EOV v Children's Guardian

NCAT Administrative and Equal Opportunity|2021-08-24|Before: Emeritus Professor P

The applicant's evidence

The applicant provided written submissions and oral evidence. In his application he states that: We are a practicing catholic family engaged with Church volunteer activities by active participations as family and WCCC may affect me in engaging with volunteer activity thus jeopardizing our family's togetherness (as I would be unable to attend with spouse and other family members) and reputation when we attend Church volunteer activities. I don't have any other activity both paid and unpaid other than volunteering in Church, that would demand a WWCC.
In addition to being unable to participate in volunteer activities at his church, the applicant expressed concern that he will be unable to help at activities for children with disabilities with his son who has autism spectrum disorder or act as a referee at children's soccer matches. His wife works at weekends and he wants to be able to participate in these activities with his children. He does not need a WWCC clearance for his work currently, but this may change if the company he works for secures a contract at a school.
The applicant maintained consistently that Incident 2 occurred because he intervened in a dispute between his eldest son and a younger 'special needs' child, who has autism spectrum disorder, to protect the younger child. He states, for example, in the annexure to his application (Exhibit A1) that, in relation to Incident 2, he: … had to intervene physically to be in between to stop special need boy getting hit by elder sibling and my physical block has resulted in elder son got dashed mildly on the wall in the narrow space and unfortunately my wife having challenged with my own elder brother overseas to put me behind bars took advantage of this event to twist that as domestic violence towards him. It is an act of protection and disciplining the child in our Indian culture which has been viewed as otherwise by the Guardian's office.
The applicant consistently stated in writing and during the hearing that it is a difficult marriage but that he remains in it because of his religious beliefs and commitment. He asserted that he was subjected to emotional abuse by his wife who refused to let him speak to his family members in India and took his passport to prevent him visiting dying relatives. He told us that the criminal proceedings that resulted in the cancellation of his WWCC clearance relate to long-standing marital conflict. His wife 'built up a story' in which she portrayed 'everything as domestic violence'.

The evidence of Witness A

Witness A is a family friend and member of the Catholic Association of Tamils (CAST) in Australia who provided a character reference and was cross-examined before the Tribunal. She states in her written reference dated 5 June 2021 (Exhibit A4) that she first met the applicant's family in 2012 and that they have sought her guidance 'with regards to the children's education and other matters' as she has 'been in Australia for over 35 years' and has raised two children.
Witness A states that she: … is aware of the legal issue between (the applicant and his wife) regarding their oldest son … involving police and Family department. This was sorted out in April 2019 and the couple have reconciled and continue to live as a family with their three children. … Any disciplinary action (the applicant) has taken is within civilised norms to groom their children in becoming best citizens. Though they are from Indian Tamil ethnicity where discipline and respecting elders is considered vital in grooming children, they have leant and adopted the cultured Australian way in achieving this. … I have witnessed (the applicant) taking care of their children with unconditional love by cooking and caring for them when (his wife) is at work; he has even brought all three children to church by himself when (his wife) could not join due to her work commitments. I reiterate that (the applicant) would go miles away to protect his children and continue to care for their well-being and confident he will never pose any risk to his or any other children in the community.
Witness A said that at the time the offences took place the applicant and his wife were 'having a lot of difficulties' and that she 'heard both versions'. Witness A stated that: 'The way she (the applicant's wife) was interfering was not good for the kids' and that she 'pushes him to the limits' and 'tests his patience'. Witness A gave evidence that she has witnessed the applicant's wife using strong and abusive language.
Witness A said that: In our culture we discipline children to respect elders and every now and again we give a smack. Sometimes one or two smacks is not going to hurt the child. He (the applicant) has given up on disciplining his children because of (his wife's) behaviour. She has been driving him crazy. He can't speak to his family (in India). There is nothing wrong with disciplining children. I told them not to disagree about discipline in front of the children. I have not seen him smack the children or shout at (his son). I have seen her abuse him. He is a very calm person. There was an incident when she threw something at him.
In relation to the applicant's son's allegations that he 'felt helpless' because he did not know how to stop his father abusing his mother, Witness A responded that she was not aware of this. When asked to comment on the allegation that the applicant had pushed and pinched his son who has autism, Witness A responded that this 'may sometimes be appropriate, it would depend on the extent'. Responding to the question: 'Is it ever appropriate for a parent to kick a 15 year old?', Witness A said: 'Maybe he did it unintentionally, it is not inappropriate if unintentional.'
Witness A asserted that she is aware of 'inappropriate actions' on the part of both the applicant and his wife, with whom she, 'is still a friend. I am a friend of the family'.

