CXZ v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-06-29

The Applicant's evidence in these proceedings

The Act imposes a duty on the applicant to disclose all relevant matters: s 27(4) of the Act. The applicant gave oral evidence to the Tribunal about which he was cross-examined at some length. In considering the totality of his evidence, we found the applicant to be a truthful and reliable witness.
We accept that the applicant was fined for the offences of theft and assault police that occurred in 1995. On the evidence before us and in light of the applicant's oral evidence to the Tribunal, we are not satisfied that the applicant deliberately concealed this conviction. For this reason, we do not find him in breach of the provisions of s 27(4) of the Act.

Matters to be taken into consideration - section 30(1)

In determining this application, the Tribunal "must consider" those factors set out in s 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b)

Over thirty years have passed since the homicide occurred and it has been twenty years since the applicant was acquitted of the charge of murder in 1997.
Since this time, he has had no criminal convictions. In 2000, an AVO was made against him. In the absence both of details of the granting of the AVO and any evidence from the complainant, we do not give it any weight in determining whether the applicant currently poses a risk to children.
In the course of acrimonious family law proceedings, charges of intimidation and assault that had been laid against the applicant in relation to the applicant's second wife were either dismissed or withdrawn. In the absence of evidence from the complainant, we are unable to make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.
A wealth of documentation from the 2002 and 2003 Family Law proceedings is before us, including statements alleging violence by the applicant, details of which are set out above. On the evidence before us, it would appear that the statements were not subject to cross-examination before the Family Court nor did the makers of the statements give evidence before this Tribunal. Given the serious nature of this matter, we are not satisfied, on the evidence before us, that we can make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.
We accept the applicant's evidence that he had slapped his first wife. On the basis of the case summary report prepared by the Independent Children's Lawyer in the applicant's family law proceedings, we accept that his sons witnessed violence between their parents. On the evidence before us, we accept that have been no further allegations of violence between the applicant and his second wife and that the applicant is seen to be a loving and caring father.
In the course of these Family Law proceedings, allegations were made that, as a child, the applicant sexually assaulted his brother, who is two years his junior, and inappropriately touched his sister, who is a year older than him. On the evidence before us, we accept that sexual contact took place between the applicant and his brother when they were both children and that the applicant inappropriately touched his older sister, again when they were both children. As set out above, given the historical nature of the incidents and in light of the opinions of Dr Jones and Dr Allnutt that the incidents do not increase the applicant's current to children, we give them little weight in assessing the applicant's current risk to the safety of children.
There have been a series of notifications to FACS/DOCS since the applicant's acquittal in 1997, many of which appear to have been made by the applicant's first wife, whose reliability was questioned by caseworkers, and by the applicant's second wife, in the context of acrimonious family law proceedings that resulted in the applicant being given the primary care of his elder sons. As set out above, in the absence of corroborating material, we are unable to make any positive findings in relation to these notifications.
There are COPS event records for the applicant in relation to a dispute with his daughter in 2005 and a dispute with his son in 2008. Having assessed the evidence before us, as set out above, we give it little weight in an assessment of the applicant's current risk to children.
In 2009, the applicant was acquitted of a charge of assault. Whilst we accept that the applicant showed a lack of judgement during the incident, for the reasons set out above, we give little weight to it in assessing whether the applicant poses a current risk to the safety of children.
We have noted the applicant's long working history as a security officer and given the lack of evidence before us, we are unable to make any positive findings in relation to the small number of COPS events involving incidents at venues where the applicant had been working as a security officer. It is not contested that during the applicant's long working history as a security officer, he has not been subject to any disciplinary proceedings.

The age of the person at the time the matters occurred (s 30(1)(c))

The applicant was 26 years old at the time.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim (s 30(1)(d))

The victim was a 39-year-old adult in a relationship with the applicant's stepmother.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s 30(1)(e))

The victim was 13 years older than the applicant.

Whether the person knew, or could reasonably have known that the victim was a child (s 30(1)(f))

The victim was not a child.

The person's present age (s 30(1)(g))

The applicant is currently 55 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s 30(1)(h))

In 1990, the applicant was found guilty of stealing. No conviction was recorded.
In 1995, the applicant pleaded guilty to assault police, attempt theft of motor car and cause injury, for which he was fined.
In 1996, the applicant was found guilty of obtaining a social security benefit that was only part payable. No conviction was recorded for the offence.
Since 1996, the applicant has worked as a security officer. Since 2002, he has had full-time care of his elder sons. Since 2015, he has also had the full-time care of his youngest son.
Consideration of any notifications and police reports made against the applicant since 1996 have been considered above.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

The Children's Guardian submits that the circumstances of the killing demonstrate a psychological vulnerability in the applicant, making him susceptible to coercion from people he is fearful of and showing a lack of resilience to defend his own convictions. This, however, is not supported by the findings in the risk assessment reports prepared by Dr Jones and Dr Allnutt.
In relation to the homicide, Dr Jones found that the factors relevant then are not relevant now given that the influencing figure, namely the applicant's father, has been dead for 20 years.
Dr Allnutt also agreed that the applicant's automatism was caused by an external figure, namely his father who is now dead, that there has been no recurrence of it in almost 30 years and that there was no significant evidence of a recurrence of the situation where his will was overborne by external influence since then. In light of these findings, we do not accept the respondent's submission that the factors which diminished the applicant's responsibility for the homicide thirty years ago elevate his current risk of harm to children.
It is the view of both Dr Jones and Dr Allnutt that the applicant poses a low risk to the safety of children.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

The applicant has given evidence that he has been a single father for the past fifteen years, initially with the full-time care of his two elder sons and now also with the full-time care of his youngest son.
A reference from his doctor, who was not required for cross-examination, describes the applicant as a caring and loving father and states that he sees 'no problem with him working and caring for children.'
The applicant also submits that over the past 30 years, he has successfully rehabilitated himself during which time he has had a long working history as a security officer and has successfully parented his children.

