CTF v Children's Guardian

Review of respondent's decision

1. Section 27 of the Act makes provision for administrative review by the Tribunal of decisions of the respondent, including a decision to refuse a Working With Children Check clearance.
2. Subsection 30(1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the respondent may have regard when conducting its risk assessment): 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of 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, (k) any other matters that the Children's Guardian considers necessary.
3. In addition, section 30(1A) of the Act provides: 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.
4. In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children.
5. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
6. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [39], and BKE at [26].
7. To assist in the interpretation of the Act, regard may also be had to the second reading speech for the Bill which became the present Act. Mr Dominello, the then Minister for Citizenship and Communities, on 13 June 2012 stated: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that, to bar a person from working with children, the risk must be significant."
8. The Minister stated further: "While the Bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
9. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Role of the Tribunal

1. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. Administrative Decisions Review Act 1997, s 63.
2. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
3. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 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, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]
4. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
5. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
6. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
7. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
8. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J noted that in determining risk the Tribunal first had to consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless". His Honour explained that even if no positive finding can be made be "[the] court or tribunal is still obliged to consider the question of risk that may be indicated by all the facts, unless it is determined that the allegation is 'groundless'".

Administrative Decisions Review Act 1997

1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: (a) to affirm the decision of the respondent, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside, or (d) to set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal.
2. At any stage of proceedings, the Tribunal may remit the decision to the respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Burden of proof

1. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
2. Although the applicant has no legal burden she does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.
3. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
4. The applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

1. The respondent tendered into evidence the respondent's risk assessment report and documents provided by government departments and agencies, including the NSW Police, the NSW Courts, Corrective Services, and NSW Family and Community Services.
2. The applicant relied on her application and an affidavit, documents relating to her tertiary studies, three affidavits from family and friends, and a report of Ms Caroline Hare, Clinical Psychologist dated 9 January 2017.
3. The applicant, the applicant's son, and Ms Hare gave oral evidence at the hearing and were cross-examined by Counsel for the respondent.
4. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

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

1. The matters that caused the refusal of the applicant's application for a clearance were as follows: 1. A conviction of assault in 1990 when the applicant was 17 years old involving a child victim who was 16 years old; and 2. A charge of murder in 1997 which was subsequently dismissed. The applicant was convicted of the offences of use offensive instrument to assault with intent to rob, and assault with intent to rob while armed with a dangerous weapon.

(1) 1990 assault

1. The police facts indicate that in 1990 when aged 17 years, the applicant attended an RSL club. She approached the 16 year old victim and had a brief conversation with her. The applicant punched the victim several times to the face causing the victim to sustain a black eye.
2. The applicant pleaded guilty to the offence of assault. She was convicted and ordered to enter into a 12 month bond to be of good behaviour and not to attend hotels, clubs or other licenced premises at any time until 18 years of age.
3. The Tribunal notes that at the time of her offending, the applicant was a juvenile and of a similar age to her victim. The offence, although not trivial, is of lesser severity than other types of assault or abuse of child victims.

(2) 1997 murder charge and related offences

1. The applicant and her male co-offender drove the co-offender's vehicle to a liquor store for the purposes of carrying out an armed robbery. The co-offender, who had put on a black balaclava, surgical gloves and armed himself with a loaded revolver, entered the liquor store while the applicant remained in the vehicle. The co-offender ordered the two employees of the store to the ground and pointed the loaded revolver in their direction. The co-offender instructed the employees to fill up a bag with cash. A struggle broke out between the co-offender and one of the employees during which two shots were fired. The employee managed to take the revolver off the co-offender who was being restrained by customers coming to the aid of the employee. At this time, the applicant entered the store and attempted (unsuccessfully) to pull away the customers restraining her co-offender.
2. The applicant left the store and returned a short time later driving the vehicle. She proceeded to drive the vehicle into the store, driving at her co-offender and the customers, narrowly missing a number of people. Her actions enabled her co-offender to temporarily break free of the customers. The co-offender attempted to get into the vehicle driven by the applicant, threatening the customers attempting to detain him with a brick. While this was happening, the applicant remained in the vehicle. The co-offender ran out of the store and was again restrained by customers until police arrived. The vehicle's keys were removed from the ignition by customers, who also surrounded the vehicle thereby preventing the applicant's escape.
3. The store employee later died in hospital as a result of the gunshot wound sustained during the attempted armed robbery. The applicant was arrested and charged with various offences, including murder. Shortly before trial a plea was offered and accepted by the Crown to the offences of assault with intent to rob while armed with a dangerous weapon, and use offensive weapon to prevent apprehension.
4. The applicant was sentenced to imprisonment for a period of six years (for the offence of assault with intent to rob while armed with a dangerous weapon) and two years (for the offence of use offensive weapon to prevent apprehension).
5. The applicant was also sentenced at the same time for a similar offence which occurred approximately two months prior to the trigger matter; namely, assault with intent to rob being armed with an offensive instrument. The effect of the sentences for each of the offences was that the applicant was sentenced to imprisonment for a total of six years, with a non-parole period of two years.
6. There was insufficient evidence before the Tribunal to make a finding that the applicant committed an act of murder. In this regard, there were no witness statements or other sources of primary evidence before the Tribunal to enable such a finding to be made. However, the applicant's actions and role in the events surrounding the attempted armed robbery were significant. The matters were objectively very serious, involving a planned and premeditated robbery involving the use of weapon, and resulting in the death of an innocent person. Although the applicant was not the person who discharged the gun, she was intimately involved in the crime and took active steps to protect her co-offender. In doing so, she endangered the lives of innocent people and displayed a callous disregard for their safety and welfare. The matters are very serious as reflected in the sentences of imprisonment imposed by the sentencing court.

