DCY v Children's Guardian - [2019] NSWCATAD 274 - NSWCATAD 2019 case summary — Zoe

NSWNSWCATAD

DCY v Children's Guardian

[2019] NSWCATAD 274

NCAT Administrative and Equal Opportunity|2019-07-04

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2019-07-04

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Summary

The applicant, who will be referred to as DCY, applied for a working with children check clearance to enable her to work with children generally, and in particular to assist with the children's program at her church and to assist with activities at her daughter's primary school.
In 2014, the applicant was found guilty of one count of common assault against her then nine-month-old daughter, for which she received a conviction but no other penalty, in accordance with s10A of the Crimes (Sentencing Procedure) Act (NSW). Whilst being moderately intoxicated, the applicant was alleged have shaken her daughter in 2013 in an attempt to settle her. On the same night, the applicant punched the child's father and subsequently pleaded guilty to one count of assault occasioning actual bodily harm. No conviction was recorded in relation to the offence and the applicant was placed on a good behaviour bond for a period of eighteen months.
When, on 28 April 2015, the applicant applied for a working with children check clearance, the Children's Guardian conducted a risk assessment on the basis of the applicant's conviction for the common assault of her daughter. On 12 May 2017, just over two years after her application for a clearance, the Children's Guardian refused to grant the applicant a working with children check clearance.
On 9 June 2017, the applicant applied to this Tribunal for a review of the decision to refuse her a working with children check clearance.
At the hearing of this matter on 4 July 2019, just over two years after her application for review of the Guardian's decision, for the reasons set out below, we determined that the decision of the Children's Guardian should be set aside and that she should be granted a working with children check clearance.

[2]

[3]

Does the applicant pose a real and appreciable risk to the safety of children?

To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children's Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor subject to a risk assessment, the Children's Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012)
In this case, the Children's Guardian conducted a risk assessment because the applicant had been convicted of a Schedule 1 offence on 4 February 2014, being the common assault of a child pursuant to s61 of the Crimes Act 1900.
Whilst the initial risk assessment recommended that a working with children check clearance be granted to the applicant, this recommendation was overturned at a later case review meeting and the applicant's request for a working with children check clearance was subsequently refused. Before this tribunal, the Children's Guardian's position was neither to oppose nor to consent to the applicant's request for a working with children check clearance.
In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in refusing the applicant a working with children check clearance, namely: 1. the applicant's conviction for the common assault of her daughter; 2. the applicant's guilty plea to the assault occasioning actual bodily harm of the child's father; 3. the care history for the applicant's daughter; and 4. the applicant's mental health.
We have also considered the risk assessment report prepared for the applicant by Dr Penny Seidler.
We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

[4]

Common assault

In July 2013, the applicant met up with friends for a get together prior to her moving interstate. She explained that she was a single mother and did not have alternative care for her daughter, and so brought her then nine-month-old baby with her to the function, which commenced in the afternoon.
In the evening, the applicant returned home to feed and bath the baby before meeting up with her friends at a bar. The baby slept on her shoulder for some time but later woke and became unsettled. To try to settle her, the applicant lifted the child up and down in front of her. The owner of the bar, who was a friend of the child's father, became concerned that the applicant had shaken the child and rang the child's father to inform him of his concerns.
The applicant then left with the child where she encountered the child's father filming her on his mobile phone as she left the bar. She took the phone from his hand and threw it down the street. An argument ensued (see below). A member of the public took the child from her pram to the local police station - which was across the street and less than 100 metres away. The applicant went to the Police Station seeking her child, where she agreed to participate in an electronic interview.
The child was taken to hospital for testing. There was no medical evidence of injuries to the child consistent with being shaken and there was no evidence of any previous injuries to the child.
In notes taken by the NSW Department of Community Services (DOCS) on 10 July 2013, the applicant told DOCS officers that she shouldn't have brought the baby to the bar: [She] was getting grisly. Stayed out because I was leaving...the next day. I lift her up and it calms her down. Throwing her up in the air makes her happy. I was shocked I was accused of shaking my baby, I would never do that.
In a medical report prepared for the child on 15 July 2013, Dr Dimitra Tzioumi, paediatrician made the following findings: Medical assessments did not find any acute injuries or evidence of previous injuries. There was no medical evidence that the alleged shaking incident had caused [her] any detectable injuries.
The applicant was charged with the common assault of her daughter and a defended hearing was subsequently held in the local court.
At the local court hearing, the applicant gave evidence that: Well, in order to get [her] settled I've held her up in the air because that's what I've done like a thousand times before. Like if she can - if she can be up and she's looking down into my eyes and I'm looking up into her that helps to settle her.
She gave evidence that she was holding the baby about 30cm in the air but denied shaking her.
The applicant pleaded not guilty to the offence but was found guilty by the local court magistrate. In convicting the applicant for the offence pursuant to section 10A of the Crimes (Sentencing Procedure) Act (NSW), the magistrate found that the applicant's actions occurred as a result of a 'momentary lapse' and that her likelihood of reoffending was low.
In the course of the hearing the magistrate stated that: My concern is this is a case where I think it was a momentary lapse. I don't have any other evidence to suggest otherwise. There's no evidence that the child was other than otherwise a healthy loved child. There's no other evidence and indeed there's no other evidence that the child had any other support other than the child's mother at that particular time.
In convicting the applicant, the magistrate stated that the conduct involved recklessness and that there was no other maliciousness or intention involved. It was on this basis that the magistrate found the offence of common assault proved.
In oral evidence before this Tribunal, the applicant confirmed that she did not intentionally shake her daughter but acknowledged that by lifting the child up and down she could understand how other people may have thought she'd been shaking her. She denied being angry at her daughter at the time of the incident but was simply trying to settle her.
In accordance with the findings of the magistrate, we are satisfied that whilst the applicant did assault her daughter, it was a reckless action, occasioned by a momentary lapse with no malice or harm intended to the child.

