CZQ v Children's Guardian

Do the 2015 amendments to the Act apply?

1. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making her application to the Respondent. The additional test that is provided by s 30 (1A) is: (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. The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The Applicant lodged her application for a Working with Children Check clearance on 9 September 2014 before the amendments commenced operation and as a result the amendments do not apply to these proceedings.

The evidence relied upon in the hearing

1. The applicant provided two statutory declarations and a number of references. She filed written submissions on the day of the hearing. After initially indicating she did not intend to give oral evidence, the applicant changed her mind. She gave oral evidence and was cross-examined on 9 October 2017 by Ms Douglas-Baker, counsel for the respondent. The applicant also answered questions put to her under re-examination by her counsel, Ms Keys.
2. The respondent relied upon the following documentary material: 1. Respondent's Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 27 April 2017 comprising 489 pages - Exhibit R1; and 2. Further documents filed by the respondent on 23 June 2017 comprising 523 pages - Exhibit R2.
3. The respondent also relied upon updated submissions filed on 25 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 applicant was the subject of a risk assessment triggered by clause 1 (4) of Schedule 1 to the Act because of offences for which she was found guilty.
7. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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. The evidence is considered below under subheadings that refer to the considerations under section 30(1) of the Act.

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

1. In the Reasons for Decision and Submissions of the Respondent the respondent asserts that the documents before the Tribunal disclose a pattern of physical and verbal abuse in a domestic context perpetrated by the applicant towards her daughter and her late mother. The respondent notes that the applicant has been the defendant in 11 Apprehended Violence proceedings concerning her daughter and 11 concerning her late mother.
2. The applicant was found guilty without conviction of Common Assault in March 2003 following an incident in May 2002 when she struck her eight year old daughter on her right arm twice with an open hand. Charges of Assault Occasioning Actual Bodily Harm and Take Action that results in Physical Injury were withdrawn.
3. The respondent asserts that the incident is serious not only because the applicant was found guilty of assault on her own child, but also because the child complained of soreness to her arm immediately but did not receive medical treatment until two days later when she was taken to the doctor by her grandmother. Medical tests indicated traumatic injury to the joint. The respondent asserts that the mother refused to provide an explanation of the injuries or to allow the child to remain in hospital for further tests which casts doubt on the applicant's ability to act in a protective manner towards her child.
4. Under cross examination the applicant stated that the trigger incident took place shortly after she returned home following the death of her step-father. Her daughter and a friend were 'running amok' and wanted her to entertain them. She said that there was an argument and that she 'tapped' her daughter with two fingers as a result of which her daughter banged her elbow on a surfboard which resulted in the injury. The applicant told us that there was no swelling, bruising or other indication that medical treatment was required and the event took place on a weekend. As a result her daughter was not taken to the doctor until the Monday following, which she stated was the first available appointment. The applicant said that the injury identified was pre-existing and did not result from the incident which triggered these proceedings.
5. In written submissions the respondent refers to the applicant being the subject of two complaints made by Year 8 high school students in relation to the applicant's disciplinary methods and management style while she was employed as a casual teacher. Under cross-examination the applicant admitted to moving a chair to prevent a child from sitting on it and agreed that she knocked the hat off the child, but stated that she did not hit him on the head. The applicant asserted that the child had a relative working at the school as a result of which 'he had leverage'.
6. In relation to a second classroom incident when she was accused of being confrontational, the applicant stated that the classroom was "in riot" and she did what she believed was necessary to regain control. Somewhat surprisingly, under cross-examination the applicant stated that "there were more than two incidents". However she then stated that there were only two complaints and that casual teaching is very difficult work which required her to be in the "frontline" of challenging classroom situations.
7. The respondent also asserts that the applicant has a long history of alleged drug use and that there have been a number of allegations of her intimidating people and preventing them from reporting or pursuing complaints with authorities, including her daughter. Under cross-examination the applicant stated that her use of marijuana is 'historic' and that she does not consume alcohol because she is "allergic to the fermentation process in wine and beer".
8. The applicant was asked about an incident in September 2009 when her daughter approached the police and made enquiries about how to get her mother (the applicant) "sectioned" (involuntarily detained in hospital as a result of having a mental illness). The applicant alleged that her daughter was using and selling marijuana but told the police that she had been coerced into obtaining drugs by her mother. The applicant told us that she was assaulted by her daughter who abused alcohol and was expelled or refused entry from a number of schools which resulted in her being home-schooled. The applicant stated several times that her daughter has achieved considerable success since then and is now a qualified nurse. She asserted that she has regular ongoing contact with her daughter.
9. The applicant was asked about a number of reported incidents involving her mother and her daughter that are documented in the material before the Tribunal. The applicant told us that the Apprehended Domestic Violence Orders (ADVO's) were "all about my daughter taking control as a result of her anorexia" and that her mother and daughter, "who manipulated her grandmother wanted to control everything". She asserted that allegations that she had assaulted her mother were inconsistent with her mother "choosing" her as her carer.
10. The respondent notes that following the trigger offence the applicant was listed as the defendant in a number of interim ADVOs. The respondent submits that: The applicant's history of interpersonal violence and domestic abuse is significant and concerning. The applicant's history of physical, verbal, emotional and psychological abuse of her daughter … is likewise significant and concerning.
11. During cross-examination counsel for the respondent asked the applicant to explain the events alleged to have taken place at the workshop of a person described as her husband in a report produced by NSW Police in response to a request under section 31 of the Act [Exhibit R2, Tab 1, page 8] to which she sarcastically responded "wow". The applicant asserted that she was physically assaulted by a number of persons during an incident that took place as a result of her objecting to them using her partner's garage to undertake repairs at no cost. The report of the Police states that the applicant attacked the four victims, including the 16 year old boy because she was angry. The applicant did not deny that she had bitten the 16 year old boy on the arm, but said that she did so to prevent herself "being suffocated to the extent where I could have been murdered".
12. The applicant was also asked a number of questions about the allegation that she did not seek appropriate treatment for her daughter's anorexia. She denied that this was the case and stated that one of the reported incidents of concern occurred when she refused to allow the child to remain in hospital because the facility did not have expertise in the treatment of anorexia. She denied that her actions were was as a result of her controlling behaviour towards her daughter.
13. The applicant acknowledged that, in addition to disagreeing with professionals in relation to her daughter's treatment for anorexia, she also fell out with people in the aged care sector when caring for her mother. She denied being the "common denominator" in such situations and said that the head of the aged care service involved in her mother's care told her that the care she had provided her mother was the "best she had seen in 40 years". Counsel for the respondent noted that there is no such claim made in the reference provided by the head of the aged care service. [Exhibit R1, Tab 1M, page 290]