Dr Abdal Khan

Dr Abdal Khan is a psychiatrist who has seen the applicant on several occasions. He produced documents and appeared before the Tribunal for cross-examination.
Before us was a report dated 11 April 2019 from Dr Khan to a firm of lawyers (Exhibit A5). Dr Khan confirmed that this report was prepared prior to the applicant's court appearance in relation to the criminal charges heard on 15 April 2019 and that its purpose did not relate to the risk the applicant may pose to children.
In this report Dr Khan states that the applicant, 'reported long-standing marital conflict' with his wife who, after they moved to Australia, placed restrictions on him communicating with his extended family. This included contacting his father and sister when they were dying from cancer. When she learned that he had continued contact with his family in her absence, his wife 'allegedly threatened to 'put (him) behind bars' if he continued to speak with his family'.
Dr Khan sets out a number of problems reported to him by the applicant including his wife using profanities in front of the children and at a cricket match at which he was playing. She also attended his work, demanded money and threatened to embarrass him in front of his work colleagues. The applicant told Dr Khan he had been contacted by a man who alleged the applicant's wife had stolen $40,000 from him. The applicant told Dr Khan that his wife had 'brainwashed' the children to make false allegations to the school counsellor. The applicant vehemently denied the assaults on his wife and son which resulted in the criminal charges.
Dr Khan states in his report that: (The applicant) denied any issues with anger throughout his psychiatric assessments, which was consistent with the Anglicare Family and Relationship Service report (dated 15 March 2019). There was no evidence of anger or irritability during mental state examinations of (the applicant) conducted on 22 March 2019 and 2 April 2019. He appeared to have capacity to manage his anger. … (The applicant) does not endorse any domestic violence or family violence. He denied perpetrating any domestic violence or family violence. He felt he was a victim of domestic violence and family violence. ... (The applicant) presented as concerned first and foremost about the welfare of his family. … (The applicant) did not present as a risk of offending and/or committing family violence. … (The applicant) did not present with pervasive anger issues… In addition, it should be noted that there were concerns that emerged during the psychiatric assessment with (the applicant) in relation to the veracity of (his wife's) history and her potential emotional influence on their children. It is possible that there was duress place by (his wife) on their children which could have influenced the history provided by them, in particular (Victim 2). (The applicant) seemed to be the victim of domestic violence as opposed to the perpetrator of domestic violence. He intended to accept the consequences of the charges he was facing to ensure that (his wife) would not subsequently be charged. (The applicant) was concerned about ensuring that the unity of his family was not disrupted.
Under cross-examination Dr Khan told us that the applicant was advised by his solicitor that if his wife withdrew her allegations she might be charged with perjury.
Dr Khan acknowledged that he did not use any formal risk assessment tools to assess whether the applicant poses a risk to children and that he is not a forensic psychiatrist.
Dr Khan submitted that it was 'highly implausible' that the applicant's wife would have agreed to the variation to the ADVO to allow the applicant to return to living in the family home if he was the perpetrator of domestic violence or a risk to their children. Dr Khan noted that there were no concerns about the applicant living with his children. He opined that on the basis of the reports of the applicant, his wife has a 'clear history of borderline personality disorder' and that most people with this diagnosis 'create chaos in the family'.
Dr Khan gave evidence that there are 'lots of cultural factors at play'. The applicant is party to an arranged marriage in which he is estranged from his family in India because of his wife's 'cultural hate' towards them. Dr Khan stressed that the applicant's circumstances are 'much more complex because of cultural factors'.
In a reference dated 1 December 2020 Dr Khan states that he conducted a psychiatric assessment of the applicant and provided him with 'supportive psychotherapy'. Dr Khan notes that: There have not been any concerns about aggression or violence at home. … (The applicant) and his wife would benefit from relationship counselling to strengthen their communication.
Under cross-examination Dr Khan stated that the applicant acknowledged that he used physical discipline methods with his children in the past, but has not done so since the criminal proceedings. The applicant admitted hitting his wife prior to the ADVO being issued in 2015 but denied hurting her and asserted that she had thrown objects at him.

