfied that the applicant poses a risk to the safety of children. We reach this conclusion largely based on the applicant's lack of insight, and his continuation of his position that his wife was the one at fault and who had anger management issues, in circumstances where he struck his wife while she was pregnant and in the vicinity of his two young children. We reject his account of the circumstances of the common assault charges, being inconsistent with the Agreed Facts.
Even if we were satisfied that the applicant did not pose a risk to the safety of children, we would not make an order which had the effect of enabling him to work with children in accordance with the Act as:
1. We are not satisfied 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;
2. We are not satisfied that it is in the public interest to make such an order.
[29]
Orders
The Tribunal orders that:
1. The respondent's decision to cancel the applicant's Working With Children Check clearance is affirmed.
[30]
Endnote
The Tribunal notes that this was a decision in relation to s 9(4) of the Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed), a provision that was analogous with s 18 of the Act. This decision has been cited with approval and applied by the Tribunal in many decisions including AYU, BJB and BFC v Children's Guardian [2014] NSWCATAD 90 and BFX v Children's Guardian [2014] NSWCATAD 115.
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: 10 May 2017