DTV v Children's Guardian - [2019] NSWCATAD 244 - NSWCATAD 2019 case summary — Zoe

NSWNSWCATAD

DTV v Children's Guardian

[2019] NSWCATAD 244

NCAT Administrative and Equal Opportunity|2019-09-02

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2019-09-02

Catchwords

[1988] HCA 68.

Source

Original judgment source is linked above.

Catchwords

[1988] HCA 68.

Judgment (41 paragraphs)

[1]

Summary

The applicant, who will be called DTV, is a 41-year-old health worker who is seeking a working with children check clearance so he can coach his young son's rugby team.
He had been granted a volunteer working with children check clearance in 2014 but when, in 2018, he applied to have the clearance changed to include paid work, the Children's Guardian placed an interim bar on his then current clearance. The Children's Guardian wrote to advise him that they would be undertaking a risk assessment based on charges laid against him for assault occasioning actual bodily harm in 2016 and 2017, for his conviction for common assault in 2010 and on the basis of the seriousness of his total criminal record.
The Children's Guardian subsequently refused to grant the applicant a working with children check clearance on the basis of the totality of his criminal record.
On 26 March 2019, the applicant applied to this Tribunal for a review of the decision to refuse him a working with children check clearance. He was self-represented in these proceedings.
Having initially taken a position of neither supporting nor opposing the application for review, at the conclusion of the hearing, Counsel for the Children's Guardian advised the Tribunal that she was now supporting the applicant's application for review.
For the reasons set out below, we have determined that the decision of the Children's Guardian to refuse the applicant a working with children check clearance should be set aside and a working with children check clearance granted to him.

[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 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 the 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)
The Tribunal must consider allegations made against an applicant in the following way: 1. The Tribunal may be satisfied that the allegation against an applicant is established. 2. Alternatively, the Tribunal may be satisfied that the relevant incident did not occur, i.e. that the allegation is groundless. 3. In a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal may not be satisfied that an allegation has been made out, but may nevertheless have a lingering doubt or suspicion about it. In this case, the Tribunal should consider whether the circumstances surrounding a particular incident, or course of conduct, means that the existence of a risk has not been disproven. (M v M (1988) 166 CLR 69; Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]; Children's Guardian v CXZ [2019] NSWSC 1083; [1988] HCA 68; DAR v Children's Guardian [2018] NSWSC 942; Office of the Children's Guardian v CFW [2016] NSWCA 1406)
According to Walton J in Children's Guardian v CXZ [2019] NSWSC 1083, the Tribunal is required to assess all allegations raised by the Children's Guardian. Citing with approval the consideration of risk as discussed by Harrison J in Office of the Children's Guardian [2018] NSWSC 942, Walton J found that the test as to risk only emerged, in the case of an allegation of wrongdoing, if an allegation is found not to be proven and could not be dismissed as groundless.
In this matter, we have also been guided by Children's Guardian v BLF [2016] NSWSC 1206 where Fagan J commented at [29] -[31]: In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the victim and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none). If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the victim's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.
In determining whether DTV poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in refusing him a working with children check clearance, namely the totality of his criminal record in addition to apprehended violence orders issued against him and allegations of assault made against him. We have also considered expert evidence by the psychologist, Dr Luke Heeps, in addition to references and oral and written evidence provided by the applicant.
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.

[9]

23 February 2006

After the applicant was charged for an assault that took place on 23 February 2006, a final apprehended violence order was issued against the applicant for the protection of his ex-wife and their two children. The assault charge was later dismissed.
The event record prepared by the police states, in part, that: The accused has then walked over to the victim and stood right in front of her, and leant forward towards her. The accused placed his hands into fists and then pushed them underneath the victim's jaw. At the same time, the accused pressed both of this [sic] thumbs into the victim's neck and the victim fell backward onto the bed. The accused maintained his hand position as the victim fell and the victim could not breathe properly. The victim struggled and said to the accused 'get of me, I can't breathe.' The accused released his grip, and the victim sat up on the bed. The accused grabbed the front left of the victim's shirt, and began pulling it…The victim got off the bed and ran into the dressing room opposite the bedroom and rang 000…Police arrived shortly after, however the accused had left the premises. The victim was extremely emotional, crying and visibly shaking when speaking with police…The victim suffered soreness to her neck and jaw as a result of the accused placing his fists under her jaw and pressing his thumbs into her neck.
On the basis of the police description of the event, including a description of the complainant's distressed demeanour on police attendance at the house, we are satisfied that an altercation occurred between the applicant and his ex-wife, such that she became fearful.
We are satisfied that this incident is relevant to an assessment of the applicant's risk to the safety of children, although its relevance is lessened by the fact that it is now over a decade since it occurred. For the reasons set out below, we are satisfied that the applicant has since modified his behaviour such that he does not currently pose a real and appreciable risk to the safety of children.

