The applicant, referred to as CVE, is a 37 year old woman, who has a Bachelor of Social Work and is currently studying for a Certificate IV in Business. She is the mother of two children aged 12 years old and 9 years old and has been with her current partner for approximately six years.
The applicant applied for a Working With Children Check (WWCC) clearance on 25 November 2015. The respondent informed the applicant by letter dated 17 May 2016 that it was putting her on notice they had identified information which required a risk assessment due to proceedings having been commenced against the applicant for offences as set out in Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).
On 21 October 2016, the respondent informed the applicant it had decided to refuse to grant her a WWCC clearance because the respondent was satisfied the applicant posed a risk to children
"due to [CVE's] seventeen (17) year history of violent (sic) which has resulted in serious injuries to the victims; the seriousness and recentness of these offences; the totality of [CVE's] criminal history; the recentness of [CVE's] history of alcohol misuse and violent impulsivity which increases the likelihood of repetition of such behaviour, the Children's Guardian is satisfied that [CVE] poses a risk to the safety of children".
On 31 October 2016, the applicant lodged with the Tribunal an application for administrative review of the respondent's decision under section 27 of the Act. The grounds of the application are that the applicant does not pose a risk to children.
The application was heard by the Tribunal (being Senior Member S Roberts and General Member E Hayes) on 8 May 2017 and reasons were published on 20 June 2017 in the decision CVE v Children's Guardian [2017] NSWCATAD 197 (20 June 2017). The Tribunal set aside the decision of the Children's Guardian to refuse to grant the applicant WWCC clearance and in substitution of that decision, the decision was made to grant the applicant a WWCC clearance.
The respondent appealed the Tribunal's decision to the Supreme Court. The issue on appeal was whether the Tribunal erred in law by failing to make reference to or make a determination under section 30(1A) of the Act. Justice Walton in the published decision Children's Guardian v CVE [2017] NSWSC 1342 found there was an error of law in the original Tribunal decision as "there was no expression as to the Tribunal's satisfaction as to the matters referred to in s 30(1A)(a) and (b)" of the Act (at [24]). His Honour ordered that the decision of the Tribunal on 20 June 2017 be set aside and the proceedings remitted to the Tribunal to be determined according to the law.
The Tribunal (constituted again by Senior Member S Roberts and General Member E Hayes) reheard the matter on 21 November 2017. The parties relied upon the evidence heard by the Tribunal on 8 May 2017 and the written and oral submissions made in those proceedings. The respondent also relied upon some additional documents referred to below in paragraph 14(g) (which included a transcript of the proceedings heard by the Tribunal in CVE v Children's Guardian on 8 May 2017) and additional written submissions. Both Counsel for the applicant and for the respondent made further oral submissions on 21 November 2017 in respect of the application of section 30(1A)(a) and (b) of the Act to the evidence heard by the Tribunal on 8 May 2017.
The Tribunal sets out below its full reasons for decision in this matter. The parts of these reasons for decision that do not relate to the application of section 30(1A)(a) and (b) to the evidence are repetitive of the Tribunal's reasons for decision published on 20 June 2017.
The issue to be decided by the Tribunal pursuant to section 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") is what is the correct and preferable decision having regard to the material before the Tribunal in relation to the granting of a WWCC clearance in relation to the applicant.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal.
[2]
The Evidence
The applicant relied upon the following material:
1. Administrative Review Application Form filed on 31 October 2016 (Exhibit A1);
2. A facsimile dated 20 February 2017 and Notice of Representation by a Legal Practitioner (Exhibit A2);
3. A Psychological Risk Assessment Report dated 25 January 2017 by Dr Emma Collins, Clinical and Forensic Psychologist (Exhibit A3) and
4. An Addendum to Psychological Risk Assessment Report dated 9 February 2017 by Dr Emma Collins, Clinical and Forensic Psychologist (Exhibit A4).
At the hearing on 8 May 2017, the applicant gave oral evidence-in-chief and was cross-examined by Counsel for the respondent. Dr Emma Collins gave oral evidence-in-chief and was cross-examined by Counsel for the respondent.
The applicant also relied upon an Outline of the Applicant's Submissions filed on 4 May 2017. Counsel for the applicant made oral submissions to the Tribunal on 8 May 2017 and 21 November 2017.
The respondent tendered into evidence the following material:
1. Documents filed by the Respondent pursuant to s. 58 of the Administrative Decisions Review Act 1997 Volume 1 filed with the Tribunal on 9 December 2016 (Exhibit R1);
2. Documents filed by the Respondent pursuant to s. 58 of the Administrative Decisions Review Act 1997 Volume 2 filed with the Tribunal on 9 December 2016 (Exhibit R2);
3. Further Documents filed by the Respondent Volume 1 filed with the Tribunal on 20 March 2017 (Exhibit R3);
4. Further Documents filed by the Respondent Volume 2 filed with the Tribunal on 20 March 2017 (Exhibit R4);
5. Additional Document filed by the Respondent filed with the Tribunal on 13 April 2017 (Exhibit R5);
6. A letter from the Crown Solicitor's Office dated 14 March 2017 attaching documents produced under a summons to CVE's psychologist (Exhibit R6); and
7. Respondent's documents filed with the Tribunal on 17 October 2017 (Exhibit R7).
The respondent also relied upon the Respondent's Written Outline of Submissions filed on 21 April 2017 and the Respondent's Further Submissions filed on 7 November 2017. Counsel for the respondent made oral submissions to the Tribunal on 8 May 2017 and 21 November 2017.
