DDC v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-09-18

REASONS FOR DECISION

The applicant seeks review of the decision of the respondent (the Children's Guardian) to refuse his application for a working with children check clearance.
The applicant is a 23 year old man who lives with his fiancé in regional New South Wales. He works as an enrolled nurse in a residential aged care facility.
On 13 May 2016, the applicant applied to the respondent for a working with children check clearance. On 26 May 2017, the respondent notified the applicant of its decision to refuse him a working with children check clearance.
On 19 June 2017, the applicant applied to the Tribunal for a review of the respondent's decision. The applicant seeks a working with children check clearance in order to meet the requirements of his further nursing studies and to accept an offer of employment at a local hospital.

The working with children legislative scheme

The object of the Child Protection (Working with Children) Act 2012 ("the Act") is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances.
A person may apply to the Children's Guardian for a working with children check clearance.

Role of the Tribunal

The role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration.

Issue to be determined

The issue to be determined is whether the applicant poses a risk to the safety of children having regard to the factors in s 30(1) of the Act.
The test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].

Burden of proof

Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [20]-[21] and [135].
The applicant has a duty to disclose all relevant material.

Procedure of Tribunal

The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Civil and Administrative Tribunal Act 2013.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures, and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form.

(a) the seriousness of the matters that caused a refusal of a clearance

The matters that caused the refusal of a clearance were incidents of violence by the applicant towards his mother which resulted in criminal charges in 2009 and 2010.
In 2009, the applicant was 15 years old and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiance Disorder (ODD) and Intermittent Explosive Disorder (IED). He was attending special schooling and was under the care of a medical practitioner. He was living with his mother, step-father and younger siblings in the family home. On the day in question, the applicant had been suspended from school. As a punishment, his mother took away his video game player. An altercation ensued with the applicant pulling his mother's ponytail, scratching her around the eyes, and punching her numerous times. His mother wrestled him to the floor and restrained him. Police were called and the applicant was charged with common assault and a provisional apprehended violence order was made. At court, the charge was dismissed and a caution was given to the applicant.
In February 2010, the applicant was 16 years of age. A verbal argument occurred between the applicant and his mother in the home. The applicant entered his bedroom taking with him a telephone, which was then taken from him by his mother. The applicant pushed his mother, grabbed her arm, and pulled her hair. The applicant's mother took the applicant's video game player from his room. A struggle ensued, with the applicant grabbing his mother's hair and punching her a number of times.
The applicant was charged with the offences of stalk/intimidate intend fear of physical/mental harm, common assault and breach of the apprehended violence order. Without conviction, the applicant was ordered to enter into a bond to be of good behaviour for a period of 12 months, supervised by the Juvenile Justice Service.
In June 2010, the applicant and his mother were involved in another verbal argument and subsequent struggle, in which the applicant pulled his mother's hair and punched her. During the incident, the applicant knocked over his 18-month old sibling. The applicant was charged with assault occasioning actual bodily harm and breach of the apprehended violence order. The applicant was convicted and committed to the control of the Minister for 8 months, suspended upon the applicant entering into a bond to be of good behaviour for 8 months, supervised by the Juvenile Justice Service.
In addition to the criminal matters, Department of Family and Community Services records indicate reports of the applicant, when aged between 10 and 13 years old, exhibited physically and verbally abusive behaviour towards his younger siblings.
The criminal offences committed by the applicant were serious, involving repeated acts of violence and aggression. The victim in each matter was the applicant's mother, with whom the applicant had a volatile relationship. At the time of his offending, the applicant himself was a child and was suffering from a number of mental health and behavioural issues which are detailed in later paragraphs of these Reasons.