[17]

FACS notifications & risk assessment

In 2004, a notification was made to the Department of Family and Community Services (FACS) that the applicant's child has been hit with a stick resulting in in bruising to his hands. The physical punishment was denied by the parents and the notification was not substantiated.
In 2006, a notification was made that the applicant had pushed and punched his now ex-wife and that the applicant's younger child had been in bed at the time of the incident while the older child had been at school.
In FACS notes dated 24/12/06, the following observations were made: Concerns are held for [the applicant's older children] as there are allegations that they were exposed to two..verbal disputes between..natural father..and natural mother….[The children] are considered vulnerable given their young ages as they are reportedly exposed to ongoing verbal disputes and expressed frustration over these incidents.
A notification dated 19 March 2007 refers to a verbal dispute between the applicant and his now ex-wife with the notation that 'there are concerns that the mother pushed the child in the pram from Belmore to Marrickville to see the father then instigated the argument.'
In a FACS notification dated 12 March 2008 in relation to a dispute over access visits, it was noted that the applicant didn't want his son to go with the child's mother 'because she was so upset and irrational.' The child chose to stay with the applicant.
In a FACS notification dated 17 February 2014, the unidentified caller expressed concern that the mother (the applicant's ex-wife) has bipolar disorder, was not taking her medication and was not sending his son to school and was not 'always feeding him'.
The caller was concerned about the younger child missing school with the notes stating that the '[m]other wasn't sending him to school because she was scared to be left on her own. Mother wasn't taking her medication -mental health issues. [Caller] contacted mental health term and the outcome was she was taken to hospital…[I]t is believed she is experiencing mood disorder with psychotic symptoms…The mother is paranoid about being followed whilst driving and this leads to reckless driving on her part. Both children said they don't' want to stay with the mother because of the way she is acting.'
A 2016 notification in relation to the applicant raising his arm to his partner's mother was determined not to meet ROSH (risk of serious harm) for risk of psychological harm 'as no information in this report as to level of DV or amount of exposure to DV.'
A further notification dated 1 January 2017 described an altercation between the applicant and his ex-wife at a fast food restaurant.
The notes state that 'Screened out as no significant risk of harm identified in this report. Children are both with their father.'
A risk assessment report prepared by the applicant's current employer in 2017 gave the following analysis in relation to the applicant: [DTV] provided a frank, and seemingly honest, account of his history. Despite a difficult upbringing, he stated he has turned his life around. He has sought, and continues to obtain, professional assistance in making positive changes to his life…[DTV's] last offence was in 2014 which related to driving offences. [DTV] advised, despite some lapses in judgement, he remains committed to improve his life and does not use drugs or alcohol. [DTV's] psychologist, Dr Heeps, spoke very highly of [DTV] and the positive transformation he has witnessed.. Based on this analysis, the assessors can see no reason not to progress with the employment of [DTV].
Having considered the FACS notifications made in relation to the applicant's children in addition to the risk assessment report prepared by the applicant's employer, we are not satisfied that they disclose any information indicating that the applicant poses a current risk to the safety of children. Rather, the FACS notifications are more concerned with the ability of the children's mother to effectively parent the children.

[18]