Other references

The applicant provided a reference from his employer who states that the business in which they work is not related to children but that the applicant is 'committed to his children (sic) well being and upbringing'.
A letter dated 15 May 2019 was provided by the applicant's parish priest who confirms that he and his family are active members of the parish.

Section 30(1) factors

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.
The Tribunal must also satisfy itself in relation to the tests set out in section 30 (1A) of the Act. It provides that: The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and 2. It is in the public interest to make the order.
The evidence is considered below under subheadings which refer to the considerations under section 30(1) and 30 (1A) of the Act.

(a) the seriousness of the offences (b) the period of time since those matters occurred and the conduct of the person since they occurred and (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred (i1) any order of a court or tribunal that is in force in relation to the person

The respondent submitted that the criminal charges of assault against the applicant's wife and son are serious because they resulted in physical injury to his wife and psychological injury to his son.
The respondent asserted that the seriousness of the offending was acknowledged by the applicant's counsel in his submissions on sentence and by the sentencing magistrate, and that the 'applicant appears to have a history of imposing his will by physical force as there appears to be a history of domestic violence'.
Counsel for the applicant also stated in sentencing submissions (Exhibit R3, p.116), however, that: …in the scale of these matters that come before this Court and the higher Courts, I suppose that this would be - I'm not trying to argue that it's absolutely low range but it's towards the lower end of those matters…
The sentencing magistrate determined that it was not appropriate to deal with the matters without recording a conviction 'taking into account the objective seriousness of each of these matters', but acknowledged that the applicant has had no prior convictions at the age of 47 years.
The applicant received a non-custodial sentence for the offences for which he was convicted, indicating that the offences, while serious, were at the lower end of seriousness for that offence.
The respondent noted that the applicant has not participated in domestic violence courses as directed by Community Corrections. The applicant submitted that he was assessed as not suited to these programs.
The respondent submitted that, notwithstanding his guilty pleas, during the risk assessment process the applicant alleged that his wife and son conspired to portray the incidents which led to the criminal charges as domestic violence and has sought to downplay the harm he has caused to children by reference to his culture. The respondent submitted that the applicant shows a lack of insight and remorse.
The disqualifying offences took place approximately three years ago in November 2018 and February 2019. The applicant had ADVOs taken out against him in 2015 and 2019. The applicant has not come to the attention of the police since the convictions against him in April 2019 and is not currently the subject of any order of a court or tribunal.

The applicant was 47 years of age at the time of the disqualifying offences.

(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 applicant's son was 15 years old at the time the offence occurred. The applicant's wife was approximately 43 years old.
The respondent submitted that the applicant's wife was vulnerable because of the history of domestic violence and that his son was vulnerable because he was physically smaller than his father and 'because of the position of trust held by a parent compared to his child'.

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

The applicant was approximately 32 years older that his son and 3 years older than his wife.

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

The applicant clearly knew that his son was a child

(g) The person's present age

The applicant is now 49 years of age.

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

The respondent stated in written submissions that there is no expert evidence led by the applicant in respect of his risk of repeating the behaviour and that he lacks insight into the psychological impact on children of witnessing abuse. The respondent points to the psychological distress and suicidal ideation of his son reported to be attributed to witnessing domestic violence perpetrated on his mother by his father.
In sentencing the applicant, the magistrate noted that: It was submitted that bearing in mind the making of the apprehended domestic violence order and the lack of convictions of any kind, the Court would find it is unlikely that (the applicant) will reoffend. There is also the need to take into account the purpose of general and specific deterrence and perhaps in (the applicant's), bearing in mind what is said about the likelihood of him reoffending, the need for general deterrence.