[5]

Assault occasioning actual bodily harm

On the same evening in July 2013, the owner of the bar rang the child's father to advise him that the applicant was in the hotel with the child. When the child's father arrived, he took out his mobile phone and began to film the applicant, who grabbed the phone and threw it on the road. When the child's father then walked over to the applicant, she punched him with a closed fist to his face. When he dared her to hit him again, she punched him in the face again.
The applicant was charged with assault occasioning actual bodily harm and entered a plea of guilty to the charge.
At the hearing into the charge of common assault, the applicant gave the following evidence in relation to the incident involving the child's father: He called me a fucking trashbag, a bitch, and I'm a shit mother…That pushed me over the edge. I snapped because I don't like to be called a bad mother. He doesn't know what it's like to raise a baby on your own and so at that point I was so frustrated and upset with him that I reached forward and I attempted to punch him in the face. And in fact you did hit him, didn't you? Yes, I did.
The magistrate did not record a conviction in relation to the charge of assault occasioning actual bodily harm and placed the applicant on a bond for a period of eighteen months.
The magistrate found that the likelihood of any future offending by the applicant was low.
In a statutory declaration dated 3 August 2016, the applicant states that I don't deny that alcohol was a contributing factor to my poor judgement on the night of the incident and as a result of that I have chosen to abstain from any alcohol since this time and I intend on maintaining that. I want to be a positive role model for my daughter, whom I share a very strong bond with. I enjoy child related activities and would very much like to be able to contribute to these in any way I can.
There is no dispute that the applicant punched her ex-partner in July 2013 and that he sustained a scratch to the left side of his face and swelling to the right side of his eye. The applicant pleaded guilty to the offence and does not deny that she punched him.

[6]

Care history for applicant's daughter

From birth, the applicant had full-care of her daughter. Following the incident on 8 July 2013, the applicant's daughter was removed from her care and placed in the care of the child's paternal grandmother.
In 2014, an order was made in the Children's Court placing the child under the sole parental responsibility of the minister for a period of 6 months, and placed in the care of her father, with weekly contact with the applicant, including some overnight stays.
By 2015, this contact with the applicant had increased to two days per week. According to a report provided to the Children's Court on 10 July 2015 by Department of Community Services workers: [The child] was observed by caseworkers to be engaged in play and responsive to her mother's requests. The home is filled with age appropriate toys...that are easily assessed for her stimulation…[She] appears to be settled in her mother's care, the home appears adequate and child safe for a child of [her] age.
The Department of Community Services workers recommended that the child would benefit from equal time with both parents, stating that this would provide the child 'with safety, stability and predictability to her overall functioning and development.'
On 22 September 2015 the Department of Family and Community Services (FACS) wrote to the applicant to advise that they were closing their file in relation to the applicant's daughter. In explanation for this decision, the caseworkers wrote that 'during the time you have worked with FACS we believe that you have addressed the risk issues for [your child] that were outlined in the Child Protection Case Plan.'
Prior to her daughter starting school, the applicant had the care of her three nights a week. Because of her geographical distance from the child's school, she currently has the care of her daughter every second weekend, one night in the alternative week and half of the school holidays with additional time for Mother's Day, birthdays and Christmas.
In oral evidence before this tribunal, the applicant confirmed that her daughter's father has the primary care of their daughter and that she has contact with her daughter from Friday to Monday every second week and on Thursday nights in the alternative week. She confirmed that there are no current family law proceedings in relation to her daughter's care.
She gave evidence of some dispute with her daughter's father when she sought to have her daughter stay overnight to attend her grandfather's memorial service and subsequently to attend a cruise for her grandmother's birthday. She confirmed that no contravention proceedings were filed. There is no evidence on file of any contravention of the orders by the applicant.
The applicant confirmed that she has avoided alcohol and illicit drugs since 2013 and has changed her lifestyle such that she has 'no need for alcohol' any more.
She told the tribunal that she found it difficult not being her daughter's primary carer, particularly as the child's father is busy running a business but told the tribunal that the situation is not within her control and she can only do what is within her control. The applicant named her church as being very supportive, particularly in relation to the loss of custody of her daughter, her father's death and her own breast cancer diagnosis.
She told the tribunal that when she is with her daughter, she organises fun things to do together, including the movies, the playground as well as organised festivals.
There is no dispute that the applicant enjoys a close relationship to her daughter who she sees weekly and who stays overnight with her three nights each fortnight. The FACS case notes are glowing in their description of the applicant's relationship with her daughter prior to the closing of the FACS file on the daughter in 2015.