(b)The period of time since the matter occurred and the conduct of the applicant since that time

1. The matters occurred in 1990 and 1997, approximately 27 and 20 years ago respectively. Whilst a significant passage of time has passed since those matters occurred, the applicant has committed further criminal offences which are detailed in subsequent paragraphs of these Reasons.

(c)The age of the applicant at the time the matter occurred

1. At the time of the 1990 offending the applicant was 17 years old. At the time of the 1997 offending, the applicant was 24 years old.

(d)The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

1. At the time of the 1990 offending, the victim was 16 years old. In respect of the 1997 offending, the victims (including the deceased) were adults.

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

1. In relation to the 1990 offending, there was a one-year age difference between the applicant and the victim. In relation to the 1997 offending, the victim's ages are not known but the evidence indicates that the victims were adults.
2. In relation to the 1990 offending, it appears that the applicant and the victim were acquainted with each other. In relation to the 1997 offending, the deceased victim was working in the liquor store at the time of the offending and was not previously known to the applicant. The other victims were customers of the store and were not known to the applicant.

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

1. The victim of the applicant's 1990 offending was a child. The Tribunal finds that the applicant could have reasonably known that fact.
2. The victims of the applicant's 1997 offending were not children.

(g)The applicant's present age

1. At the time of the Tribunal hearing, the applicant was 43 years of age.

(h)The seriousness of the applicant's total criminal record and the conduct of the applicant since the matter occurred

