CYP v Children's Guardian

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Bundle of Documents filed 6 January 2017 including application and final notice dated 28 November 2016 from the Office of the Children's Guardian attaching Reasons for Decision to refuse Working With Children Check clearance - Exhibit A1; 2. Statement of Applicant filed 1 June 2017 including Annexures comprising 49 pages - Exhibit A2; 3. Affidavit of Sonja Smith filed 1 June 2017 - Exhibit A3;
2. The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 10 April 2017 - Exhibit R1; 2. Further documents filed by the respondent on 2 May 2017 comprising documents produced pursuant to notices issued under section 31 of the Child Protection (Working with Children) Act 2012(NSW) and correspondence with the applicant - Exhibit R2; 3. Additional documents filed by the respondent on 30 June 2017 - Exhibit R3; 4. Additional documents filed by the respondent on 31 August 2017 comprising documents produced by NSW Police in response to summons, 53 pages - Exhibit R4;
3. The applicant filed written submissions on 20 September 2017. She gave oral evidence and was cross-examined on 21 September 2017. The respondent filed a written outline of submissions on 13 September 2017.

Legislative Provisions relevant to the decision

1. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
2. There is no definition of "child abuse" contained in the Act. The Children's Guardian, who is the respondent to these proceedings, is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units.
3. The objects of the Act are set out in section 3 which provides: Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.
4. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
5. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: 14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
6. The hearing before the Tribunal is pursuant to an application under section 27(1) of the Act.
7. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children.
8. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to section 28(7) of the Act if she were a disqualified person.
9. As previously stated, the primary issue for us to decide is whether, as at the date of hearing, the applicant "poses a real and appreciable risk" to children.
10. 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.
11. There is no requirement upon 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) 3 ALD 88.

The evidence to be considered

1. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15(4) of the Act for the purposes of carrying out their risk assessment.
2. Section 30 of the Act provides as follows: 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 know, 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. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note: Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
3. The Tribunal must also consider section 30(1A) in determining an application. This section provides that: (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: 1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and 2. It is in the public interest to make the order.
4. The evidence is considered below under subheadings which refer to the considerations under section 30(1) and 30(1A) of the Act.

The seriousness of the offences that caused a refusal of a clearance

1. On 13 June 2013 the applicant was charged with common assault (domestic violence related); assault occasioning actual bodily harm (domestic violence related); and take action that results in emotional/intellectual damage.
2. On 25 November 2013 the applicant was convicted of the charge of common assault but received a 12 month good behaviour bond with no conviction recorded. The other charges were withdrawn.
3. The charge of common assault was the consequence of an incident at the Westmead Children's Hospital in February 2013 when CYP's first child, then six months of age, was taken by CYP to the emergency department and required oral medication. This was handed to CYP who, when the child refused the oral medication and moved her head away, responded by slapping the child across the face with an open hand. CYP then pulled the child out of her pram by grabbing her left arm and held her arms tightly while giving the child small slaps across her face.
4. During the admission of the child to hospital in February 2013 the applicant told hospital staff that she beats the child when she makes her angry; screams, smacks and pinches the child; has bitten the child twice; and force feeds the child her own vomit. She is also reported to have told Red Cross workers a few days earlier that she slapped, bit and pinched the child.
5. The child was referred to the Child Protection Unit of the hospital by medical staff and on 16 February 2013 care of the child was assumed by the Minister of Family and Community Services. On 2 December 2015 the District Court of New South Wales allowed an appeal brought by the applicant's sister who sought placement of the child with her. The child has remained in the care of the applicant's sister since that time. CYP sees her child regularly and hopes to transition this child into her fulltime care in the future.
6. It is of relevance in this matter that the applicant gave birth to the child after becoming pregnant following a traumatic sexual assault in Nigeria. She arrived in Australia on 14 June 2012 intending to terminate the pregnancy but was unable to do so at seven months' gestation. It is asserted that following the birth of the child the applicant reported experiencing Post Traumatic Stress Disorder, depression, isolation, adjustment disorder and financial stress, and that she was unskilled at parenting.
7. The respondent submitted that the applicant has subsequently denied that she hit, bit or injured the child, claiming that she only made the statements in order to get assistance. The respondent asserts that this raises questions about her level of insight into her offending conduct and her willingness to take responsibility for her actions.
8. Under cross-examination the applicant stated that she tapped her daughter lightly on her face with two fingers if she fell asleep during feeding her with a bottle. She denied slapping her daughter on the face and said that she grabbed her under the left armpit, not by the arm. The applicant asserted that the information she gave to the Red Cross and others about abusing her daughter was untrue and given in order to seek help because she was unable to buy food for her baby, wanted to live somewhere other than with her sister, and did not have a Medicare card. She told us during the hearing that she could not recall to whom she spoke at the hospital and that she did not recall saying that she had bitten, hit, pinched or punched her daughter to staff at the hospital or from the Department of Family and Community Services. However she acknowledged that she 'may' have said something similar to this. The applicant asserted that she did not know that it was not appropriate to carry a baby by the armpits.