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

1. The trigger event occurred in 2002, approximately 15 years ago.
2. Since that time the applicant has been charged with domestic related assaults and breaches of ADVOs.
3. In 2010 the applicant was charged with Common Assault of her daughter, (who was then 16 years old) and her mother. It was alleged that the applicant punched her daughter on her chin and spat in her mother's face during an altercation. The Common Assault charge in relation to the applicant's daughter was dismissed at court in 2010 but the applicant was convicted of the Common Assault against her mother and received a good behaviour bond. This conviction was quashed at Goulburn District Court in 2011.
4. In 2011 the applicant was found guilty without conviction of contravening an ADVO against her mother. In 2014 the applicant was again charged with Common Assault upon her daughter, then 20 years old, and of contravening an ADVO. Both matters were withdrawn at Court.
5. Since the 2002 trigger offence the applicant has been listed as the defendant on 11 interim, provisional or final ADVOs listing her daughter as the person in need of protection. Nine of these were while the applicant's daughter was a child under the age of 18 years and the latest ADVO expired in June 2016. The applicant has been listed as the defendant on 11 interim, provisional or final ADVOs in respect of her mother.
6. The respondent submitted that the nature and number of allegations made about the applicant's behaviour indicate a pattern of behaviour which raises concerns.
7. The information provided by the Department of Family and Community Services in relation to the applicant and her daughter is extensive and identifies a significant number of risk of harm reports from 1998 to 2010.
8. In an affidavit of Ms Renee Winter, a caseworker with the then Department of Community Services, dated 9 December 2008, it is stated that between 4 March 1998 and 29 December 2000 the Department received six risk of harm reports in relation to the applicant's daughter. The reports express concerns about a history of drug use by the applicant, her mental health, and inappropriate supervision of her daughter. [Exhibit R2 Tab 4 page 298].
9. In May 2002 an interim order was made placing the applicant's daughter under the care of the Minister for Community Services. In August 2002 she was returned to the care of the applicant.
10. In 2006 two further risk of harm reports were made to the Department in relation to the applicant's daughter, including an alleged sexual incident involving a Catholic priest and concerns that the daughter was frequenting an area known for prostitution.
11. There was a further notification in 2007 and in 2008 a report was received expressing concern about the applicant's daughter not having eaten for four weeks; the applicant and her daughter being homeless; and the daughter having had multiple sexual partners over the previous two years.
12. In 2008 further risk of harm reports were received relating to the daughter's disclosures that she had been sexually assaulted by numerous people including family members; alleged physical assaults on the applicant by her mother; and the daughter's anorexia nervosa
13. There are numerous reports of the applicant failing to provide medical treatment to her daughter who was diagnosed with anorexia (see for example Exhibit R2 Tab 4, page 494) and getting into conflict with professionals such as case workers. A Supreme Court Order for medical treatment was issued in 2008 as a result of the refusal of the applicant to provide consent for treatment for her daughter who was placed in the care of the Minister of Family and Community Services until 2011.
14. The respondent submitted that the applicant preferred her own views over those of professional medical staff involved in the treatment of her daughter's anorexia and that there is a pattern of her consistently disagreeing with medical and other professionals, who have no vested interest in a particular course of action. (Exhibit R2, Tab 4, page 121). The respondent believes that the applicant's disdain for professionals and authority figures raises concerns about the likelihood of the applicant reporting situations of concern to authorities, behaviour which would potentially pose a risk to children.
15. During the risk assessment process the respondent observed that the applicant indicated a negative view of the Department of Family and Community Services and other statutory agencies which raises concerns about her protective capabilities and/or willingness to report child protection matters to authorities whilst in child related employment.