1. The applicant has an extensive criminal history commencing as a juvenile in 1988 and continuing through until 2015, as follows: 1988 - Stealing. The applicant was ordered to enter into a recognisance to be of good behaviour for 6 months. 1990 - First trigger matter (see above for details) 1993 - Break, enter & steal to commit felony; Stealing. The applicant was sentenced to 150 hours' community service and ordered to enter into a recognizance of 18 months to be of good behaviour and to pay compensation. 1994 - Breach of community service order. The applicant was ordered to perform 120 hours of community service 1997 (August) - Use offensive weapon to prevent lawful detention; Assault with intent to rob armed with offensive weapon; Armed with intent to commit indictable offence. The applicant and a co-offender, with full face balaclavas, gloves and padded clothing, entered a TAB store. The co-offender carried what appeared to be a handgun, threatened customers and together with the applicant demanded that the customers get down on the floor. The applicant and the co-offender were prevented from accessing an enclosed area where cash was held. The co-offender was heard to say words to the effect: "We ought to pop one of these cunts off"; referring to the customers lying on the floor. The applicant said words to the effect: "No fuck that, fuck that, let's go". The applicant pleaded guilty to the offence of assault with intent to rob being armed with an offensive instrument. The offence occurred approximately two months before the second trigger matter, and the applicant was sentenced to both matters at the same time. The applicant was sentenced to four years' imprisonment with an additional term of two years, and a non-parole of two years. 1997 (October) - Second trigger matter (see above for details) 1998 - Possess prohibited drug and enter enclosed land without lawful excuse. The applicant was fined $200 for each offence. 2002 - Possess prohibited drug. The applicant was sentenced to imprisonment for one day. 2004 - Shoplifting. The applicant was sentenced to a good behaviour bond for 12 months. 2012 - Enter vehicle without consent of owner/occupier; Assault officer in execution of duty; Larceny. The police facts indicate that the applicant entered a vehicle of a person unknown to her, and without consent, and took from the vehicle a DVD player belonging to the vehicle's owner. The applicant, who was apprehended by police, lunged at the attending police officer with her upper body, and upon being restrained by police, lashed out at the officer with both legs. The applicant was fined $375 and ordered to enter into a good behaviour bond for 18 months and to complete a forum sentencing plan. 2014 - Assault police officer in execution of duty occasioning actual bodily harm. The police facts indicate that the applicant was observed in a public place to stumble into passers-by and lose balance, and was talking aloud and was in a dishevelled state. Upon questioning by police, the applicant was noted to be intoxicated and unable to care for herself. She was conveyed to the police station where her responsible person (her son, Mr A) was contacted and advised to collect her. While being held in a dock at the station, the applicant was involved in a struggle, during which she scratched the chin of the attending police sergeant, causing bleeding. The applicant lashed out and took hold of the sergeant's hair bun, pulling it down with such force that it caused the sergeant to lose balance and fall forward. The sergeant sustained red marks and soreness to her head. The applicant was fined $600 and ordered to enter into a good behaviour bond for 12 months under the supervision of the NSW Probation Service.
2. The applicant served sentences of imprisonment between 1998 and 2004. Between 1999 and 2000, she received 15 charges while in prison for breaches of prison rules.
3. The applicant has also been subject to good behaviour bonds and parole orders, during which she has incurred breaches. Upon release from prison in November 2001, the applicant breached her parole conditions (including for failing to seek assistance in controlling her abuse of drugs), and her parole was subsequently revoked. She was finally released from prison in about 2004.
4. Since the 2014 offending (for which she was sentenced in 2015), the applicant has not been convicted of any further criminal offences. Her last period of supervision by Corrective Services' Community Corrections ended in February 2016.

(i)The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

1. The applicant relied on the oral and written evidence of Ms Caroline Hare, Forensic Psychologist. In addition to her clinical interview, Ms Hare utilised a number of tools to assess the applicant's risk and reviewed the majority of the respondent's documents. At the time of her assessment, Ms Hare did not have access to the material produced by the Department of Family and Community Services [1] . That material contains information about a number of child protection matters concerning the applicant and her care of her children, which are detailed in subsequent paragraphs of these Reasons. However, Ms Hare was aware from other material produced by the Respondent and information provided by the applicant that the applicant had neglected and exposed her own children to harm.
2. In her written report, Ms Hare stated: I offer the hypothesis that (the applicant's) engagement in past violence has often occurred within the context of wanting to achieve a goal and being prohibited from doing so, and thus has resorted to using violence. Her willingness to use violence was reinforced by her father's role modelling during her development, and the partners and peers she maintained during a considerable part of her adulthood. Additionally her misuse of substances has lessened her self-control and reduced her consequential thinking, such that her prior violent offending appears to have been committed with substances acting either as an additional motivator for her violent conduct, and/or disinhibitor for her aggressive acting out. (The applicant) was stuck in a pattern of substance misuse, reduced self-esteem, unhealthy relationships, emotional instability, and unsteady psychological functioning for an extended period, and within that context certainly she presented an increased risk of violent re-offending. Over the past few years however, (the applicant) has successfully made a number of significant changes to her life. Most notably, she has achieved sobriety, developed supportive and positive friendships, distanced herself from prior antisocial associates, avoided unhealthy romantic relationships, improved her familial relationships, engaged in study, gained her driving licence, and more recently (one month prior to our meeting) moved into her own accommodation. Together these changes have assisted her to achieve independence and forge a positive sense of self, reducing her likelihood of relapsing into past unhelpful patterns, including substance misuse and unhealthy relationships, which were significant factors in her past use of violence. (The applicant) has positive goals for her future and solid plans how to achieve these. She does not endorse any current markers of clinical or risk management items considered in the literature to increase risk of future violence, and I presently assess her risk of engaging in violence as low."
3. Ms Hare reports that any increase in the applicant's risk would be partnered with observable warning signs, including the applicant's disengagement with her current routines and support systems, engagement in a dysfunctional romantic union, and relapse into substances misuse; potentially leading to a reduction in her self-esteem and emotional instability, which could in the presence of intoxication increase her likelihood of engaging in violence. Ms Hare said that whilst psychological treatment would be beneficial for the applicant it would not, in her view, be necessary (to reduce the risk).
4. In cross-examination, Ms Hare accepted that after a period of abstinence the applicant has experienced relapse. However, Ms Hare said that the applicant had not relapsed completely; that relapses are not unusual; that the applicant had learnt from the experience and now has more protective factors and a more integrated support network in place than she did previously.
5. In cross examination, Ms Hare conceded that it would be "concerning" if the applicant was not engaging with her current supports, and it would "certainly be a testing time" and of heightened risk in the event of a relationship breakdown with a future partner.