[7]

Applicant's mental health

Contained on file is some documentation in relation to issues pertaining to the applicant's mental health.
In December 2011, the applicant was admitted to hospital following a threat to stab herself and her boyfriend.
In October 2012 the applicant contacted the telephone service run by Tresillian, which offers advice and support for new mothers. The applicant spoke of her frustration in being unable to settle her child in the evening and said that she felt like throwing the child against the lounge. She denied having any intention of acting on this. The Community Services Crisis Response Team was alerted and services put in place to support the applicant.
A 2013 report from the applicant's treating psychologist, Ms Hollands, was tended in the applicant's sentencing proceedings in relation to the charges of common assault and assault occasioning actual bodily harm. Ms Hollands gave the opinion that the applicant had been suffering from an extremely severe level of depression in 2009 which had normalised by 2013. It was Ms Hollands' view that whilst the applicant's daughter had been in the applicant's full-time care, the child's physical and psychological needs had been met. It was her strong opinion at the time that if the child were restored to her mother's care, the level of risk to the child would be low.
Ms Hollands expressed the view that: I have no evidence to suggest [the child] had ever been at risk of being physically harmed or ill treated by [the applicant]. Their relationship and interaction during our previous sessions has been of warmth, and within the normal parameters of mother-daughter relationship. I have no concerns for [the child's] well being should she return to live with [the applicant] in the future…[The applicant] displays a mature and committed attitude towards ensuring she provides for [the child] into the future for her both emotionally and intellectually. Her own initiation of a parenting course due to commence in January 2014, as well as her initiation of mediation between herself and [the child's] father through Relationships Australia also indicates a mature and open approach to ensuring [the child's] emotional needs are met.
In a reference dated 1 September 2016, Ms Hollands expressed the opinion that 'there are no risk factors of any kind in respect of [the applicant] and it is my professional opinion she would be an asset in whatever field she chooses to work in.'
In a report dated 9 February 2017, Ms Hollands confirms that the applicant has addressed and successfully managed to maintain abstinence from alcohol and any other drugs from July 2009 and that 'this abstinence, in conjunction with her mindfulness based cognitive therapy approach to managing her stress, moods and previous anxiety, has resulted in very positive outcomes psychologically.'
Ms Hollands gave the opinion that: there are no identified risk factors which would be preventing my support of [the applicant's] working with children in the immediate future. Over the past 4 ½ years, [she] has led a meaningful standard of living and displayed no behaviours or attitudes which would be of concern in her working with children. Hence I strongly support her application to be seriously considered.
In an updated report dated 1 May 2019, Ms Hollands confirmed that the applicant's last appointment was on 7 February 2019 with the applicant 'presenting as stable with no identified risk factors.'
In evidence to the tribunal, the applicant described a close relationship with her mother and sister, who she sees regularly. The applicant also gave evidence of strong ties with her church where she attends church-related activities, including church services, bible study and a women's group. She is also supported by a counsellor and by her involvement with a community outreach program.
We accept that, despite some earlier depressive issues, on the evidence before us, the applicant's mental health is stable and that she has numerous supports around her.