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

1. The matters of concern are alleged to have commenced following CYP's discharge from hospital following the birth of her first child in August 2012. The assault upon the child that resulted in the common assault charge occurred on 15 February 2013.
2. The applicant has no other matters on her criminal history.
3. The applicant has provided evidence that she has engaged in a number of parenting courses and counselling programs. She has commenced studying to become a registered nurse but has suspended her studies to take care of her second child who was born on 16 March 2017.
4. The applicant asserts that her personal circumstances have improved since the offences were committed. In her statement she claims to have been in a supportive and stable relationship for over four years and to have married on 8 April 2014. She now lives in Queensland and sees her husband every second month because he has work commitments in Far North Queensland.
5. Under cross-examination the applicant was asked to clarify contradictory information about her marital status. Ms Dart submitted that a referral from Bankstown-Lidcombe Hospital on 17 October 2016 records that the applicant is single and that the 'father of the baby (the second child) not in the picture' (Exhibit R3, page 154). Ms Dart further noted that the intake form for CatholicCare Pregnancy Counselling Support program dated 1 November 2016 in relation to the applicant's marital status records her as 'never married' (Exhibit R3, page 144). The applicant asserted that the discrepancy arose because although she is legally married in Australia, she has not participated in a traditional African wedding ceremony and, as such, does not consider herself to be married.
6. The respondent raised concerns about the accuracy of the information placed before the Tribunal in relation to an assessment by the Department of Child Safety in Queensland following the birth of the applicant's second child as a result of the applicant's alleged lack of candour with this agency. Ms Dart submitted that records indicate that the applicant did not report truthfully to the caseworkers who visited and that, in particular, she told the workers that she was not convicted of the offences for which she was charged. She also denied that the allegations were true and stated that she agreed to have her first child live with her sister due to her lack of financial stability and stable accommodation.
7. The respondent submitted that these records raise concern as to the candour of the applicant, the accuracy of the information before the Tribunal and whether or not the applicant's circumstances are as stable as she has sought to portray.
8. The applicant responded that she had told the caseworkers the truth; that she had received a 12 month good behaviour bond but no conviction. With respect to whether or not she had denied that the allegations were true, the applicant stated that she did not talk to them for long and that she could not recall whether or not she had told them that the allegations were not true.

The age of the person at the time the offences or matters occurred

1. The applicant was 22 years old at the time the offences took place.

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

1. The victim was an infant aged between 0 and 6 months at the time of the offending conduct.
2. The infant was very vulnerable as she was the applicant's daughter and totally dependent on her to meet her needs.

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

1. The difference in age between the applicant and the victim was 21 years. The victim is the daughter of the applicant.

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

1. The applicant knew that the victim, who is her daughter, was a very young child.

The person's present age

1. The applicant is now 27 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The trigger offences are the only matters on CYP's criminal record.
2. The conduct of the applicant since the offences occurred is outlined in paragraphs [36] to [43] above.