[3]
The Legislative Scheme
The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states:
The object of this Act is to protect children:
1. by not permitting certain persons to engage in child-related work; and
2. by requiring persons engaged in child related work to having working with children check clearances.
Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person who is refused a WWCC clearance but to eliminate possible risks to the safety of children.
"Children" is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word "child" has the same meaning.
The term "child related work" is broadly defined in section 6(2) of the Act. It includes "mentoring and counselling services for children".
Subsection 8(1) of the Act prohibits a person from engaging in "child related work" unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.
The Act contains a similar prohibition on an employer, employing or continuing to employ a person in "child related work" where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance.
Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).
[4]
Risk to children
The test to be applied by the Tribunal in considering the application is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:
One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…
[5]
Onus and standard of proof
Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
The standard of proof applied by the Tribunal is the civil standard, that is, the balance of probabilities. The Tribunal relies upon the decision of the Tribunal in CFJ v Children's Guardian [2016] NSWCATAD 62 (8 April 2016) (quoted with approval by Schmidt J in CFJ v Office of the Children's Guardian [2016] NSWSC 1625) which quotes the following paragraph from the Tribunal decision of BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164:
" 'For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]- [17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.'
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision."
There has been some doubt expressed as to whether the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 stated in the context of civil proceedings before a court applies to administrative review proceedings before a body such as the Tribunal: (BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [29]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Bronze Wing) at [126] to [127]). His Honour Lemming JA states in Bronze Wing at [127] that:
It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate "must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence". However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]-[40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]-[30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]-[122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted]
In those circumstances, his Honour's reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT [emphasis added]."
The Tribunal therefore approaches its fact finding in accordance with Briginshaw principle which was helpfully enunciated in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35] as being "a comfortable level of satisfaction, fairly and properly arrived at commensurate with the gravity of the charge, achieved with fair processes appropriate to and adopted by such a body".
[6]
Matters to be considered by the Tribunal
The Tribunal determines an application under section 27 by considering all the evidence presented by the applicant and the respondent in light of the mandated considerations contained in section 30 of the Act (BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]). Section 30 provides:
30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of 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.
[7]
Application of section 30(1) factors to the evidence
The evidence and the Tribunal's findings with respect to that evidence are now considered under each of the subsection 30(1) factors:
[8]
(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
The trigger offence for the purposes of the decision by the Children's Guardian to refuse the applicant a WWCC clearance is that the applicant was found guilty in 1995 (with no conviction recorded) of the common assault of a peer aged 15 years old in 1994 (when the applicant was 14 years old). The Children's Guardian states in its Notice of final decision refusing Working with Children Check clearance pursuant to s. 20 that:
"[CVE] punched the female victim to the head approximately six (6) times. The victim sustained a swollen right elbow during the assault on her. This offence is considered serious as it is physical violence towards a child that resulted in an injury. However, the overall seriousness of this matter is reduced by the age of [CVE] at the time of the offending against a peer."
The applicant does not dispute the occurrence of the trigger offence. The Children's Guardian acknowledged in submissions that the trigger offence is "considered historical".
[9]
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred
The period of time since the trigger offence is 21 years ago.
[10]
Applicant's criminal history since trigger offence
The applicant's criminal history since the 1994 trigger offence is summarised below:
Date Offence Circumstances Outcome
1 June 1995 Assault Pushed cup of tea over father; hit him on the right side of the head causing right ear to bleed. 2 year good behaviour bond under supervision of Juvenile Justice
17 February 1996 Assault occasioning actual bodily harm Pushed AB and punched, kicked and kneed her and threw her into barbed wire fence 2 years' probation
16 September 1996 Goods in custody, stealing and attempt to obtain financial advantage by deception Stole wallet of shop employee and tried to use card to buy CDs. Stole mother's silver hip flask. 2 years' probation
21 and 22 January 2000 Assault and destroy or damage property Punched club employee and kicked and broke glass doors 2 year section 9 bond with supervision
14 February 2000 Assault Spat in face of manageress of club 12 month section 10 bond
25 March 2002 Contravene AVO Contravened AVO re AB 12 month section 9 bond
13 August 2002 Driving offences Driving while suspended; refuse to produce licence; states false name or address; fail to comply with licence condition; drive with seatbelt not fastened Section 9 bond; disqualified from driving for 2 years and fines
2 August 2009 Resist arrest and assault police officer Assaulted police officer and resisted arrest when given 'move on' direction outside house where had been attending a party 50 hours community service
31 December 2010 Reckless wounding Hit victim in face with glass 12 months suspended sentence
[11]
Applicant's other relevant conduct since trigger offence
The Children's Guardian also relied upon the following conduct or alleged conduct by the applicant since the trigger offence in 1994:
Date Event/Allegation Outcome
22 January 1996 Applicant arrested by police after seen punching her mother in face. Applicant spat saliva and blood at mother and police. Applicant's mother requested no further action be taken