(c) The age of the person at the time the offences or matters occurred

1. The applicant was 42 years of age at the time of the trigger offence. She was 54 years of age at the time of the most recent alleged offence in March 2014 and was 39 years of age at the time of the classroom incidents.

(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

1. The applicant's daughter was 8 years of age at the time of the trigger offence. Her late mother was 79 years of age at the time of the incident in 2010. The high school students involved in the classroom incidents were Year 8 students who are likely to be 13 or 14 years of age.
2. The applicant's late mother and daughter were both dependent on the applicant for care and protection and were therefore vulnerable.
3. The applicant was in a position of responsibility and authority in relation to the Year 8 students and was responsible for their welfare.

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

1. The applicant is 34 years older than her daughter. She was approximately 26 or 27 years older than the Year 8 students.

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

1. The applicant knew that both her daughter and the Year 8 students were children.

(g) The person's present age

1. The applicant is now 58 years old.

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

1. The respondent asserts that the applicant's history of offending and alleged offending and her abusive and neglectful pattern of behaviour is significant and "bespeaks an entrenched pattern of interpersonal physical, verbal, emotional and psychological violence". The respondent notes that the applicant was charged as recently as 2014 with assaulting her daughter and that, although the charge was dismissed, it is consistent with a pattern of behaviour over a period of 16 years.
2. Under cross-examination the applicant stated she had no involvement with the Department of Community Services prior to 2002. Counsel for the respondent noted that there are earlier reports from 1998 that the applicant had drug problems and that she was using speed and regularly smoking marijuana. She noted that in July 2000 (Exhibit R1, Tab 1E, p50) a report was made to the Department by an informer.
3. The applicant asserted that people in the housing commission where she lived were jealous of her and made complaints which were not properly investigated. She stated that "my experience is that DOCs (staff of the Department of Community Services) are serial liars".

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

1. The respondent asserts that there is no material before the Tribunal to demonstrate that the applicant has obtained counselling or sought any assistance to deal with her poor conduct or conflict resolution skills. She has attended any rehabilitation service to deal with her reported drug and alcohol use. The respondent submits that this, together with the applicant's hostility towards child protection agencies such as the Department of Family and Community Services, poses a risk of the applicant repeating the type of behaviour which has given rise to these proceedings. The respondent asserts that a repetition of such conduct, including in a classroom environment, creates a real risk that children will be exposed to physical or verbal violence and suffer physical, emotional or psychological harm.
2. Counsel for the respondent asked the applicant why she had not complied with the undertaking to seek counselling as required by the Order of the Children's Court [Exhibit R1, Tab 1A, page 17]. The applicant told us that that she attended once, but could not recall whom she had seen. She asserted that the counselling cost $100 per session which she could not afford, and that nobody suggested any service where she might be able to obtain assistance at less or no cost.
3. Counsel for the applicant submitted that there is no likelihood of a repetition of the behaviours which led to the refusal to grant a clearance to the applicant. She asserted that the trigger offence could not have been "serious" because the applicant received a section 10 bond, which cannot be given for a "serious" offence.

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

1. It is noted that the applicant provided positive references from staff who involved in the care of her late mother and from parents of students she has tutored.