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

1. The applicant provided documentary evidence in support of her application, including an affidavit, evidence of the education and qualifications she has attained, and affidavits of her son (Mr A), a former support worker and friend to whom she is related through Aboriginal kinship (Ms S), and a friend and a leader within the church the applicant attends (Ms L). The applicant gave evidence and was cross-examined by Counsel for the respondent.
2. The applicant experienced a sad and troubled childhood. She was born to Aboriginal parent/s and at 6 weeks of age, she was placed with foster/adoptive parents, Mr and Mrs J, whom the applicant identifies as her parents. The applicant was not aware that they were not her biological parents until the age of 10. Around that time, her parents separated after an unhappy marriage characterised by verbal and physical discord. At the age of 11, the applicant was placed in a series of foster homes, and by the age of 14 she had fallen pregnant. She spent a period of time staying in motel accommodation funded by her mother, before moving to accommodation for teenage mothers run by nuns. The applicant, who was still a child herself, subsequently moved into public housing with her then 6-month old baby.
3. The applicant started using cannabis at the age of 13, alcohol at the age of 15, and heroin at the age of 17. She was addicted to heroin by the age of 19, and was using heroin regularly until the age of about 34.
4. The applicant stated that she cannot recall many details of the 1990 offence, but remembers that she was angry with the victim due to a situation involving her son. The applicant believes that they had an argument and she (the applicant) punched the victim in the face.
5. The applicant stated that 1997 offending (both the August 1997 and the October 1997 attempted robberies) occurred while addicted to heroin and in an abusive relationship with her co-offender. Her co-offender was also addicted to heroin and was considerably older than her. The applicant stated that the man was aggressive, intimidating and held a lot of influence over her because she was young, vulnerable and lacking in sufficient support at the time. The applicant stated that she was so caught up with her heroin addiction that she did not realise the seriousness of her actions or the dangerousness of the people with whom she was associating. She states that the impact on the victims, particularly the victim who died, would have been terrible and would have had a devastating impact on their families and friends.
6. The applicant participated in various drug rehabilitation programs starting from the age of about 24, including residential programs and the methadone program. Her last rehabilitation program was at a Christian rehabilitation centre which she entered upon her release on parole in 2004 and which she attended on and off until about 2006. She discharged herself from the program on several occasions and relapsed into heroin use following contact with her partner at the time who was a drug user and involved in crime. During the period of her rehabilitation, the applicant attended the church associated with the program. While participating in the program, the applicant ceased her heroin use and remained abstinent from drugs until 2011.
7. In 2011 the applicant relapsed into drug use, and recommenced using heroin. At the time she was in a relationship with a man who used drugs and was involved in crime, including the offences with which she was convicted in 2012. The applicant stated that when the man was using drugs it was hard for her to resist because of the level of his influence and her low self-worth at the time. The applicant stated that she had become isolated from her family and friends and she felt dependent on her partner. She said that on the day of the offence she and her partner had bought pills off the street and had drunk alcohol. She is aware that she and her partner broke into the victim's car and stole things from it. However, she is unable to remember many details due to her level of intoxication.
8. After participating in forum sentencing (which included the victim of her 2012 offences), the applicant attended counselling for her drug and alcohol use and her emotional problems. The applicant found the counselling to be helpful and helped her get back on track; "learning to make better choices and consider the consequence of relapse". [2]
9. After the 2012 offences, the applicant continued her relationship with the man before it broke down some time later. Approximately two weeks after the end of that relationship, the applicant became involved with another man. That relationship also ended, and the applicant became depressed and upset with herself. On the day of the 2014 offence, she took a number of Temazipam tablets (which had been prescribed for her depression) and drank a lot of alcohol. According to the applicant, she "became totally out of it". As a result, she has only a vague memory of the details of her 2014 offending.
10. The applicant stated that at the time of the 2014 offending, she had made improvements to her situation; she was not using drugs, she was finishing her TAFE course and was doing some volunteer work. She stated, however, that she did not have a good social network at the time and was emotionally unstable.