[8]

Expert evidence

Dr Penny Seidler, psychologist, prepared a risk assessment report for these proceedings.
In evaluating whether the applicant poses a real and appreciable risk to the safety of children, Dr Seidler made the following observation: Other than the triggering event, [DCY] does not have a history of engaging in abusive behaviour towards children. Further to this, it is my assessment, and seemingly also the assessment of the Criminal Court, that [DCY]'s offending behaviour was a function of poor coping in a particular set of circumstances, rather than being reflective of a long-standing pattern of abusive or aggressive behaviour towards children.
In assessing the applicant's risk of physical abuse to children, Dr Seidler reviewed those factors considered to either elevate or reduce the applicant's risk.
The elevating features considered were that the applicant has a history of:

engaging in aggressive conduct at times when affected by alcohol;
trauma and abuse, the consequences of which have affected her mental health adversely;
emotional dysregulation, especially in the context of triggers related to her poor attachment and relationship experiences.

Those issues considered to reduce the applicant's risk were that:

she is reportedly engaged in a prosocial community routine and is well supported in the community;
she is no longer engaging in alcohol abuse;
she has engaged in long-term psychological therapy and impressed with strong self-awareness and stable mental health as well as positive coping strategies;
she did not endorse attitudes consistent with aggression and violence and has addressed the antecedents to her offending behaviour;
FACS has closed the file for the applicant's daughter and has allowed the applicant to be actively involved as a parent in her daughter's life.

Dr Seidler expressed the view that the applicant has made significant and important changes in recent years associated with her mental health, emotional and personal coping skills and her peer connections which have resulted in her achieving long term sobriety of alcohol and drugs, as well as managing a lifestyle that is stable, goal-directed and prosocial. It is Dr Seidler's view that whilst the applicant remains emotionally vulnerable, she has worked hard to minimise the presence of risks in her life and, thus, her risk to children and young people of abusive behaviour has been minimised. Dr Seidler is of the view that the risk of the applicant engaging in future acts of violence or abuse towards children and young people is low and no greater than any other member of the community. According to Dr Seidler, the applicant's longstanding vulnerabilities may increase the risk of adverse psychological impact on children and young people harm, although this risk appears to be offset by her own coping skills and support systems.
According to Dr Seidler: On the basis of the information available to me, I do not consider that [DCY]'s risk to the safety and well-being of children and young people is to a degree that she should be prevented from being granted a Working with Children Check Clearance. However, there are some emotional vulnerabilities for [DCY] that contribute to chronic risk of emotional dysregulation and associated poor decision making, which may affect children and young people adversely, although I acknowledge that these seem well controlled at present, in addition to being supported by a reasonable system of positive coping skills and personal supports.
In oral evidence to the tribunal, Dr Seidler recommended that the applicant retain some regular, planned contact with her psychologist, Ms Hollands, even if it were only twice a year. Dr Seidler did not think that the applicant's support from her church minister would be an adequate substitution for therapy treatment from Ms Hollands, should such treatment be required.
Following Dr Seidler's evidence, the applicant indicated that she intended to continue sessions with Ms Hollands twice a year in 2020.

[25]

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a 'reasonable person' would need to know that in 2014, the applicant was convicted of the common assault of her daughter and pleaded guilty to the assault occasioning actual bodily harm of the child's father. The reasonable person would note the findings of the magistrate that the applicant had not intended to assault her daughter but that the offence had occurred due to recklessness and a 'momentary lapse.' The reasonable person would assess the seriousness of the assault occasioning actual bodily harm by noting that magistrates' decision not to record a conviction for the matter.
The reasonable person would give weight to the applicant's sobriety since 2013 and to the high esteem in which she is held by her church minster and other parishioners. The reasonable person would accept that the applicant has worked hard during therapy sessions to manage her earlier depression and to cope with both the removal of her child and subsequent contact arrangements. The reasonable person would give weight both to Ms Hollands' assessment of the applicant in terms of the stability of her mental health and to Dr Seidler's assessment that the applicant does not pose any greater risk to the safety of children than any other adult in the community.
Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst she is engaged in child-related work.

[26]

Is it in the public interest to make the orders sought by the applicant?

Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children's Guardian [2016] NSWCATAD 214
The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and, in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262
In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest."
For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. The applicant wishes to be involved in her daughter's school activities and to be more heavily involved with her church's school programs. To do so requires her to hold a working with children check clearance. The applicant also wishes to return to paid employment and may require a working with children check clearance for relevant administrative positions. We are satisfied that it is in the public interest for a mother to be able to support her daughter by taking part in school-based activities. We are also satisfied that it is in the public interest for a single woman like the applicant to retain community links, including with the church and its children program. We accept that it is in the public interest for the applicant to be in a position to return to paid employment following a period of time being unemployed.
We note with concern the significant delay in the resolution of the original application for the working with children check clearance and this subsequent review. We note with approval the advice of the Children's Guardian that upon payment of the requisite fee, the grant of a working with children check clearance enabling the applicant to engage in both paid and voluntary work with children will be able to proceed without any further delay.

DCY v Children's Guardian

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