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

1. The Children's Guardian did not make any additional submissions.

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 which triggered this assessment is serious. The applicant was found guilty of assaulting her daughter who was at the time eight years of age. We do not accept the submission of counsel for the applicant that her being given a 12 month good behaviour bond with no conviction recorded under section 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicates that the offence is not serious for the purposes of these proceedings.
4. The applicant does not admit to the trigger offence for which she was found guilty. She demonstrated no remorse and sought to minimise the seriousness of the incident and to attribute blame for what happened to her daughter and another child, rather than accepting responsibility. Her assertion that she simply tapped her daughter on the arm with two fingers as a result of which her daughter fell against a surfboard is not plausible.
5. In addition, there are reports of multiple events and situations where the applicant has got into serious conflict with others. This conduct is also relevant to our consideration of whether or not she poses a real and appreciable risk to the safety of children. There is a pattern of concerning behaviour by the applicant that has resulted in the involvement of a range of authorities. The applicant has been listed as the defendant in multiple ADVOs in relation to both her mother and her daughter; had her daughter placed in the care of the Minister for Community Services; had complaints made about her in the education system; has been the subject of Police involvement on numerous occasions; and her daughter has been the subject of a significant number of "risk of harm" reports made to the Department of Family and Community Services. Her lack of action in consenting to her daughter's treatment for a life threatening eating disorder ultimately resulted in an order of the Supreme Court for medical treatment being required.
6. The applicant denies responsibility for the reported incidents. While we are unable on the evidence before us to make positive findings about these additional incidents, we cannot reject the allegations against the applicant as groundless. There remains more than "a lingering doubt" that the applicant was responsible for at least some of the conduct which led to the involvement of authorities and it is now well established that where a "lingering doubt or suspicion remains" that the acts did occur, this will count against the applicant.
7. It is now accepted that, as stated by Beech-Jones J in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33]: …. NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.
8. We are required to consider whether or not, on all the information and other material before the Tribunal, the applicant may pose a real and appreciable risk to children: Office of the Children's Guardian v CFW [2016] NSWSC 1406 [23] to [24].
9. There is no doubt that the applicant has faced significant challenges in life; she has a daughter who has had anorexia and she has cared for an ageing mother. However it appears that the applicant has difficulty managing her anger and emotions in stressful situations and that she lacks insight. Rather, the applicant blames others and attributes responsibility to them and to staff of authorities who she says victimise her. She minimised the seriousness of events of concern and was defensive and dismissive of the Tribunal process. She also frequently went off on tangents rather than answering the questions put to her.
10. We agree with the respondent that the applicant's negative opinion of authorities may result in her not reporting issues of concern if she was in a position of responsibility for children.
11. The applicant's inappropriate conduct and behaviour appears to be longstanding. In the report of Ms Dianne Doratis, a clinical psychologist with the Children's Court Clinic who interviewed the applicant on 23 July 2002 in relation to her parenting capacity it is stated that: Although intelligent, [the applicant] appears to have little insight into her own emotional presentation. She is quite capable of articulating the reasons why this matter came to a head and expressed appropriate remorse for her actions. However she is very defensive and tends to minimise or deny the seriousness of events. This defensiveness also means it is difficult for her to address her own emotional problems and difficult to discuss the need for her to have greater emotional stability. [Exhibit R2, Tab 4, page 127]
12. There is no evidence before us to verify that the applicant does not currently use illicit drugs or excessive alcohol. Although the applicant denies recent use of excessive alcohol or illicit drugs, as recently as 2014 she came to the attention of the Police when concerns were raised about the applicant's "drug induced mental health issues". The "victim" was seeking to have the applicant admitted as an involuntary patient to a mental health facility following an altercation. [Exhibit R4, Tab 1 page 2]
13. The most recent of the ADVO's expired in June 2016, only 16 months ago. The applicant has not sought any counselling in relation to her apparent anger management issues and did not comply with the undertaking in the Order of the Children's Court that she do so. We do not consider her explanation that she could not afford counselling to be adequate as there is no evidence that she sought less expensive options. There is no evidence that the applicant has developed any risk management strategies to avoid a repetition of the concerning behaviour.
14. We noted the positive references of a number of people filed by the applicant but did not place significant weight on them given that they were predominantly from people who are friends or relatives of the applicant and none of the authors were subject to cross-examination about their views.
15. Counsel for the applicant suggested that the doctor who made the notification regarding the applicant's daughter may have been making a "vindictive complaint". Even if, as asserted by the applicant, she has at times been treated unfairly by authorities, given the wide range of concerning conduct reported by a variety of authorities and people, we cannot accept that the applicant is not responsible for any of the problematic behaviour. She has not provided adequate evidence that she does not pose a risk to children if she engages in child-related work.
16. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and that the decision under review should be affirmed.

Order The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 14 February 2017 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: 13 November 2017