12 March 1996 Applicant is defendant in application for AVO brought by AB. AVO granted and enforceable for 5 years.
1998 Applicant is defendant in application for AVO. Court made order for period of 3 years with respect to protected person, his wife and children
22 May 2000 Applicant and 16 year old sister had argument and physical altercation. Interim AVO applied for and granted with the applicant as defendant. Police took no further action as victim did not wish to proceed.
May/June 2000 Applicant failed to meet conditions of Offender Management Programmes related to section 9 bond conditions arising from 21 and 22 January 2000 offences referred to paragraph [34]. Probation and Parole Office Service asked for warrant to be issued.
2 July 2001 Applicant involved in traffic accident and applicant abused other driver; punched and kicked him and his car. Police called but did not take matter further. Applicant agreed to pay for replacement car mirror and sunglasses.
7 July 2002 Police called to altercation between applicant and sister at bowling club that continued when applicant and sister returned home. No action taken as applicant and sister would not make statement to police.
December 2002 Applicant had argument with sister and was charged with assault. Matter discontinued
12 August 2005 Applicant attends Police Station as sister had reported domestic violence incident. Applicant allegedly abusive to police. No action taken
11 November 2006 Applicant and sister had verbal and physical fight. Police declined to charge.
11 September 2009 Applicant signed Community Service work undertaking but failed to comply with work instructions. Applicant informed by Corrective Services in September 2010 that she had completed Community Service Order but her progress on the Order was considered unsatisfactory due to poor performance
15 March 2011 Applicant's sister applies for AVO against the applicant. Not known
11 April 2011 Applicant reported as being abusive to staff at pharmacy. No formal action
7 June 2013 Applicant and partner's sister had altercation in street involving them punching each other. No charges
[12]
Counsel for the respondent referred to the applicant's criminal history as being "long and serious".
The Children's Guardian also provided evidence that:
1. prior to the trigger offence, the applicant had, on 8 July 1994, punched a female in the eye and damaged property outside her house. The applicant was charged with assault and damaging local council property and was released on bail. The applicant breached her bail on more than one occasion and completed two of four days' work on the Victim's Programme; and
2. the applicant is listed as the defendant in 12 AVOs between 1994 and 2003.
There was also evidence before the Tribunal of 12 parental notifications to Family and Community Services (FACS) between 2005 and 2015 relating to the applicant and the father of her two sons. They include the applicant notifying FACS of the altercation between her and her sister in November 2006 being witnessed by her oldest son. Some of the reports were notifications by the applicant and some were notifications (some of which the applicant was not aware of until these proceedings) by her former partner, the father of her sons. No further action was taken in response to these notifications other than the applicant being referred to Brighter Futures for some assistance in 2008.
The applicant stated in response to these notifications to FACS that:
"I first found out about the FACS notifications concerning my children when I obtained my file after making a Government Information Public Access (GIPA) application last year. I was shocked when I received this information as I have no knowledge of much of what is recorded in these documents.
Specifically, I do not take drugs and have not taken drugs for many years. I have never sold drugs. I have never seen my partner… take drugs or sell drugs.
I have never smacked or hit either of my children with sticks. I have never seen [my partner] smack or hit my children with sticks. We do not encourage violence in our house and we do not model violence to our children.
…
At all times, I have administered medication to [my son] responsibly".
Counsel for the applicant submitted in relation to the FACS notifications:
"There must be an evaluation of the nature and degree of any risk. In this case it seems that the Children's Guardian is asking the Tribunal to give weight to some allegations that do not allow the applicant to challenge it because the name of the person who made the allegations to FACS is unknown. In a case such as the present no weight can be given to such unsound allegations. As Fagan J observed in Children's Guardian v BRL [2016] NSCSC 1206 at [31]:
Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call witnesses was advanced, would reduce them to negligible weight".
The applicant also stated on a number of occasions during her evidence that, while she accepted that the incidents that make up her criminal history occurred, she has no independent recollection of some of them given her intoxicated state at the relevant time.
The applicant rejected the version of the events contained in the Police report relating to the incident at a pharmacy on 11 April 2011. She told the Tribunal upon paying for items at the pharmacy, she was asked to empty her handbag by an employee who had known her from school. When she subsequently complained to the pharmacy, she was asked to return to the pharmacy to receive an apology. Upon returning to the pharmacy she was told she was banned from going to the pharmacy again and she protested about this course of action. As a result of this, the pharmacy called the Police at her request.
[13]
(c) the age of the person at the time the offences or matters occurred
The applicant was 14 years old at the time of the trigger offence in 1994.
[14]
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim
The victim in the trigger offence was a 15 year old child. The applicant's sister was 16 years old at the time of the incident on 22 May 2000.