(b) the period of time since the matters occurred and the conduct of the applicant since that time

The criminal offences were committed approximately 7 to 8 years ago.
In September 2012 when aged 18, the applicant was involved in an argument with his mother. He punched a hole in the wall of the home and caused dents in his mother's car. His mother called the police and the applicant was charged with destroying/ damaging property. The applicant pleaded guilty and was discharged without conviction on condition that he enter into a good behaviour bond for 12 months.
In November 2012 when aged 18, the applicant was charged with common assault - domestic violence related. It was alleged that the applicant and his 16 year old housemate were involved in an argument, during which the applicant used physical force to get his housemate to leave the property. Other than a summary provided on an application for a provisional apprehended violent order, the documents produced by the respondent contained no police facts or any witness statements relating to the charge. The charge was ultimately dismissed by the court, and the applicant denies the allegations as set out in the summary. In light of the absence of any other material to support the allegations, the Tribunal gave little weight to this evidence.
Since December 2012, the applicant has not been charged with any criminal offences.

The applicant was aged 15 and 16 years old at the time of the criminal offences involving his mother.

(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

The victim was the applicant's mother. She was aged 32 and 33 years old at the relevant times.

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

The difference in age between the applicant and the victim was 17 years.

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

The victim was not a child.

(g) the applicant's present age

The applicant is 23 years of age.

(h) the seriousness of the applicant's total criminal record and the conduct of the applicant since the offence occurred

Details about the applicant's criminal record have been detailed in earlier paragraphs.

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

The Tribunal had before it the oral and written evidence of the following health professionals:

Mr Liam Higham, Provisionally Registered Psychologist, who assessed the applicant and conducted a risk assessment;
Dr S, the applicant's treating psychiatrist; and
Ms R, the applicant's treating psychologist.

The above health professionals do not believe that the applicant poses a risk to the safety of children.

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

The applicant does not dispute the offences of violence against his mother and states that they were "of his own doing". The applicant acknowledges in retrospect that it was not the best reaction and that he should have just 'walked away'. However, he said that they occurred when he was a child and in the context of emotional issues concerning his mother, his depression, and the fact that he did not have anyone to turn to at the time.
The evidence indicates that the applicant had a difficult childhood and a very challenging relationship with his mother. According to the applicant and his stepfather, the applicant was frequently subjected to emotional abuse by his mother, to which the applicant would often respond with violence. During his childhood, the applicant experienced considerable difficulties at school, including bullying and ridicule for the glasses he wore. He suffered from mental health issues and had a break down in 2008, resulting in a lengthy admission to a children's mental health unit. In addition to his behavioural disorders, the applicant was diagnosed with depression and was treated with medication.
Despite the issues in his childhood, the applicant competed his HSC and since that time he has enjoyed continuous employment, including at a local supermarket and licenced premises. His previous employers report no issues with his conduct. In fact, they write very positively of his behaviour, noting that he worked unsupervised without any complaint, was polite and friendly to customers, and was honest and hardworking. Both employers also noted that his (incidental) interaction with children was positive and without issue.
In recent times, the applicant has completed tertiary studies and is now a qualified enrolled nurse. Currently, he works at a local aged care facility, where he is responsible for the care of elderly residents, a number of whom suffer from dementia with challenging behaviours. The applicant is in charge of up to 30 residents during a night shift and is responsible for medication administration. There have been no incidents of any inappropriate conduct or any other matters of concern. He is a trusted employee with considerable responsibilities.
The applicant is engaged to be married to his fiancé who works in child care. The applicant is not a regular consumer of alcohol and does not use illicit substances. The applicant plays soccer on a weekly basis for a local club and has a strong support network, which includes his fiancé and her family, his stepfather and friends. His referees include nursing colleagues, a local business owner, and a parent whose child played in soccer matches refereed by the applicant. All express support for the applicant's application.
In 2016, the applicant's general practitioner referred the applicant to a psychiatrist, Dr S, in the context of the applicant seeking assistance for problems with attention and concentration associated with his nursing studies. Dr S diagnosed the applicant with ADHD and depression and noted some Cluster B personality traits. Dr S states that the applicant's conditions are well-controlled and appropriately managed with medication. Dr S states that the conditions do not present a risk to the applicant or to children under the applicant's care.
A letter from the applicant's mother written in 2015 formed part of the materials produced by the respondent. In her letter, the applicant's mother refers to the applicant's 2010 offence as a "one-off altercation exacerbated by the major stressors our family had at the time". The applicant's mother stated that the incident occurred in the context of her marriage breakdown, becoming a single mother to 5 children (three of whom were under 5), and her diagnoses of post-traumatic stress disorder, fibromyalgia, severe depression and anxiety. She also said that she was not physically or emotionally strong enough to deal with the day to day demands of an active teenage boy.
The Tribunal notes that the letter was prepared in 2015 in support of the applicant's nursing studies. Since that time, the applicant has made a decision not to have contact with his mother. The applicant's mother did not participate in the Tribunal hearing or provide any further written material. In those circumstances, that Tribunal accorded her letter only limited weight.
The applicant wishes to further his nursing career and has commenced studies towards a Bachelor of Nursing. He has an ambition to study medicine in the future. The applicant has been offered employment at a local hospital. However, he has been unable to accept that offer as a result of his lack of a working with children check clearance.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