11. The applicant said that as part of the good behaviour bond she received following her conviction for the 2014 offending, she attended drug and alcohol counselling. She stated that "both the episode itself and the counselling helped me realise that being in unhealthy, dysfunctional relationships was one of the main things that could tip me back into using drugs and committing crimes. That episode helped me to strengthen my resolve to address the underlying causes of my problems and make the changes that I need to make, to avoid future relapses" [3] .
12. The applicant states that since her 2014 offending she has stopped using drugs and now largely abstains from alcohol; consuming only one or two drinks on a social occasion. She states that she now actively avoids the type of men with whom she has been previously involved.
13. The applicant states that in the last two years her involvement in the church (which she has been attending for the last four years) has increased. She attends two services on a Sunday, where she volunteers as an usher and also participates in women's and bible studies groups. She has become close friends with four women in the church community (including Ms L), and her relationship with her son, which has been challenged as a result of her drug use and harmful relationships, has now improved. She sees her son and her son's wife a few times a week, and they often attend church together.
14. The applicant does not have a close relationship with her daughter, Ms J, and suspects that her daughter "has a lot of pain and feelings of abandonment, and fear about things going bad with me again in the future" [4] . The applicant's relationship with her mother has improved since late 2015 and they now have regular contact.
15. In 2014, the applicant completed a Certificate IV in Drug and Alcohol Mental Health. In December 2015, she completed a Diploma in Community Services. In 2016 the applicant commenced a Certificate III in Business Administration which she has not completed due to failing certain modules. The applicant has been doing some casual cleaning work since December 2016. More recently, she started studying for a one-year Diploma of Ministry and Leadership which she attends three days a week.
16. In December 2016, the applicant moved into rental accommodation and now lives on her own. During the previous eight years, the applicant lived with a woman she met through the church associated with the Christian drug rehabilitation program attended by the applicant from 2004 to 2006.
17. The applicant seeks a Working With Children Check clearance because she wishes to work and volunteer in the community services sector, and in particular, to work with women recovering from domestic violence and drug and alcohol abuse. While not intending to work with children specifically, the applicant's roles may involve incidental contact with children.
18. The applicant's son, Mr A, is 27 years old. In his affidavit, he referred to living in the same accommodation as his mother (in the home of his mother's friend) for a period of time including at the time his mother committed the 2012 offences. He states that it upset him when his mother got involved with men that were bad for her, and in the case of the man in 2012, "she was sneaking around and hiding it from everyone".
19. Mr A states that his mother's relapses in 2012 and 2014 made it hard to trust her and have a good relationship with her. However, he is of the view that after the offence in 2014 the applicant started to get her life back on track. Mr A states that it is very important to his mother that he and his wife now trust her and support her, and his mother does not wish to jeopardise their relationship. Mr A states that his mother occasionally babysits children of her friends or spends time with children along with their parents, and previously she helped to teach Sunday school to children while attending her former church.
20. Ms S has known the applicant for about 25 years, initially in the context of Ms S' work as a support worker and through the subsequent discovery of their relationship through Aboriginal kinship. Ms S also spent periods of time caring for Mr A when he was a child. Ms S has worked for several decades for organisations that work with children and families dealing with child protection issues, and currently Ms S teaches courses in family well-being and violence prevention. Ms S states that the applicant had one of the most adverse childhoods of anyone she can think of, and has suffered a lot of trauma in her adult life. Ms S sees the applicant on a monthly basis and they have regular telephone contact. Ms S has noted an improvement in her relationship with the applicant in the last two years, and in particular, the applicant's ability to maintain focus, listen and respond.
21. Ms L has known the applicant for about two years, having met at the church they both attend. Ms L is the leader of the hosting team to which the applicant belongs and has also become close friends with the applicant. They see each other once or twice per week and have telephone contact several times per week. Ms L has done a 'boundary course' with the applicant in recent times, aimed at assisting people in having better boundaries and recognising who is safe and who is not.