The applicant's young son witnessed the incident between the applicant and her sister on 11 November 2006. The applicant's children and the child of her partner's sister witnessed the incident on 7 June 2013.
[15]
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person
The difference in age between victim and the applicant at the time of trigger offence was minimal. They were both children.
[16]
(f) whether the person knew, or could reasonably have known, that the victim was a child
The applicant knew the victim was a child.
[17]
(g) the person's present age
The applicant is currently 37 years of age.
[18]
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant acknowledged her criminal history as presented to the Tribunal by the Children's Guardian. The applicant stated in her affidavit to the Tribunal that:
I understand and accept that my criminal record is serious. There are a number of offences including offences of violence that I committed as a child. I struggled as a teenager. I ceased to excel in secondary school. I associated myself with peers who were also struggling. I abused alcohol, was impulsive and made poor decisions.
The majority of the evidence relied upon by the applicant is that the trigger offence and her criminal history occurred in particular circumstances (for example, in association with the consumption of alcohol and illicit drugs; within the context of a dysfunctional family life or other interpersonal relationships) that no longer form part of her life. The applicant submitted that in the context of her present life circumstances and increased self-awareness, she does not pose a risk to children.
The applicant states in respect of the 31 December 2010 assault:
As an adult, I committed the most serious offence of violence on my record. In 2010, I attended a local hotel on New Year's Eve. I drank too much. There are things I do not recall. I remember being shown the CCTV footage of what happened afterwards by my solicitor. My recollection is that this footage showed the victim punching my sister once. I then went up to the victim. The victim hit me in the face. I then hit the victim, unfortunately with the hand holding my glass.
I am ashamed of my actions and the injuries that I caused the victim which is in no way proportionate to anything that she had done beforehand. I handed myself in to police after it happened and expressed remorse immediately after having done so. I subsequently paid restitution to the victim. I realised soon after this incident that I had no tolerance for alcohol and needed to stop drinking completely. I have not committed any offences since this incident.
Counsel for the applicant submitted:
"The applicant has a long and extensive criminal record involving physical conflict with her family, particularly her mother, father and sister and personal acquaintances. The applicant's criminal conduct seems to have taken place during interpersonal interactions where the participants were consuming alcohol or other drugs. They were impulsive and alcohol related aggressive behaviours.
There is no violent or inappropriate conduct that has occurred in front of children or at the workplace."
[19]
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The applicant states in her affidavit to the Tribunal that:
I am not a risk to children. I understand that my previous criminal behaviour was serious and I regret my actions and the way I reacted. I should never have resorted to violence and there is no excuse for it.
…
Although I am unlikely to ever be in similar circumstances to that in which I committed the most serious offence, I understand that if I am ever in a violent situation with anyone else again, I would walk away from the situation and seek help.
…
I understand that violence poses a significant risk to children and they should never be exposed to violence of any kind.
…
I have never responded violently to a child as an adult. My work in the community as well as my studies have trained me in how to communicate effectively with children and young people. If they become physically aggressive towards me, I know not to retaliate and just to make sure they are in a safe place where they won't harm themselves and to provide support and get help.
The applicant gave oral evidence to the Tribunal and was cross-examined by Counsel for the respondent. The applicant's evidence as to the likelihood of her repeating the trigger offence or other conduct was that her life is different since she engaged in that conduct in that;
1. she has not consumed alcohol since the incident on 31 December 2010;
2. she has gained insight into her behaviour and how dysfunctional her life had been through her studies in social work, attending an Anger Management Course and engaging in counselling;
3. her social work studies, participation in an Anger Management Course have given her strategies to deal with difficult situations;
4. she has distanced herself from her family of origin;
5. she wants to be a role model for her children
6. she has a supportive partner; and
7. she has studied and worked hard to establish a career where she can bring her own life experience to assist troubled youth and make a "difference to people's lives".
The applicant told the Tribunal that the altercation between herself and her partner's sister in 2013 was preceded by several instances of her partner's sister harassing and abusing her. The applicant said that if those circumstances happened today, she would not engage with the behaviour; would ignore it and stay away from the protagonist. The applicant said she and her partner's sister have apologised to each other and reconciled since that incident.
The applicant expressed regret that the incidents of physical conflict involving her sister on 11 November 2006 and her partner's sister on 7 June 2013 occurred in front of children. She said she consoled her oldest son with respect to the incident on 7 June 2013 and explained to him that such violence was not acceptable.
Counsel for the applicant submitted in writing that the likelihood of any repetition by the applicant of offence or offences against children is minimal or low and there is no or appreciable risk to children for the following reasons:
1. the applicant's offence was against a known person because of some interpersonal dispute;
2. the applicant was under the influence of alcohol and was unable to exercise impulse control;
3. the applicant had a problem with the consumption of alcohol which no longer exists;
4. the applicant has applied herself through personal and psychological development counselling, physical development, study and work to mature as a responsible adult;
5. the applicant is a 37 year old woman who has her life before her and who is determined to study and succeed in life;
6. the applicant demonstrates insight into past wrong doing and understand concepts associated with the protection of children;
7. the applicant has demonstrated her ability to nurture and support her children, one of whom has been diagnosed with attention deficit/hyperactivity disorder and oppositional defiant disorder as a sole parent; and
8. the applicant has strong emotional connections with her children and a loving partner.