Expert evidence

Since 2009, the applicant has been attending psychological therapy sessions with the clinical psychologist, Dr Luke Heeps.
In oral evidence before us, the applicant explained that he had first sought therapy from Dr Heeps after the applicant's then ten-year-old son had expressed his desire to be exactly like the applicant. This had concerned the applicant who didn't believe he was the 'perfect person' so he sought help to make sure he was the 'best person' he could be, despite his origins as a foster care child. He wanted to learn how to manage his anger and to change who he was and believes that he has learnt how to better communicate.
In a report prepared for the applicant's court proceedings in 2013, Dr Heeps wrote: [O]ur work over the last few years has allowed [DTV] to start a whole new process of taking responsibility of his own direction in life (learning about indigenous issues, forming better relationships, enrolling in TAFE and more recently University and starting work for [State government agency]). He has experienced far less anger and conflict with others over the last 2-3 years.
In correspondence to the applicant's GP in 2017, Dr Heeps wrote: [DTV] has progressed remarkably well over the years we have worked together, however further sessions are recommended in order to continue to reinforce the skills and to help him deal with new triggers to distress as he experiences progress through the ranks in his career.
In a letter to the Children's Guardian dated 22/11/18, Dr Heeps wrote that: I have consulted with [DTV] about very intimate details of his life, his emotion and his behaviour over a period of 8 years. I have seen no substantive or concerning evidence of behaviour of him committing acts of harm or violence towards young people. I fact, I have seen the opposite as he has demonstrated a great deal of service and love and concern and genuine interest in promoting the growth of young people (e.g. through extensive discussion about his parenting and as a football coach)… I believe that [DTV] is an invaluable tool towards furthering indigenous health as already evidenced in his recent employments over the last 5 years and that he has the right psychological capacities to particularly benefit the youth that he Is currently employed to develop. Especially as someone who can relate to dealing with intense feelings from traumatised pasts and becoming victor over his life rather than continued victimisation cycles.
In oral evidence before this tribunal, Dr Heeps denied that the applicant had issues with anger that required management, telling the tribunal that his treatment with the applicant was primarily about discussing life stressors which included the stress of having a professional position of responsibility and, as is common with people who come from trauma, and the fear of it all being ripped away. Dr Heeps described the applicant as someone who comes to see him as necessary, who engages with the sessions and who has always tried to make his life better and to improve things.
Dr Heeps told the Tribunal that he had no concerns about the applicant working with children. According to Dr Heeps, the applicant: has an astute understanding of children and youth in high stress situations. A person can be a skilled and educated worker, but doesn't have the skills to understand what needs to happen moment by moment. [DTV] has a very insightful way of dealing with youth and young people because of his background and what he has done with that background. [He is] very adept at determining what is a better version of him..and to develop a career and an education where on paper you'd expect none of that. [DTV] genuinely wants to help his community and is good at it because he can 'walk the talk.'
Dr Heeps told the Tribunal that he has no evidence that the applicant poses a risk to children. According to Dr Heeps it is quite the opposite and that the applicant benefits the children he comes into contact with, especially complex children that other people find hard to deal with.

[19]

Applicant's evidence

In oral evidence before us, the applicant described the improvements he has made to his life over the past eight to ten years, which have included regular therapy sessions with Dr Heeps and developing his own career within the health sector. During this time, he has learnt to advocate for people and to help them with their own anger and feelings of despair.
The applicant, who impressed as an open and honest witness, told the Tribunal that as he gets older he has worked on not getting involved in verbal disagreements. He has been very involved in coaching his son's rugby team and makes a point of treating all members of the team in the same way.
His ability to manage difficult situations has been demonstrated in how he has managed these proceedings and he told the Tribunal that: Ten years ago, I would have been adversarial and would not have been able to manage these proceedings…My emotional maturity has changed. I have been able to manage myself in a more professional way.
The applicant described the satisfaction he gets from his work in the health sector where he educates people on health related matters. The applicant would like to enrol in a Masters of Psychology for which he requires a working with children check clearance
The applicant provided a series of references in support of these proceedings. No issue was taken with any of the references presented.
A reference from the applicant's manager describes him as a man who has 'turned his life around.' The applicant's work record attests to this according to the manager who also noted that the applicant has a young family he is committed to. It is the manager's view that the applicant is not a risk in relation to working with children.
A reference from the applicant's direct manager provides as follows: I have known [DTV] for 3 years on a professional level. [He] has volunteered..in the past..and also speaking as an inspirational indigenous male role model to groups of young people with myself at regular youth events that I managed in the past. [DTV] has always been very passionate as an educator, he demonstrates compassion and is very approachable, he is a very caring man and would go out of his way to help anyone where possible. I have also met [DTV's] family and it is obvious he is a fantastic father and caring partner. I am aware of [DTV's] criminal history and I am also aware that [DTV] has been having professional help and this has changed certain behaviours and I believe he has broken a cycle he was in, therefore I see know [sic] reason why this should impact on his employment.'
In his letter dated 24 September 2018, the clinical psychologist, Dr Luke Heeps, states that: I have known [DTV] as his clinical psychologist for a number of years providing therapy to him…I write this letter in support for his application for a Working with Children Check as someone that has developed a great deal of personal awareness and psychological skill over years of hard work in therapy. [DTV] has shown evidence of being a leader within his community in the health and sporting spheres and I believe he will continue to offer an invaluable contribution to both the indigenous community and the wider community at large (including to children and youth). I fully support his application for a Working With Children Check.
A fellow parent provided the following reference for the applicant: I worked with [DTV] throughout 2018 as a parent volunteering with our under 6s team and also helped around the club with other tasks to make sure the day-to-day running of the club went smoothly. [DTV] worked well with all parents and other staff to help create a happy and friendly environment for kids to have fun and learn important values…My experience working with [DTV] was nothing short of exceptional and I will happily have him back helping next year. I received nothing but positive feedback from everyone who crossed paths with [him].

[37]

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. In making this finding, we accept that the applicant is a valuable asset to the health sector, a much-admired coach for his young son's football team and an Indigenous male role model.

DTV v Children's Guardian

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Decision date

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Catchwords

Judgment (41 paragraphs)

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Cases Cited (15)