Any other matters that the Children's Guardian considers necessary (s 30(1)(k))

The Children's Guardian has not put forward any other matters for the Tribunal to consider.

Conclusion on section 30(1) matters

For the following reasons, we are of the view that the applicant does not pose a real and appreciable risk to children.
We accept that the applicant was subjected to abuse from his father during his childhood and early adulthood. We accept that, in the context of this relationship, as an eleven-year-old boy, the applicant inappropriately touched his twelve-year-old sister. We also accept that he and his younger brother (who is two years younger than him) engaged in sexual activity as children. In the absence of oral evidence from the applicant's brother, we accept the findings of Dr Allnutt and Dr Jones that, on the evidence, this amounted to sexual experimentation in the context of a dysfunctional upbringing rather than being indicative of abuse by the applicant.
We also accept that during the 1990s, the applicant was charged with an offence of social security fraud and an offence of stealing. No conviction was recorded for either charge. Given the nature of each charge, the time that has now elapsed and the fact that no conviction was recorded for either matter, we find these matters to be of no relevance to an assessment of whether the applicant currently poses a risk to the safety of children. For this reason, we give no weight to them.
In 1997, the applicant was acquitted of the murder of his stepmother's partner on the basis that he was acting as an automaton. The facts and circumstances of the killing are confronting and difficult. We give weight, however, to the opinion of both the psychiatrist engaged by the applicant, Dr Jones, and that of the psychiatrist appointed by the Children's Guardian, Dr Allnutt, that the killing occurred as a result of the applicant's father's abusive control over him and, given that his father is now dead, would not reoccur. That the two psychiatrists concur in this opinion gives us further confidence in their individual assessments. On this basis, we find that, despite the awful circumstances of the killing, it is of little relevance to a consideration of whether the applicant currently poses a risk to the safety of children.
We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant's children witnessed violence between their parents and accept this this would have been detrimental to them.
On the evidence before us, we are satisfied, however, that the domestic violence between the applicant and his second wife is no longer ongoing. We give weight to the Family Court orders in 2006 giving primary care of his two elder sons to the applicant and note the requirement of the Court to consider the best interests of the children in the making of orders. We also give weight to the findings of Dr Quadrio in her report to the Family Court in which she found the applicant to be a caring and involved parent to his sons.
We are not satisfied that the applicant's behaviour towards his daughter in 2006 was physically violent. In the absence of oral evidence by the applicant's daughter, we accept the applicant's evidence that he had marched her down the stairs in response to her behaviour. We accept the applicant's evidence that he would now manage the situation differently and would not have told his daughter to leave the house in response to her behaviour.
We have given some weight to the altercation that occurred at the fast food outlet in 2009. We find the applicant's behaviour to have been ill-considered and note his evidence to us that he should never have got out of his car. We accept the findings of the magistrate that the applicant acted in self-defence.
We note that the applicant has worked as a security guard for 28 years in volatile and often violent locations and give weight to the fact that, on the evidence, the applicant has never been charged for an offence during his employment. We also give weight to the evidence before us, undisputed by the Children's Guardian, that the applicant has held his current security licence for a decade. We note that it is a prerequisite of the grant of a security licence that an applicant be a fit and proper person and that it would be in the public interest for the applicant to hold such a licence. (see s 15(1) and s 15(3) of the Security Industry Act 1997)
Although much of the evidence before us deals with events that took place up to thirty years ago, our task is to assess whether the applicant currently poses a real and appreciable risk to children.
In determining that the applicant does not currently pose a real and appreciable risk to children we have given particular weight to:

the findings of the psychiatrists Dr Allnutt, engaged by the Children's Guardian, and Dr Jones, engaged by the applicant, each of whom determined the applicant to be a low risk - rather than a real and appreciable risk - to the safety of children;
the evidence before us that in 2006 the Family Court placed the applicant's two older sons in the applicant's care where they remain;
the evidence before us that the applicant is an attentive and caring father who has been the primary carer of his elder sons since 2002 and that of his youngest son since 2015;
the fact that, for the past decade, there have been no DOCS or FACS reports in relation to the applicant or his children.

For the reasons set out in this decision, we are satisfied that the applicant does not pose a real and appreciable risk to children.

Orders 1. The decision of the respondent dated 2 December 2016 to refuse to grant the applicant a 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.

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 February 2018

Legal principles

The Child Protection (Working with Children) Act 2012 ('the Act') provides that a worker must not engage in child-related work unless he or she holds such a clearance. (s 8 of the Act).
The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (s 3 of the Act).
The Children's Guardian has the power to undertake a risk assessment under s 15 of the Act. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Under s 27 of the Act, the Tribunal has the power to review a decision of the Children's Guardian to refuse a working with children check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see s 63 of the Administrative Decisions Review Act 1997.)
Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s 28 of the Act.
The jurisdiction of the Tribunal under s 27 of the Act is protective and not punitive in nature: 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].
In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38].
In Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42], Young CJ in Eq (as he then was) said: '42 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".

At a glance

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Judgment (16 paragraphs)

Parties

Cases Cited (5)

Cited By (1)