We had before us with respect to the applicant, A Psychological Risk Assessment Report dated 25 January 2017 and Addendum to Psychological Risk Assessment Report dated 9 February 2017 by Dr Emma Collins, Clinical and Forensic Psychologist. Dr Collins' report relied upon some information provided to her by the applicant's treating psychologist, Dr Emma Voigt. Dr Collins also gave evidence-in-chief and was cross-examined by Counsel for the respondent.
Dr Collins notes several matters in her report including that the applicant reported that she does not have urges to drink alcohol; has attended an anger management course and on the Personality Assessment Inventory (PAI) had scored moderate with respect to positive impression management.
Dr Collins states in her report:
Considering all the information available to me, I assess that [CVE] currently presents as low risk regarding future recidivism. She has a number of strong protective factors present. In providing this opinion, I have also considered [CVE] no history of direct offences against children (other than a similar aged peer), she has no criminal convictions since 2011 and she presents with current stability in the community. As such, I can find no compelling evidence that she poses a specific risk to the safety of children.
Dr Collins acknowledged in examination-in-chief that the applicant had not raised with her the incident on 7 June 2013 when she and her partner's sister had fought in front of their children. Dr Collins stated that her assessment of the applicant had focussed on her criminal history.
Dr Collins stated under cross-examination she had placed weight in her assessment of the risk of the applicant's future recidivism on the relationship between her criminal history and her consumption of alcohol. Dr Collins stated that now she was aware of the 2013 incident occurring in the absence of alcohol, she might raise her assessment of CVE's risk of future recidivism from low to low/moderate. Dr Collins stated that it would not alter her view that the applicant does not pose a specific risk to children.
Counsel for the respondent submitted in writing that:
…Dr Collins' assessment should not be treated as determinative of the risk posed by the applicant because:
1. She did not consider episodes of violent behaviour not resulting in police action, in particular, 3 episodes in 2011 and 2013.
2. The applicant was not totally frank with Dr Collins in that she did not disclose those episodes and her answers to the PAI did not disclose common shortcomings.
3. Dr Collins' view that the applicant does not need treatment in relation to alcohol misuse appears to accept the applicant's view of herself but to disregard the applicant's statements about her occasional use of alcohol on social occasions but continuation of binge drinking during those occasions.
4. Dr Collins' opinion that the applicant is able to effectively manage her anger is based on the applicant's self-report. The applicant's statement that she felt she had been provoked had not been explored.
5. The applicant did not disclose her drug misuse to her treating psychologist and therefore [the treating psychologist's] information to Dr Collins was not accurate and Dr Collins was not aware that the applicant had failed to attend the last session of treatment with [the treating psychologist] when she wrote that the applicant had engaged well with treatment.
[20]
(j) any information given by the applicant in, or in relation to, the application
The applicant's Statutory Declaration dated 31 May 2016 included a number of references including from persons who have worked with the applicant or observed her during her work or placements as a youth worker or in environments where she has worked with children and youth. The references speak highly of the applicant as a person as well as a member of staff. Some of the references specifically refer to the applicant's work with children and youth. One referee states "she uses her bright and friendly personality to develop caring and trusting relationships with both children wanting new horizons or those who may be at risk of harm or abuse". Feedback from the applicant's placement as a youth worker in 2010 states that the applicant "was a thoughtful and enquiring SW student who demonstrated insight about her own life experiences as a child, adolescent and adult. She recognised that these were experiences that influenced her career choice and as a future social worker wants to make a difference to the lives of others". There was also a letter from a treating doctor of the applicant's children referring to the care and attention she provides to her son with a disability.
Counsel for the respondent submitted that "none of the references tendered by the applicant shows the referee was familiar with the extent of the applicant's violent history".
The applicant stated that she did not attend her last appointment/counselling session with Dr Voigt because she had to attend a job interview. She added that she telephoned her psychologist's office to cancel her appointment.
The applicant states in her affidavit to the Tribunal that she is currently studying a Certificate IV in Business and states "I chose this course because I hope to one day run my own clinic working with children with mental health needs and I thought this course might equip me well with the practical skills required to achieve this".
The applicant stated that she has been unable to accept two positions as social worker due to her lack of a WWCC clearance. She has not applied for other positions as most of them require a WWCC clearance. The applicant added in her oral evidence that she commenced a job with her local funeral director on 6 March 2017 because she could not get employment in her professional field of social work. The applicant stated she is struggling financially and does a paper run two days a week to supplement her income.
[21]
(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.
There is no evidence of any relevant material under this section.
