DAN 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.
2. 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 5 November 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 relied upon the following documentary material: 1. Application for review lodged on 4 April 2017 attaching the notice of final decision of the Children's Guardian and Reasons for Decision dated 8 March 2017 - Exhibit A1; 2. Letter of support from a friend filed and the report of Mr Bradley Jones, Forensic Psychologist, dated 27 July 2017, both filed on 14 August 2017 (signed letter tendered at hearing on 6 December 2017 - Exhibit A2; 3. Letter of support from second friend dated 22 March 2016 tendered at hearing on 6 December 2017 - Exhibit A4.
2. The applicant gave oral evidence and was cross-examined on 13 November 2017 and 6 December 2017 by Ms McDonald, counsel for the respondent. The applicant also answered questions put to her under re-examination by her counsel, Mr Brezniak.
3. The applicant's brother provided a letter of support dated 20 January 2017 (included in Exhibit R1, part 1 filed by the applicant). He gave oral evidence and was cross examined on 13 November 2017.
4. 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 22 May 2017 Volume I comprising 268 pages - Exhibit R1 part 1; 2. Respondent's Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 22 May 2017 Volume II comprising 601 pages - Exhibit R1 part 2; 3. Further documents filed by the respondent on 6 September 2017 comprising 131 pages - Exhibit R2; and 4. Schedule of Incidents - Exhibit R3; and
5. The applicant filed written submissions (for convenience referred to as Exhibit A3).
6. The respondent filed written submissions on 19 October 2017 (for convenience referred to as Exhibit R4).

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 (2) (a) of Schedule 1 to the Act.
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 presented

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. The 'trigger offences' were charges of AOABH and wounding a person with intent to cause grievous bodily harm. The victim in relation to these trigger offences was the applicant's 13 year old brother who required four stitches as a result of being cut by a large kitchen knife wielded by the applicant on 20 January 2010. The incident occurred in the context of numerous arguments with family members over a weekend, during which it is also alleged that DAN assaulted her mother and threw plates at her sister.
2. The applicant was also charged with recklessly wounding another person in relation to the offence and an urgent apprehended violence order was sought and granted.
3. The charge of wound person with intent to cause grievous bodily harm was withdrawn at the Liverpool Local Court on 12 May 2010 for reasons that are unknown. When the balance of the charges were brought before the Court on 5 May 2011 several prosecution witnesses did not attend and the Magistrate dismissed the charges on the basis that no evidence had been led by the prosecution.
4. The applicant told us that she did not intend to hurt her younger brother in 2010. She stated that the family was preparing for a barbecue and that a dispute took place. Her brother 'ran in from outside' and was accidentally sliced by the knife with which she was cutting parsley. The applicant told us that there was a lot of disharmony at home when she was growing up as a result of her and her brother being sexually assaulted by a cousin who she stated tried to touch her under her netball skirt, succeeding on a couple of occasions. She stated that she had not disclosed the abuse earlier in the proceedings because she had not felt comfortable doing so until the assessment with Mr Bradley Jones, the forensic psychologist who assessed her on 12 July 2017.
5. In addition to the matters that triggered the assessment, DAN was charged and convicted of common assault in relation to incidents that took place on 7 December 2013. It is alleged that at about 2.20am DAN drove her car at a speed of approximately 60 kilometres per hour towards her estranged husband (victim 1) and 17 year old girlfriend (victim 2). DAN's two year old child was in the back seat of the car. She then got out of the car and approached the victims with a large butcher's knife in her hand. The police attended following a phone call from victim 2 but were informed by DAN and victim 1 that 'nothing had happened'.
6. At about 2pm on the same day (7 December 2013) it is alleged that DAN returned to the property occupied by her estranged husband and his girlfriend and created further disturbance, including breaking a window. The police were again called and on 10 December 2013 the applicant was charged with two counts of destroy or damage property; two counts of common assault; aggravated breaking and entering; and committing a serious indictable crime while people were present; assault occasioning actual bodily harm; two counts of stalk or intimidate intending to cause fear or physical or mental harm; and two counts of knowingly drive motor vehicle in a manner that menaces another person.
7. The charges relating to the 2013 incidents were heard on 5 May 2014. The applicant pleaded guilty to one charge of common assault (punching her husband in the nose and face) and one charge of destroy or damage property. In relation to the charge of common assault the applicant received a six month bond pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. In respect of the charge of destroy or damage property the charge was proven and dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The other charges were withdrawn.
8. The applicant asserted that she attended her husband's home in the early hours of 7 December 2013 at her husband's request because he wanted her to tell his girlfriend to leave. She told us that her child was in the car at 2am with her because she had been to an event and then 'picked him up'. She denied that the child was upset and crying. The applicant asserted that the girlfriend made up the allegation about the knife because she knew about the incident with the applicant's brother when a knife was involved. She denied banging on the front door but admitted assaulting her husband and throwing a glass against the window.
9. Under cross examination the applicant stated that she was unable to recall most of the incidents of concern outlined by the respondent in Exhibit R3. She denied that this was because there were a great number of incidents. She acknowledged having an altercation with her brother two years ago which resulted in police involvement and said that 'siblings fight all the time, its normal'.
10. Although the applicant was not convicted of the trigger offence which took place in 2010, the respondent asserts that the incident is serious because the applicant slashed the arm of her brother with a knife resulting in injury. The respondent also asserts that during the 2013 incident, although this was not child related, the applicant endangered her child by driving at speed towards another person while the child was in the car. The Children's Guardian expresses concern that both the 2010 and 2013 incidents involved the applicant threatening others with a knife.
11. The applicant's brother gave evidence and was cross-examined. Counsel for the respondent questioned him about the letter he is purported to have written to the Children's Guardian. He stated that he was contacted by the Children's Guardian 'multiple times' and 'asked to provide a reference'. He stated that he was unable to recall incidents of violence within the family put to him by Ms McDonald. In relation to the trigger offence, he stated that his sisters argued all the time and that the family was estranged from their extended family as a result of the sexual abuse issues. He stated that he was 'sliced accidentally' by the applicant and that he was 'in the middle of a scramble'. He said that he was running up and down the hallway when the incident took place