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

The applicant provided written evidence in the form of emails and an annexure to his application, a copy of a report prepared by Dr Khan for the criminal proceedings and written references from Dr Khan, a family friend (Witness A), his employer and the pastor of his church. Witness A and Dr Khan also provided evidence under cross-examination.
The references from the applicant's employer and pastor make no mention of the issues of concern for this Tribunal and we attributed them little weight.
The respondent stated that the applicant has not provided any psychological risk assessment in respect of whether he poses a real and appreciable risk to the safety of children.

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

There is no such information.

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

The respondent submitted that it is necessary for the Tribunal to consider the applicant's lack of insight into his behaviour and its potential to cause psychological harm to children.
The respondent also submitted that the applicant may not act upon a child's disclosure of abuse if he was in a position of direct, unsupervised contact which would pose a real and appreciable risk to the safety of children in his care.
The respondent asked us to consider the reports and investigations of the Department of Communities and Justice which 'make it more likely than not that the November 2018 and February 2019 incidents occurred'.
The respondent submitted that the applicant sought to resile from the facts as alleged on the facts sheet but did not call his wife or eldest son as witnesses to test the assertion that the allegations were fabricated. The respondent argued that we should infer from this that their appearances before the Tribunal would not assist the applicant.
The respondent argued that the applicant has not fully disclosed all information to the Tribunal. The applicant denied that this is the case and said that he has disclosed 'everything'.

The reasonable person and public interest tests

The respondent submitted that a reasonable person would not allow his or her children to have direct unsupervised contact with the applicant because of his criminal and ADVO history; lack of insight into the potential or actual psychological harm on children of witnessing domestic abuse; and attribution of his behaviours to cultural differences.
The respondent argued that there is 'scant evidence' that a WWCC clearance is necessary for the applicant to conduct either paid or voluntary activities and that the applicant has not led any evidence as to the public interest in the applicant obtaining a clearance.