[22]
(k) any other matters that the Children's Guardian considers necessary
Counsel for the respondent submitted that "the applicant has not been protective of her own children in circumstances where they have been witnesses to violence either perpetrated by the applicant or where she has been a victim". Counsel for the respondent also submitted that in 2008 concerns were raised with the Department of Family and Community Services over the level of domestic violence in the applicant's household and the impact that was having on her children as well as whether she was providing her son with his medication in accordance with doctor's instructions.
[23]
Tribunal's consideration and determination
We have carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.
[24]
Applicant's credibility
We found the applicant to be a very credible witness when giving her oral evidence. She candidly and openly reflected on her criminal history and acknowledged it was serious. She did not minimise in any way her past behaviour. The applicant also disclosed to the Tribunal that her children and her partner's sister's child witnessed the physical altercation between them in 2013.
The applicant displayed significant insight into some of the factors (such as alcohol; drug abuse; a dysfunctional family of origin and difficult first marriage) that influenced her past violent behaviour. She also accepted responsibility for her behaviour and showed remorse for her past actions. The applicant expressed regret and distress at the fact her children witnessed the altercation with her partner's sister in 2013 and her son witnessed the incident on 11 November 2006 and her concern as to the effect this may have had upon her children.
[25]
Does the applicant pose a "real and appreciable risk to children"?
The primary issue for us to determine is what is the correct and preferable decision in relation to granting a WWCC clearance to the applicant having regard to the material before us? There is no requirement for the applicant to show that the original decision maker's decision was wrong (Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88). There is also no onus on the applicant to show that she is not a risk to children.
It was not in dispute in these proceedings that the trigger offence occurred in 1994 or that the victim and the applicant were both children at the time. What is in dispute between the applicant and the respondent is how determinative the applicant's criminal history and other relevant conduct up to 2013 is on assessing whether the applicant poses a "real and appreciable risk to children".
Counsel for the applicant submits that:
..the offences that the applicant committed were as an immature and impulsive person under the influence of alcohol who was associated with peers and family members under the influence of drugs, without an education or direction. The applicant's past should not define her for life where there is overwhelming evidence, including evidence from a substantial number of professionals that she has turned her life around. Past offending should not limit her future child related work in these circumstances. She is a very different person now to when she committed the offence in 2010.
Indeed the applicant worked with children and their families and has been highly commended for her work. There were no adverse concerns and she was closely supervised. There is a low risk that in the future the applicant will as the Children's Guardian submits, engage in violent impulsivity and reoffend by punching, striking or 'glassing' a child.
Counsel for the applicant placed weight on the manner in which the applicant has altered her life since her last criminal offence at the end of 2010 by abstaining from alcohol; adopting a healthy lifestyle; studying social work and seeking counselling and assistance for anger issues.
Counsel for the respondent submits that:
The applicant has a significant history of violent behaviour which has in a number of cases resulted in serious injuries to the victims. Much of this violent behaviour has occurred following the consumption of alcohol but not all of the violent incidents in the applicant's history can be explained this way.
The most recent known violent altercation involving the applicant took place in June 2013, less than 4 years ago.
The applicant has recently completed the Making Choices Program but it is too soon to do more than speculate that the program will have resulted in an impact on the applicant's long standing anger and alcohol problems and caused her to effect behavioural change.
There is a real and appreciable risk that the applicant will repeat her violent behaviour and any such repetition to which a child was exposed or where a child was a victim would, of course, be inimical to that child's welfare and safety.
In addition to the applicant's criminal history, Counsel for the respondent placed particular weight on the fact that the 2013 altercation between the applicant and her partner's sister (whilst not resulting in criminal charges) took place in the absence of the applicant having consumed alcohol and in the presence of the applicant's two sons and the other party's child.
The only evidence before the Tribunal of the applicant engaging in behaviour that physically injured a child is the 1994 trigger offence that occurred when the applicant was also a child. There was no evidence before the Tribunal that the other offences contained in the applicant's criminal history involved children. The physical altercations involving the applicant and her sister in 2006 and the applicant and her partner's sister in 2013 were witnessed by children. As with a number of the offences listed in the applicant's criminal record or incidents that did not result in criminal charges, the events in 2006 and 2013 involved persons who were known to the applicant and with whom she was having interpersonal difficulties. The applicant told the Tribunal of her remorse with respect to these incidents and that she had spoken to her oldest son about the inappropriateness of physical violence.
The Tribunal agreed with the submissions of counsel for the applicant and placed negligible weight on the notifications made to FACS that the applicant did not have the opportunity to test the matters referred to in them nor in many instances was it even clear who had notified FACS of the matters.