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

1. The trigger event occurred in January 2010, almost 8 years ago.
2. Since that time the applicant has had one conviction for common assault and the withdrawn charges pertaining to the events on 7 December 2013.
3. The applicant is also alleged to have been involved in a number of violent episodes involving her family or origin; her husband and his girlfriend; neighbours and a stranger as set out in the schedule prepared by the respondent (Exhibit R3).
4. There was a report to the Department of Family and Community Services (FACS) in May 2016 outlining concerns for the applicant's son due to homelessness following the applicant's refusal to accept an offer of public housing and continuing to sleep in a car with her son. In August 2016 her son's school reported to FACS that the child said he had been smacked and hit with a wooden spoon by the applicant. Concern was also expressed about the child's poor school attendance record. The applicant denied the allegations. In relation to the first incident she stated that the accommodation proposed by NSW Housing did not meet her and her child's needs. In relation to the second incident she said it was made by her son's kindergarten teacher because she asked that the child not participate in Christmas and Easter activities because he follows a different religious faith. She asserted that she has provided medical certificates in relation to the alleged absences of her child from school.
5. In September 2016 the applicant had an altercation with a neighbour of her husband when she arrived at his home at 3am and is alleged to have made excessive noise. In December 2016 there is also reported to have been conflict between the applicant and a neighbour of her husband. The applicant asserted that the neighbour has schizophrenia and that she called the police because the neighbour threatened her with a gardening tool and threw a rock which resulted in the neighbour being hospitalised.
6. The respondent asserts that the applicant has anger management issues and does not take appropriate steps to avoid situations which may escalate into violence.
7. The respondent argues that although the applicant states that she was experiencing severe depression and anxiety at the time of the matters that caused the assessment, and that she has since then engaged in professional counselling and changed, there are reports of violent episodes as recently as 2016 and February 2017.

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

1. The applicant was 20 years of age at the time of the trigger offence. She was 24 years of age at the time of the incidents in 2013.

(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 brother was 13 years of age when wounded with the knife. He was vulnerable given that he was 7 years younger than the applicant who was an adult and his older sister.

(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 7 years older than her brother.