Applicant's submissions

1. In oral and written submissions, Counsel for the applicant pointed to the fact that all of the applicant's offences were committed when the applicant was in relationships with violent and drug addicted men, (and for the most part committed in company with her then male partner), and in the context of a drug and alcohol addiction. Counsel for the applicant pointed to the applicant's current situation; - her successful completion of her most recent good behaviour bond, her abstinence from illicit drugs, her participation in counselling, reconnection with her family, strong connection with her church community, successful completion of studies, causal employment and independent accommodation. Having regard also to Ms Hare's expert opinions, Counsel for the applicant submitted that the applicant does not pose a risk to the safety of children and should be granted a Working With Children Check clearance.
2. Further, Counsel for the applicant submitted that a reasonable person knowing of the applicant's criminal history and being aware of all the information that the Tribunal now has before it, would allow his or her child to have direct unsupervised contact with the applicant. In addition, Counsel submitted that it is in the public interest that the applicant be granted a Working With Children Check clearance so that the applicant can continue the positive life she has built for herself over the last 2 to 3 years, and can contribute and give back to the community in volunteering to support women who are escaping from domestic violence.

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

1. The respondent tendered records produced by the Department of Family and Community Services ("the Department") relevant to the period 1991 to 2012 [5] . Those records relate to the applicant's children, Child A and Child J, and the child protection notifications and incidents which led to Departmental involvement during their childhood.
2. Child A was born in 1989 and is now aged 27. He was in the care of the applicant for the early stages of his childhood, however, he spent lengthy periods of time with the applicant's foster mother, Mrs J, during this period. Child J was born in 1996 and is now aged 21.
3. At the time the applicant committed the 1997 offences and was imprisoned, Child A (aged 8 years) entered into the full-time care of Mrs J, and Child J (aged 18 months) entered into the care of her paternal grandparents.
4. The records produced by the Department comprise 166 pages, and include numerous child protection notifications in relation to the applicant's care of her children. Those matters are summarised as follows:

• October 1991 - Child A had suspected rope burn. Matter not confirmed.
• March 1994 - The applicant was intoxicated while staying with Child A at a women's refuge. The applicant allegedly assaulted a resident and caused damage to property. Child A was removed from the care of the applicant and placed with Mrs J for approximately one month.
• July 1994 - The applicant, who was at licenced premises with Child A, was intoxicated and unable to provide adequate care to Child A. The applicant assaulted a female, resulting in police involvement. Child A was removed and placed with Mrs J. Matter confirmed.
• October 1994 - Child A was subjected to emotional abuse (bullying, destroying Child A's toys and books) by Mr G, the applicant's then partner. Child A's pre-school confirms bruising to Child A's body. Matter confirmed.
• October 1994 - Significant bruising to Child A caused by Mr G. Confirmed by the applicant who indicated it had been ongoing for the last couple of years. Matter confirmed.
• February 1996 - Child A observed to be spending a lot of time on the roof of the home, and had entered neighbour's premises via a skylight. Child A considered to be in physical danger. Matter confirmed.
• October 1996 - Child A observed the applicant's then partner (Mr W) with his hands around the applicant's throat while the applicant was holding Child J in her arms. Child A tried to use neighbour's phone to obtain help. Child A was scared and wanted the fighting to stop. The applicant denied that Child A had witnessed the incident, claiming Child A was in the bath at the time. Matter confirmed.
• July 1997 -Child A presented at school very angry and depressed. A burn mark was observed on his hand which Child A claimed occurred when his 15 month old sister lit a match. Small bruises and grazes were observed on Child A's chest, which Child A claimed to be inflicted by his four year cousin. Child A said that when Mr W lived with them, he used to hit him, his mother and the dog.
• July - August 1997 - Child A smacked by Applicant with a curtain rod. The applicant confirmed that this occurred, but denied causing Child A's bruising.
• Allegation that two disabled men had inappropriately touched Child A and another child. Both children denied this occurring.
• Complaints about Child A's behaviour at school, including verbal and physical abuse of other children. Concerns about Child A spending time on the roof of the home. Concerns about Applicant's relationship with new partner, Mr F, who was living with the applicant and her children.
• The applicant agreed Child A had been exposed to domestic violence when she lived with Mr W. The applicant said her new boyfriend of 3 months, Mr F, had spent 10 years in prison. She said she hadn't known Mr F very long and wonders whether he is safe. She said she worries about him sexually assaulting her children as she worries about her children generally being sexually assaulted.