We accept the applicant has a significant criminal history that includes acts of physical assault and impulsive violence. It is clearly not desirable that young children witnessed the incidents of assault in 2006 and 2013. It does not follow, however, that because the applicant has a history of physical violence in the context of alcohol and/or interpersonal disputes (mainly with her sister) and that two of those incidents were witnessed by children, that the applicant poses a real and appreciable risk to children. The Tribunal placed weight on the following factors:
1. it has been over six years since the applicant committed an offence;
2. the applicant's genuine remorse for her past behaviour;
3. the applicant's clear insight into the reasons why she behaved in an unlawful or unacceptable manner in the past (including the incident in 2013);
4. the applicant's desire to maintain those aspects of her life (such as abstinence from alcohol) that will minimise the risk of her engaging in violent behaviour in the future; and
5. Dr Collins' evidence that the applicant does not pose a specific risk to children.
Furthermore, the jurisdiction of the Tribunal is protective of children and not punitive of the applicant. The decision to refuse the applicant a WWCC clearance has a current and prospective punitive impact upon her financially in that she has been unable to accept two positions as social worker due to her lack of a WWCC clearance and is unlikely to be able to accept such positions in the future without a WWCC clearance.
On the basis of all the evidence before it, we cannot be satisfied there is sufficient evidence before it to find that the applicant poses a real and appreciable risk to children that is greater than any risk of an adult preying upon a child.
[26]
Application of section 30(1A) to the evidence
Section 30(1A) of the Act is applicable as the Tribunal has found that applicant does not pose a real and appreciable risk to children: ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ); CHB v Children's Guardian [2016] NSWCATAD 214 (CHB) at [107]; CSO v Children's Guardian [2017] NSWCATAD 346 at [126].
Section 30(1)(A) 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.
[27]
The "reasonable person" test
The respondent's submission to the Tribunal is that in light of all the evidence a reasonable person would not 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. Amongst other matters, the Counsel for the respondent submitted that:
1. the Tribunal's findings in CHB are relevant to this case;
2. despite the applicant graduating in social work in 2004 and obtaining a Certificate IV in 2006 with a distinction in alcohol and other drugs work, she engaged in a physical altercation with her sister in 2006 that was witnessed by her son; the assault of a police officer in 2009; a serious assault on another woman on 31 December 2010 and an altercation with her partner's sister in front of three children in June 2013;
3. the evidence of Dr Collins was that the children who witnessed the altercation in June 2013 would be "psychologically damaged"; and
4. "children can be unwitting victims psychologically when [the applicant] loses her temper" (as stated in oral submissions by Counsel for the respondent on 21 November 2017).
Counsel for the application in oral submissions on 21 November 2017 disagreed with the submissions made by Counsel for the respondent in paragraph [87] (3) and (4) above.
[28]
Tribunal's consideration and determination
We support and adopt the reasoning of the Tribunal that the "reasonable person" referred to in section 30(1)(A)(a) is a person who "is acquainted with all the relevant facts of which the Tribunal is aware": CHB v Children's Guardian [2016] NSWCATAD 214 (CHB) at [127]; CYY v Children's Guardian [2017] NSWCATAD 262 (CYY) at [73]. As stated in CSW v Children's Guardian [2017] NSWCATAD 326 (CSW) at [136]:
"In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view our reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all the material."
In CHB at [126], the Tribunal found that:
"even in the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person would consider that the applicant's emotional dysregulation and psychological instability is likely to have a negative impact upon children, even if it does not pose a risk to their safety".
We acknowledge a person's emotional dysregulation and psychological instability may have a negative impact on children. We distinguish, however, the facts in CHB from the present case in that the applicant in that matter had been convicted of assaulting her four years old daughter. There is no evidence before us in the present case the applicant has physically assaulted a child other than in the 1994 trigger offence that occurred when the applicant was also a child
As stated above, Dr Collins acknowledged in cross-examination she had not been aware until the hearing that the 2013 incident between the applicant and her partner's sister had been witnessed by children. Dr Collins made the following statements (at pages 70 and 71 of the transcript of the proceedings on 8 May 2017):
"I think it's concerning if that behaviour occurred in the presence of children.
…
It's my opinion that any kind of aggression in front of children is unsurprisingly inappropriate. One of the things that I have to consider from a risk management perspective is [the applicant's] conduct within the workplace as the place where - in terms of applying for a Working with Children check, and I guess one first comment that comes to mind is she is somebody that - from all the accounts that I've read in terms of character references seems to have quite a professional standing. People speak very highly of her in terms of her professional conduct. So what we have is a pattern of inappropriate conduct and some of that being to level of an offence around familial style relationships where children have potentially observed some of those, or at least a couple of those, as you say. What does that mean about her within the workplace? I guess that's a - that's a slightly different question. So yes, I do have concerns, as I mentioned, about that conduct occurring in the presence of children. I guess I would like to think about what that would translate to in terms of her future working relationships with children. Well, you know, would she act if she was provoked in a similar way, for example.
…
Dr Collins then revised her risk assessment of the applicant from Low to Low/Moderate. This was also in the context of Dr Collins now being aware that the 2013 incident occurred in the absence of alcohol. Contrary to the submission by Counsel for respondent, Dr Collins did not make any statement that children were "psychologically damaged" by witnessing the 2013 incident. Furthermore, there was no evidence before us from suitably qualified professionals that "children can be unwitting victims psychologically when [the applicant] loses her temper".