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

1. The applicant asserts that she has undertaken a number of voluntary programs to assist her to gain insight into her offending and to develop strategies to manage these. These are stated to include: 1. Circle of Security Parenting course; 2. Keeping the Children Safe program; 3. Torture and trauma counselling program; 4. Anglicare Hope Counselling program; and 5. Pregnancy Counselling and Support program.
2. The applicant provided three reports from consultant forensic psychologist, Tim Watson-Munro. She stated under cross-examination that she has seen Mr Watson-Munro for him to 'check' her and that she has undertaken counselling at Catholic Care and STARTTS.
3. Mr Watson-Munro provided evidence by telephone. He stated that he saw the applicant on five occasions; 17 February 2015, 24 February 2015, 10 March 2016, 22 April 2016 and 27 April 2017. He has written three reports dated 22 March 2015, 29 April 2016 and 11 May 2017.
4. Under cross-examination Mr Watson-Munro confirmed that he interviewed the applicant for the purposes of assessment and to write reports. He has not seen her for counselling or therapeutic intervention. Mr Watson-Munro stated that when he wrote the report in 2015 he was not aware that the applicant had been convicted of the offence with which she was charged but that he now understands that she was convicted but dealt with under a section 10 bond. There was some confusion as to when Mr Watson-Munro became aware that the applicant had been found guilty of the offence.
5. Mr Watson-Munro stated that the applicant has consistently maintained that she did not harm her first child. He confirmed the view presented in his report that, as she presented on 27 April 2017, she did not present a risk to children. Mr Watson-Munro stated that CYPs denial of her actions was considered in forming his view, but that this was outweighed by there being no subsequent issues and CYP's efforts to "work hard to restore her credibility".
6. Mr Watson-Munro gave evidence that the applicant did not mention having a partner when he saw her in 2016. When it was put to Mr Watson-Munro by Ms Dart that the applicant had referred to herself as single in the referral to CatholicCare in late 2016, he expressed surprise, stating that she had portrayed a happy picture to him with respect to her relationship with the father of her second child. He formed the view that the relationship was long term and stable and that the applicant intended to enrol at James Cook University in Townsville to be with her partner.
7. Mr Watson-Munro opined that the applicant was clearly suffering from severe depression and an adjustment disorder following the rape and that there is a nexus between this, her mental state and the attention-seeking behaviours she engaged in. He believes she has improved a great deal and that there is no current indication of depression and nothing to indicate a gross psychiatric disturbance. Mr Watson-Munro is of the view that the applicant made false statements to hospital staff because she was desperate and making a 'cry for help'. She was a young mother with no support and no housing who thought, albeit stupidly, that this was the best way to elicit support. The applicant has told him that she has learned better mothering and impulse control, and the need to reach out if she is not coping. When asked to comment about the report in the Assessment Summary completed by STARTTS on 17 December 2013 (Exhibit R3, Tab 4) that the applicant had reported auditory hallucinations, Mr Watson-Munro stated that this was not disclosed to him and that "the relevance of such a symptom would depend on the context". He reported that he has not observed any psychotic symptoms when he has seen the applicant. The applicant is immature but he has not detected any personality disorder. He concluded in re-examination by stating that in his opinion the applicant 'has moved on', now has supports in place, and the structure of tertiary study.
8. The respondent acknowledges that the applicant has taken some steps to address her offending conduct and has sought to address her underlying trauma through counselling.
9. However the respondent submits that there is concern about the accuracy of the information provided by the applicant about her improved personal circumstances. The respondent also expresses concern about the applicant's continued denial of the offending conduct which led to the common assault charge and the removal of the child from her care. The respondent asserts that this could indicate a lack of insight on the part of CYP into her offending conduct which, in turn, calls into question the extent to which she has addressed the issues.