1. In 1997 the applicant was arrested for her role in the attempted armed robberies in August and October 1997 and subsequently spent a number of years in prison. Child A was briefly in the custody of his biological father, Mr N, before he was declared a ward of the State in May 2000. He was placed with Mrs J under a kinship placement. Child J was cared for by her paternal grandparents under an informal arrangement.
2. Departmental records indicate that in 2010, in the context of concerns about Child J's behaviours and tendency to run away from home, Child J was taken by her grandmother to the applicant's home. A verbal and physical incident occurred between Child J and the applicant. Although the applicant is alleged to have used physical force to restrain Child J, no criminal charges were laid as it appeared that the applicant used physical force in the context of legal chastisement.
3. During cross-examination, Counsel for the respondent commenced questioning the applicant about the child protection notifications and incidents outlined in above paragraphs. At the outset, the applicant said that her son had experienced a lot of abuse and neglect, and further stated that she had abused and neglected him. Following further questions in relation to specific incident/s, the applicant became extremely distressed, visibly upset and appeared physically unable to respond to the questions being asked.
4. The Tribunal adjourned briefly, and upon resumption of the hearing, Counsel for the applicant made an application that the applicant not be compelled to answer questions relating to the specific child protection matters concerning her children. Counsel for the applicant submitted that the applicant had a reasonable excuse; in that she was significantly emotionally and physically incapable of answering the questions, and should not be required to do so. Furthermore, Counsel for the applicant indicated that the documentary evidence pertaining to the abuse and neglect of the applicant's children was not challenged and would not be the subject of any re-examination or submissions by the applicant.
5. Counsel for the respondent opposed the application, and submitted that the applicant should be compelled to answer specific questions about the matters arising from the documentary material as they were matters considered vital by the respondent.
6. Section 38 of the Civil and Administrative Tribunal Act is referred to earlier in these Reasons. The Tribunal may determine its own procedure in relation to any matter for which the Act or the procedural rules do not otherwise make provision. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
7. Section 46(d) of the Act provides that the Tribunal may compel any witness to answer a question which the Tribunal considers to be relevant in any proceedings. However, the Tribunal may not compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.

Respondent's submissions

1. The respondent opposes the application. Whilst accepting that the applicant had made great strides in overcoming a difficult childhood, the respondent pointed to the severity of the applicant's past conduct and its victims. The respondent also referred to the applicant's harm to her own children, submitting that on each occasion described in the Department's records the applicant failed to put her children's interests before her own needs and failed to care for their welfare.
2. Counsel for the respondent submitted that two and half years is an insufficient period of time to negate the applicant's risk, and is well within the pattern of relapse experienced by the applicant in the past.
3. In addition, Counsel for the respondent submitted that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised, and refuted the applicant's contention that Mr A could be viewed as a reasonable person. Counsel for the Respondent likewise submitted that applicant has not provided sufficient evidence that it would not be in the public interest to make an order granting her a Working With Children Check clearance.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