As to the risk the applicant posed in the workplace, Dr Collins stated (at page 73 of the transcript of the proceedings on 8 May 2017):
"If she were to reoffend, I think it's - we look at risk scenarios. In what circumstances is this person most likely to behave violently? Under what stresses for example. And we look at past behaviour as the best predictor of that. So therefore, I'm of the view that [the applicant] is more likely to offend or become offended towards people that are known to her or in some context or become offended towards people that are known to her or in some context with her familial relationships. As best as I can tell, perhaps where she feels she's protecting other people or protecting something, if it's her reputation or otherwise. There is no evidence that I have reviewed that there has been misconduct within the workplace, and to that end, I think that's an area of - well, where [the applicant] is able to effectively maintain professional boundaries and behave appropriately, according to everything that I've read, and therefore that there's no evidence of risk within the workplace as such.
We were satisfied that the reasonable person with knowledge of all the evidence and submissions placed before the Tribunal 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.
[29]
The "public interest" test
Having found in the affirmative for the applicant with respect to section 30(1A)(a), we now consider the second limb of that test: whether we are satisfied it is in the public interest to make an order that enables the applicant to work with children.
The applicant's submissions were that:
1. guidance on the scope of "public interest" can be found in the Supreme Court of Victoria decision in ZZ;
2. in considering the public interest, the Tribunal should have regard to the applicant's interaction with children during her work and studies; the applicant's desire to continue and expand her involvement in social work; and the applicant's loss of opportunity to be employed in the field she has studied in for 10 years;
3. the applicant's past where she "came from the wrong side of the tracks" should not define her for life given the overwhelming evidence from a substantial number of professionals that she has turned her life around;
4. the applicant's work with children and families has been highly commended; and
5. the applicant has since 2011 immersed herself in healthy living at a physical and psychological level as well as achieving a formal education which is "no small feat for a person who left school in Year 8".
The respondent's submissions were that:
1. the public interest is to protect children;
2. the fact that the applicant may be or is at a disadvantage in the labour market is not a competing public interest where the object of the legislation is only to protect children; and
3. where the applicant's "risk has been assessed as low/moderate it would not be in the public interest to expose children to that risk".
[30]
Tribunal's consideration and determination
We note the decision of the Court of Appeal of Victoria in Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 (PMY) with respect to analogous provisions in the Working with Children Act 2005 (Vic), where Warren CJ, Osborn JA and Cavanough held at [61]:
Once the Tribunal is satisfied…the applicant poses no unjustifiable risk to the safety of children, it will necessarily be an unusual case in which the public interest nevertheless requires that no assessment notice be given.
We rely upon decisions of this Tribunal and from the Victorian jurisdiction (with respect to analogous provisions) in approaching the scope of "public interest" in section 30(1A)(b) as follows:
1. the notion of public interest is broad and central to it is the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm: PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 (PJR) at [45]; ZZ at [199]; CYY at [74]-[75]; CSW at [141] - [142];
2. the right of a person to engage in work is relevant including enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work; not turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others: PJR at [45] and ZZ at [203];
3. the public interest in people with appropriate life skills and experience having contact with children; in their community involvement and participation in local sporting clubs and competitions; in encouraging volunteers to train and act as mentors to younger participants; in not placing unnecessary barriers in the way of employing older workers whose experience and work history outweigh their formal qualifications; and in giving effect to a person's right to engage in community affairs, including community-based children's organisations: ZZ at [204]; and
4. the relevance and importance of rehabilitating offenders: PMY at [63]; ZZ at [208]; MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514 at [35].
On the basis of the evidence before us and applying the principles outlined above, we are satisfied it is in the public interest to grant the applicant a WWCC clearance for the following reasons:
1. as we have determined above, we are satisfied the applicant does not pose a real and appreciable risk to children and that a reasonable person with knowledge of all the evidence and submissions placed before the Tribunal 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. without a WWCC clearance, the applicant will be either seriously limited or excluded from using her qualifications in social work and this will have a detrimental effect on her earning capacity (see the evidence outlined at paragraph 68 above);
3. without a WWCC clearance, the applicant will be either seriously limited or excluded from pursuing her desire to work with troubled children including running her own clinic working with children with mental health needs (see paragraph 67 above). There is a public interest in the applicant being able to use her experiences of her own offending, dysfunctional family background and issues with alcohol to benefit children and experiencing similar issues. Indeed, there was evidence before us (see paragraph 64 above) that the applicant's past experiences may enhance her ability and credibility in engaging and connecting with children in these circumstances which could improve their own chances of rehabilitation; and
4. granting a WWCC clearance acknowledges and assists the applicant in continuing and consolidating her progress in rehabilitating and overcoming her challenging background.
[31]
Conclusion and Orders
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under sections 30(1) and (1A) of the Act, the correct and preferable decision having regard to the material before the Tribunal is that the applicant should receive a WWCC clearance.
Accordingly, the Orders of the Tribunal are as follows:
1. The decision of the Children's Guardian dated 21 October 2016 to refuse the Applicant's Working with Children Check clearance is set aside.
2. In substitution for that decision, the following decision is made: The Applicant is granted a Working with Children Check clearance.
[32]
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: 19 December 2017