The Tribunal is not aware of any relevant material exchanged between the respondent and its counterparts in other jurisdictions.

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

The respondent acknowledges that the applicant's violent behaviour to another person has not continued since becoming an adult. However, the respondent opposes the applicant's application.

Conclusion

The applicant has a criminal history which has included offences of violence committed while he was a child. The existence of those facts gives rise to concern and requires careful consideration by the Tribunal.
Whilst the applicant's offences were serious and involved harm to his mother, the Tribunal notes that the applicant's 2009 and 2010 offences were not committed against a child. The last offence of violence against his mother occurred 7 years ago, and therefore could not be said to be very recent conduct. The applicant's offending was committed when he was a child and in the context of behavioural issues and a volatile and dysfunctional relationship with his mother.
It is evident that the applicant has matured significantly. To his credit, he finished his schooling and has consistently maintained employment since that time. There is no evidence of any inappropriate conduct during his employment, which has involved stressful situations including caring for vulnerable people with challenging behaviours. The applicant's employer references are consistently favourable and positive.
The applicant was an impressive witness, who was both frank and forthcoming. He does not deny his past history of violent behaviour and his mental health concerns. Importantly, the applicant has awareness and insight into his ADHD and depression and the need for treatment. Indeed, he has demonstrated his ability and willingness to seek expert help when required, and accept the treatment recommended by his treating health professionals. The applicant has a strong support network, as evidenced by the number and content of the character evidence in support of his application.
The Tribunal finds that the applicant is genuine and motivated in his desire to further his studies and to increase his qualifications and employment opportunities. The Tribunal finds that the applicant is in significantly different circumstances from those out of which his offences arose. It is clear that the applicant has matured considerably, and that he values and takes pride in his employment and his relationships with others.
Taking into account all of the material before it, and having regard to the factors set out in section 30(1) of the Act, the Tribunal is satisfied the applicant does not pose a risk to the safety of children, and should be granted a working with children check clearance.
Furthermore, in relation to the section 30(1A) factors, the Tribunal finds that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and it is in the public interest to make an order enabling the applicant to work with children.
In making these latter findings, the Tribunal takes into account the fact that that the trigger offences were committed when the applicant was a child, the passage of time that has elapsed, and the applicant's consistent and unblemished employment history.
The Tribunal also notes that since the respondent's decision to refuse a working with children check clearance, the applicant has been unable to further progress his nursing career and has been unable to accept an offer of employment at his local hospital. In the Tribunal's view, there is a public interest in enabling the applicant to achieve these objectives.

ORDERS

Accordingly, the orders of the Tribunal are as follows: 1. The decision of the respondent dated 26 May 2017 is set aside. 2. In substitution for that decision, the following order is made; The applicant is granted a working with children check clearance. 3. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited. ********** 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: 31 October 2017

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (6)