Consideration

As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
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, if relevant. 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.
If it occurred as alleged, the conduct that triggered this assessment was serious. One of the offences was child related and both occurred within the family home.
The applicant maintained throughout the proceedings that he pleaded guilty to the criminal charges to prevent his wife having to give evidence in court and to protect his family. Dr Khan gave evidence that the applicant was concerned that if his wife withdrew her allegations she would be accused of perjury.
The applicant submitted that the 'cultural aspects' of his case have been ignored by the respondent and that his situation cannot be compared to a family with a Caucasian background. While we took this into consideration, we are required to apply the laws of New South Wales in making our decision.
It is beyond doubt that something occurred in the family home which led to the criminal charges against the applicant. What took place, however, was not tested in court because the applicant pleaded guilty.
Witness A gave evidence that she has observed the applicant's wife (with whom she told us she remains friends) also engaging in inappropriate behaviour in front of her children. It is noted in the Police COPS report in relation to this incident in 2015 (Exhibit R3, p.242) that: During the argument the victim (the applicant's wife) has used offensive language and thrown some kitchen items at the POI (the applicant). The POI has then assaulted the victim, hitting her around the head area with his hands three to four times.
It is stated in the NSW Police report in relation to the February 2015 AVO (Exhibit R4, p.5) that: Police explained to both parties that the behaviour was unacceptable and both agreed. There appears to be an issue relating to culture as both parties emigrated from India to Australian in 2012 and police believe that without an AVO that the behaviour may continue and that with an AVO in place this may be a sufficient reminder to the POI (the applicant) to refrain from such behaviour. The reference to 'both parties' suggests that both the applicant and his wife were considered by the police to have engaged in unacceptable behaviour.
The respondent asserted that the applicant lacks insight and did not participate in recommended domestic violence courses. The applicant asserted that he was refused entry into the program because he had not committed any behaviours of concern. Although unlikely, it is possible that this is correct. There is insufficient evidence before the Tribunal about this for us to make a determination.
The applicant was self-represented in these proceedings. He was convoluted and tangential in his responses to questions, but remained calm throughout the proceedings. He was largely consistent in the evidence he gave and in light of the evidence of Witness A and Dr Khan about the cultural factors involved, we cannot dismiss the possibility that the applicant pleaded guilty to the charges to protect his family. He is seeking a clearance in order to be able to participate in activities with his children including church; sport; and therapeutic activities for his 'special needs' child. He impressed us as an involved and concerned parent, who acknowledged that his previous methods of disciplining his children are not acceptable in Australia.
Counsel for the respondent submitted that Dr Khan assessed the applicant without seeing the transcripts of the interviews of his children conducted by the police; that Dr Khan does not have relevant experience; and that he has not used appropriate risk assessment tools.
The respondent argued that the Police and Corrective Services records demonstrate a pattern of domestic violence and a failure by the applicant to control his anger as a result of which his children have witnessed domestic violence. The respondent acknowledged that the applicant has had 'some training and education' but that he has a history of losing his temper with his own children and 'no understanding of appropriate physical restraints'.
We considered the respondent's assertions that the applicant has a history of domestic violence. We cannot determine the extent of the violence that has occurred within the applicant's home or which versions of the events that resulted in the convictions are correct. The incident involving the applicant's son arose in the context of him trying to protect one of his other children. While this does not excuse any act of violence on his behalf, it is of relevance in our assessment of the applicant's risk to children.
It is common ground that there have been no allegations of violence or inappropriate behaviour on the part of the applicant outside of his family and that there have been no reported incidents since the court hearings in 2019. Even if the alleged offences did take place as described in the Facts Sheet, we consider the likelihood of any repetition of the behaviour to be low.
The applicant was 47 years of age when the criminal matters were determined by the court and he had no prior criminal convictions. He has been punished in relation to those incidents and it is not the role of this Tribunal to punish him further. The 2015 ADVO and the reports to DCJ all occurred within the family in the context of a difficult marriage and an apparent limited understanding of what is acceptable behaviour in Australia. We accepted the applicant's evidence that he is now aware of appropriate behaviour in this country; no longer engages in any form of corporal punishment with his children; and understands the harm it may cause for children to witness domestic violence.
We are not persuaded that denying this applicant a WWCC clearance will promote the safety, welfare and well-being of children or protect them from child abuse. It is arguable, rather, that his own children may be at greater risk if they are unable to engage in activities in the community with the applicant when his wife is at work. There is no evidence of any reported behaviours of concern exhibited by the applicant outside his family home or with any children other than his own. Denying him a WWCC clearance will not provide protection to his children in his family home, even if such protection could be shown to be needed.
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 us is that the applicant does not pose a real and appreciable risk to the safety of children and should receive a Working with Children Check clearance.
We are satisfied that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.
We do not accept the respondent's assertion that there is 'scant evidence' that the applicant needs a WWCC. There is no plausible reason why the applicant would have made this application if he did not need a clearance and the applicant demonstrated a genuine desire to be involved in his children's sporting and church activities. Organisations involved with children sometimes require WWCC clearances, even if these are not technically required under the Act. It is not in the public interest for the applicant to be denied the opportunity to participate in these activities with his children.

Orders

The orders of the Tribunal are that: 1. The decision of the Children's Guardian to cancel the applicant's Working with Children Check clearance is set aside. 2. In substitution of that decision, the following decision is made: the applicant is to be granted a Working with Children Check Clearance.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2021

The Legislative Scheme

The Act makes provision for the regulation of those persons who engage in or continue to engage in 'child related work'. Section 3 sets out the objects of the Act, which are to protect children: 1. by not permitting certain persons to engage in child-related work; and 2. by requiring persons engaged in child related work to have working with children check clearances.
Section 4 of the Act provides that: 'The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning.
The jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.
Child-related work is broadly defined in sections 6 and 7 of the Act. It includes paid and unpaid child-related work.
Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance.
Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant WWCC clearance.
The role of the Tribunal in these proceedings is to decide what 'the correct and preferable decision is having regard to the material then before it' including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. In undertaking that role 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.
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.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (5)