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

1. The applicant knew that her brother was a child.

(g) The person's present age

1. The applicant is now 28 years old.

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

1. The applicant has not been charged with any criminal offence since December 2013. Her criminal record comprises one conviction for common assault and a conviction for driving while her licence was suspended. The respondent concedes that the applicant has a relatively minor criminal record which weighs in her favour, but asserts that she has reportedly been involved in a number of violent episodes since December 2013 and that this, together with her history, is sufficiently serious to give rise to a real and appreciable risk to the safety of children.
2. The applicant told us that she returned to live with her family of origin, (including her brother who was the victim of the trigger offence) in August 2017. She married in 2010 and has had four separations from her husband, including the current one. The applicant stated that she and her husband have a 'good marriage and relationship' but do not live together because her husband had a motor bike accident as a result of which he lost two organs and has post-traumatic stress disorder, anxiety and depression. Although they 'get along' and co-parent their child, she prefers to live apart from him so that he can 'seek the help he needs'. The applicant asserted that her relationship with her parents is now excellent, but acknowledged that this has not always been the case.

(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 applicant states that she received counselling from Ms McQueen, registered psychologist, between November 2015 and November 2016. In a letter dated 8 May 2017 Ms McQueen states that the applicant has demonstrated insight into her presenting issues and that she has been taught stress and anger management strategies.
2. In oral evidence the applicant told us that the challenges of caring for her son who has a disability have assisted her to develop the skills to care for children. She also told us that she has learnt strategies to manage her anger (which she acknowledged is an issue) and that she employs breathing techniques and 'thinks twice' before acting or responding.
3. The applicant was assessed by Mr Jones on 12 July 2017 as being at low risk of engaging in violent behaviours towards children or adults. During her session with Mr Jones the applicant disclosed that she had been sexually assaulted by a family member and that this had caused considerable conflict within her extended family.
4. The Children's Guardian noted that Ms McQueen does not opine on the applicant's suitability to work with children. The respondent also questioned why the applicant had not disclosed earlier that she had been subjected to sexual assault.
5. During cross-examination by counsel for the respondent Mr Jones stated that there was nothing to indicate to him that the applicant's assertion that she had been sexually assaulted was 'a concoction'. He opined that she may not have disclosed it previously because of embarrassment and cultural issues. Mr Jones stated that violence within a person's family may increase the person's propensity to be violent if the person incorporates such behaviours. He believes that it may be reasonable to assume that somebody may have extinguished a propensity to violent behaviours after a period of four to five years has elapsed without incident, but that this is difficult to predict and depends on the individual.
6. The respondent put to Mr Jones' that his assessment was based on the erroneous belief that the applicant's behaviours were limited to her family and ignores the violence directed at the girlfriend of her estranged husband; neighbours; and a stranger in a car park.
7. Mr Jones stated that he was not aware of the incidents which occurred outside of the applicant's family and conceded that his assessment of the applicant would be impacted by the knowledge that she had been involved in violent incidents with non-family members. He stated that whether or not it would increase the risk she poses would depend on the reported events. If the incident regarding the applicant slapping her child is true, Mr Jones opined that this would increase her assessed level of risk. He noted that it is generally accepted that exposure to violence is detrimental to both adults and children.
8. The respondent argued that there is no reason to dispute the reports of the police and FACS about the applicant's behaviour and that the applicant needs to demonstrate a significant period of time without involvement in violent incidents before being permitted to work with children. The applicant pleaded guilty to assaulting her husband and it is alleged that she has recently hit her child. The respondent submitted that the applicant is either lying about not recalling violent incidents or that they are so frequent that she has normalised them and is unable to differentiate one event from another.
9. The respondent also submits that the applicant has not sought treatment for her alleged sexual abuse and that her violent behaviours mirror those of her parents. The respondent outlined concerns about the protective factors assumed by Mr Jones, many of which Ms McDonald challenged on the basis that the applicant had not been truthful with him.
10. Counsel for the respondent submitted that the letter purportedly written by the applicant's brother to the Children's Guardian was written by the applicant. She asserted that the letter is in the same font, contains the same spelling error, and follows the same themes. The brother asserted that the letter was written following multiple phone calls from the Children's Guardian whose records evidence only one call to him.
11. Counsel for the applicant submitted that the applicant presents as a 'composed, careful applicant who properly regretted things in her past', and that 'she comes from a family in the Western Suburbs, where, like everywhere, there is lots of interpersonal intra-familial conflict'. He asserted that there is nothing to demonstrate that she is incapable of caring for children and that she also cares for her husband who 'has a passion for lavish cars and who has a disability'. He submitted that she shows 'the maturity to deal with things in her past'.
12. In relation to the trigger offence and other incidents of concern, counsel for the applicant noted the 'ebullient warmth' of the applicant's brother for her and that no conviction was recorded in relation to the trigger offence. In relation to the 2013 matters, counsel argued that 'no notice should be taken of the number of charges' and that 'what resulted was a conviction for assault' which 'occurred in extraordinary circumstances' after an 'interpersonal shock'. He further argued that neither the 2010 nor the 2013 incidents are serious and that they are not recent matters.