1. See the relevant paragraphs in the Conclusion below.

CONCLUSION

1. In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the applicant a Working With Children Check clearance, and to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law.
2. There is no presumption that the applicant poses a risk to the safety of children by reason of her offending, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
3. It is acknowledged that the applicant's trigger matters occurred 20 and 27 years ago respectively and therefore a significant passage of time has elapsed since their occurrence. The applicant received punishment for her crimes and completed her sentences. The Tribunal also recognises that the more seriousness of her trigger matters did not involve a child victim.
4. The Tribunal found the applicant to be frank and forthcoming. She accepts responsibility for her past actions and does not seek to minimise her conduct and the role that she played in the offences. She has engaged in counselling to address her use of drugs and alcohol and her violent behaviour. Presently, she is abstinent of substances and largely abstains from alcohol. She displays insight into her vulnerabilities and her past poor choices of partners. The applicant has completed courses of study, improved her job prospects, and has sourced independent accommodation. She receives and values the support provided by family members, friends and her church community. The Tribunal finds that the applicant is genuine in her wish to change, and to lead a healthier and more productive life. The Tribunal also finds that the applicant is genuinely motivated to help women exposed to domestic violence and to assist those with drug and alcohol issues in their recovery journey. Indeed, the Tribunal finds that the applicant has much to offer in this regard.
5. However, the Tribunal finds that the applicant's trigger matters, particularly the 1997 offending, involved serious and deliberate acts of violence which resulted in the death of an innocent person. The fact that lengthy sentences of imprisonment were imposed is indicative of the severity of the applicant's conduct and her role in the crimes.
6. In addition, it cannot be said that the applicant's trigger matters were isolated acts of violence. Rather, the applicant was involved in an earlier attempted armed robbery. Further criminal offending occurred in subsequent years following her release from prison, and although the applicant's later offences were of lesser severity than the second trigger matter, they were committed in the context of alcohol and substance use and involved violence.
7. Furthermore, the Tribunal finds that the applicant's offending is still recent, with her most recent offences occurring in 2014. The applicant's supervision period ended in February 2016; which was only 13 months prior to the date of the Tribunal hearing. The applicant has therefore not yet experienced an extended period of time without supervision or formal restrictions in place. Furthermore, whilst the applicant's move to independent accommodation is an important step in her journey, she has experienced living on her own for a short period of time only and may be considered vulnerable during this transition phase.
8. The Tribunal has regard to the fact that the applicant has had previous periods of abstinence before relapsing into drug use. The Tribunal notes the opinion expressed by Ms Hare about the applicant's relapses. However, it is of relevance in this case that the applicant's relapses in 2012 and 2014 led to the commission of criminal offences involving violence, and in this sense the nexus between the applicant's relapse into substance use and violent offending is established. Furthermore, the period of time between the applicant's relapses (and subsequent offending) have varied, with the most recent period being only a matter of two years. It has been less than three years since the applicant's most recent relapse into substance misuse and criminal conduct, and in the Tribunal's view, it is too a soon to be comfortably satisfied that that there is not a real and appreciable risk of violent re-offending.
9. The Tribunal takes into account the evidence of the child protection notifications and incidents, which were conceded by the applicant. Those events coincide with the applicant's heavy heroin use and trigger offending. That both of her children were not in her care for most of their childhoods is indicative of the applicant's inability to provide them with appropriate care and protection. Whilst the majority of the concerns relate to incidents arising more than 20 years ago, there is limited evidence about the applicant's more recent conduct with children to sufficiently address her past actions. Although the applicant has engaged in study and has an understanding of child protection generally, she has only a recent employment history and limited experience in a workplace environment.
10. There is no doubt that the applicant's son is proud of the applicant's progress and he has expressed his trust and confidence in her. Ms S and Ms L also speak highly of the applicant and the changes she has made to her life. They each provide important support and encouragement to the applicant, and it is apparent the applicant values and appreciates those relationships.
11. However, the Tribunal notes that both Mr A and Ms S were involved in the applicant's life prior to and during the period of her more recent offending. The applicant has also been involved in a church community for a fairly lengthy period of time, and had been engaged in studies around the time of her relapse. Those supports and structures alone were insufficient to prevent the applicant's relapse into substances and her poor relationship choices.
12. The Tribunal also notes the important qualification to Ms Hare's opinion (that the risk of the applicant engaging in violence is low), namely, that if the applicant's current support systems are not in place and/or if the applicant were to experience a breakdown in a relationship, the risk would increase.
13. The Tribunal acknowledges that the applicant has been assessed by Ms Hare as not representing a risk of harm to children. However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children. The Tribunal accepts that if the applicant is granted a clearance she may work with any children of any age. No conditions may be imposed upon the grant of a clearance. Whilst the applicant has indicated she does not propose to work or volunteer with children exclusively, this is not necessarily material to the Tribunal's determination.
14. The safety, welfare and well-being of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. The applicant's trigger matters were serious and involved violence. The applicant has committed further acts of violence since that time. Whilst children were not victims of the applicant's most serious trigger offending, it is clear that children can be indirect victims of violence. If the applicant were to re-offend the physical and psychological harm to a child victim may be significant.
15. Taking into all of the material before it, the Tribunal could not, at the present time, be satisfied that there is not a real and appreciable risk of relapse into drug use and that there is not a real and appreciable risk of violent offending. Therefore, on the balance of probabilities and taking into the seriousness and gravity of the applicant's offending, the Tribunal finds that the applicant poses a risk to the safety of children.
16. Furthermore, in light of the seriousness of the applicant's trigger offending and having regard to the recency of the applicant's relapse into alcohol and substance misuse and criminal offending, the Tribunal could not be satisfied that 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 child-related work. For the same reasons, the Tribunal is not satisfied that it is in the public interest to make an order enabling the applicant to be granted a Working With Children Check clearance.
17. Finally, the Tribunal recognises the challenges faced by the applicant as she has sought to make changes to her life. She is to be commended for embarking on a path of recovery and rehabilitation, and it is hoped that she will continue to make positive lifestyle choices. The Tribunal's decision on this occasion to affirm the respondent's decision to refuse a Working With Children Check clearance does not necessarily mean that the applicant will fail to obtain a clearance in the event she makes a further application at some time in the future.

ORDERS 1. The decision of the Children's Guardian dated 23 August 2016 to refuse to grant the applicant a Working With Children Check clearance is affirmed. 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited.

1. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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

Endnotes

1. Exhibit R3
2. Affidavit of applicant, 30 January 2017, paragraph 24
3. Affidavit of applicant, 30 January 2017, paragraph 29
4. Ibid, paragraph 39
5. Exhibit R3 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: 14 June 2017