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

1. CYP provided character references from a pastor at a church regarding her undertaking voluntary child minding during sermons from August 2012; from a pastor at a church she has attended in Queensland and from an academic at a TAFE college she attended.
2. The applicant also provided evidence of her participation in counselling conducted through Anglicare and STARTTS and various parenting courses in which she has participated.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian did not raise any other matters.

Section 30(1A) factors

1. The applicant submits that a reasonable person, knowing what she had experienced at the time of committing the triggering offences, and the actions she has taken subsequently to address the issues, would allow her direct and unsupervised access to children in the course of her work.
2. It is also submitted by the applicant that it is in the public interest for the applicant to be granted a working with children clearance because she is otherwise barred from working in an industry in which there is a significant shortage of personnel to the detriment of the community.

Consideration

1. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
2. The key issue to be decided is whether the applicant, at this time, poses a real and appreciable risk to the safety of children. The Tribunal must have regard to the matters set out in section 30 of the Act together with any other relevant matters. In assessing whether the applicant poses a real and appreciable risk to the safety of children, the Tribunal considers both the probability of reoffending and the nature of the conduct. Consideration must be given to all relevant facts including the nature, frequency, incidence and recentness of any relevant conduct, together with the actions taken by the offender to implement risk management strategies. As the Tribunal noted in BQU v Children's Guardian [2015] NSWCATAD 121: In practical terms, unless the evidence provides a real satisfaction that a person's offending conduct was atypical and most unlikely to be repeated, there will always be some apprehension that the person may re-offend.
3. The conduct that triggered this assessment is serious. It is accepted that the applicant suffered serious trauma as a result of being sexually assaulted and the resulting unwanted pregnancy, following which she moved to a new country with limited supports and financial hardship. However she did not acknowledge the inappropriateness of the conduct that resulted in the criminal charges being made, but sought to minimise the seriousness of her actions. Rather than demonstrating an awareness of the inappropriateness of her behaviour, the applicant asserted that she had not hurt her child. We did not find it plausible that she had simply tapped the child on the cheek; or that she had lifted the child from the pram by her underarm. It that had been the case, it is highly unlikely that the hospital staff would have involved child protection services. She appears to lack insight into the potential harm that her behaviour may have caused her child.
4. We found it unlikely that the applicant invented the stories about the abuse allegedly perpetrated on her child in order to obtain assistance, particularly given that she told us that she had not sought help in a more appropriate manner first.
5. Although there is evidence that the applicant has undertaken some counselling and educational programs about parenting, there is no evidence before us about whether or not these programs were effective in dealing with the underlying issues the applicant claims led to her behaviour, or in improving her parenting skills.
6. We agree with the respondent that the references provided by the applicant do not greatly assist her case. The academic from TAFE was unaware of the trigger offences and has not observed the applicant working with children; the pastor from Queensland does not appear to have observed the applicant working with children; and the report of the pastor in New South Wales is very brief.
7. We considered carefully the evidence provided by Mr Watson-Munro. The weight we gave to his evidence was reduced because he has not been engaged in a therapeutic relationship with the applicant. We also note that his opinion is largely formed on the basis of the information provided to him by the applicant, which may have been selective.
8. We agree with the respondent that the inconsistencies in the reports by the applicant about her marital status, although not of significant relevance to the matters at hand, cast some doubt on her truthfulness generally. She acknowledges that she is legally married in Australia and, even if she does not consider herself to be married according to African custom, it is difficult to understand why she told agencies in Australia that she is single. These inconsistencies raise concerns about the stability of her personal situation, and whether, if she is placed again in a situation of stress, there may be a repetition of offending conduct.
9. Given that the applicant does not have custody of her first child, we are not satisfied that a reasonable person would allow his or her child to have direct and unsupervised access with the applicant in the course of child-related work. We are also not satisfied that it is in the public interest for the applicant to be granted a clearance to work with children. The paramount concern of the scheme provided by the Act is the protection of the children from abuse.
10. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and that the decision under review should be affirmed.

Order 1. The decision of the Children's Guardian dated 28 November 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed.

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: 07 November 2017