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

1. The Tribunal had before it the report from Mr Jones and as a result of the issue of a summons, material provided by Ms McQueen. The applicant and her brother each provided written statements to the Tribunal and letters of support were provided by two friends of the applicant.

(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.
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 cut the arm of her brother requiring him to have four stitches in circumstances which we are not satisfied were wholly accidental, despite the applicant's and her brother's assertions that this was the case. If the incident was indeed an accident, it seems unlikely that the applicant would have been charged by the police and subjected to an apprehended violence order which required her to live somewhere else.
4. While we are unable on the evidence before us to make a positive finding about the incident which took place in 2010 when her brother was cut, we cannot reject the possibility that the applicant deliberately sliced her brother with a knife as groundless. There remains more than "a lingering doubt" that her actions were deliberate 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.
5. 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.
6. We found the applicant to be an unreliable and evasive witness. As counsel for the respondent submitted, the applicant's inability to remember incidents of concern put to her suggest that either there were so many events that she could not recall specific ones (which she denied), or that she did not perceive situations which involved the police to be serious, and hence had normalised and forgotten them. She demonstrated little understanding or insight of the impact of family violence on children and the need for protective strategies and believes that the frequent involvement of police in domestic situations is not unusual.
7. We shared the concerns of the respondent that the letter purportedly written by the applicant's brother was actually written by the applicant. The brother's evidence that the letter was written after he had been contacted several times by the Children's Guardian was not supported by the written records of that office. We agreed with the respondent that the spelling mistake in both letters suggested that the letter was written by the applicant, given that her brother spelt the word correctly during the hearing.
8. There were inconsistencies in the evidence given by the applicant. When asked to outline the nature of the sexual abuse to which she had been subject, she told us that her cousin 'touched her a couple of times' but in the report of Mr Jones it is stated that she 'admits to having engaged in certain sexual activities after being convinced that such behaviours were appropriate'.
9. We are concerned that the applicant has not engaged in therapeutic treatment for the sexual assaults to which she was subjected. Given that she attributes the violence in her family to issues relating to her and her brother's sexual assault, this would seem important as without treatment the risk of her again engaging in aggressive behaviour is likely to be increased.
10. The weight we placed on the report of Mr Jones was reduced as a result of it being written on the basis of the false premise that the applicant's violent behaviour had never been directed at individuals outside her immediate family.
11. Since the incident which took place in 2010, the applicant has been involved in a number of violent situations involving a range of people. At times her son has been present, including at a time when one would expect a young child to be in bed asleep, not in the back of a car while his mother is engaged in a serious altercation. It is of concern to us that the applicant stated that 'siblings fight all the time', with no apparent awareness that fights that involve the police are not considered to be a normal occurrence by most people.
12. We do not accept the submission of Mr Brezniak that we should only consider incidents that are proven. As outlined above, this is not what the law requires of us. We are required to consider any conduct which we believe is relevant and 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].
13. The evidence before us is of an extensive history of domestic violence involving the applicant's family of origin, her extended family and her husband, and of violent incidents involving neighbours of her husband, his girlfriend and strangers in a car park. The applicant has a history of difficulty in managing her anger and emotions in stressful situations which has resulted in the involvement of the police as recently as February 2017. Her ability to care for children is not the issue before the Tribunal; we are required to determine whether or not she poses a risk to children if she engages in child-related work.
14. We noted the two letters of support from friends of the applicant but did not place significant weight on them given that they are from people who were not subject to cross-examination and who are friends of the applicant.
15. 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

1. The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 8 March 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: 24 January 2018