GHS v Children's Guardian

NCAT Administrative and Equal Opportunity|2024-09-09

Introduction

The applicant seeks administrative review under s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of the respondent's decision not to grant her a working with children check clearance (WWCCC). The respondent refused the WWCCC following a risk assessment because it is satisfied that the applicant poses a risk to the safety of children.
The applicant applied for a WWCCC on 21 July 2021. The trigger for the respondent's risk assessment was a conviction that the applicant had received in 2021 for common assault perpetrated against her child.
On 22 February 2024 the respondent notified the applicant that it had refused to grant her a WWCCC under s 18(2) the Act, citing her criminal offending, history of mental ill health, substance abuse and associated unresolved risk factors as grounds for the refusal.
The applicant filed the application with the Tribunal for administrative review on 19 April 2024.
The respondent opposes the application.
If the Tribunal allows the application, it may order the respondent to grant the applicant a WWCCC under the Act.
Due to the sensitive nature of these proceedings, an order was made on 23 May 2024 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym 'GHS' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

The hearing

The applicant gave oral evidence and was cross examined by audio visual link at the hearing.
Both parties made oral submissions at the hearing.

The applicant's case

The applicant submits that the correct and preferable decision is for the respondent's decision to be set aside, and for the Tribunal to order the respondent to grant her a WWCCC.

The respondent's case

The respondent submitted that the Tribunal should dismiss the application and affirm the decision to refuse the applicant a WWCCC. The respondent's position was that the applicant poses a risk to children and should not be granted a WWCCC on the basis of the mandatory considerations in s 30(1) and s 30(1A) of the Act.

Legislation

The Act establishes a regime of checks and clearances for persons working with children in NSW. The object of the Act is as follows: 3 Object of Act The object of this Act is to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.
The paramount consideration in the operation of the Act is found in s 4: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
The following definitions from s 5 are instructive in this matter: 5 Definitions (1) In this Act - … adult means a person who is 18 years of age or older. … child-related work - see sections 6 and 7. children means persons under the age of 18 years. … conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. … working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.
Risk to the safety of children is defined as follows: 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
By the operation of s 6 (child-related work), s 8 (restrictions on engaging in child-related work) and s 9 (employers must require clearance or current application) it is unlawful for a person to engage in child-related work without a WWCCC (or a current application for a clearance) and for an employer to employ a person in child-related work without the same.
Section 12 provides for two classes of clearances: volunteer - for a volunteer to engage in unpaid child-related work (12(1)(a)), and non-volunteer - for a worker to engage in paid and unpaid child-related work (12(1)(b)).
Section 13 allows a person to apply to the Children's Guardian for a WWCCC.
Various exemptions to the need for a WWCCC are provided in the Act and the Child Protection (Working with Children) Regulation 2013.
Section 14 specifies that an applicant for a WWCCC is subject to an assessment requirement as follows: 14 Assessment requirements A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.
Section 15 makes provision for the Children's Guardian to conduct a risk assessment as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following - (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (4A) The Children's Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied - (a) a reasonable person would allow the person's child to have direct contact with the applicant or holder - (i) while not directly supervised by another person, and (ii) while the applicant or holder was engaged in child-related work, and (b) the making of the determination is in the public interest. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 18(2) applies where the applicant is subject to a risk assessment and provides that the Children's Guardian must grant a WWCCC unless it is satisfied that the person poses a risk to the safety of children: 18 Determination of applications for clearances … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Section 27 makes provision for administrative review under the Act as follows: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
Section 30 provides guidance to the Tribunal when determining an application for review: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part - (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (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, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
Schedule 1 specifies triggers for a risk assessment under the Act. In this case the relevant part is found in Schedule 1, clause 1(4)(c): Schedule 1 Assessment requirement triggers 1 Offences … (4) A person has been convicted of any of the following offences - … (c) an offence under section 61 of the Crimes Act 1900, being an offence committed against a child while the person was an adult,

Background

The applicant is a 41-year-old Aboriginal woman living in Sydney. The applicant applied for a paid clearance under the Act for the purposes of being a support worker.

The trigger offence

The trigger offence was an assault under section 61 of the Crimes Act 1900 (Crimes Act), being an offence committed against a child while the person was an adult (trigger offence). The trigger offence occurred on 10 November 2020.
The victim was the applicant's 11-year-old child.
According to the police facts sheet, the victim was at home in the kitchen working on her speech for school with the applicant next to her. The applicant had written on a piece of paper to assist the victim in writing her speech. The victim stated that she was incapable of reading the applicant's handwriting as it was a little messy. The applicant became extremely upset with the remark about her handwriting and started to yell and swear at the victim. The victim kept quiet while being verbally berated by the applicant. The applicant then raised her right open hand and struck the victim's left forearm two to three times. The applicant then used the same hand and struck the victim on the left arm once with medium force while continuing to yell at the victim. Soon after the applicant raised her right open hand again and struck the victim on the left side of her face once with medium force causing the victim's face to become red. This caused the victim to feel immediate pain in her face. The victim began to cry and attempted to walk away however the accused demanded the victim stop crying and stay where she was.
The victim's father found out about the incident and the applicant was charged with one count of common assault (domestic violence related).
The applicant was 37 years of age at the date of the trigger offence and the victim was aged 11.
On 10 February 2021 the applicant was convicted of the trigger offence in the Local Court of NSW.
Where the respondent becomes aware that the applicant for a WWCCC is subject to an assessment requirement, the respondent must conduct a risk assessment of the applicant to determine whether the person poses a risk to the safety of children: s 15(1) of the Act.
Through the working of s 14 and Schedule 1, cl 1(4)(c) of the Act, a risk assessment is required where a person has been convicted of an offence under s 61 of the Crimes Act committed against a child, while the person was an adult.
After the respondent became aware of the trigger offence it conducted a risk assessment of the applicant as required by the Act.
The respondent obtained voluminous records about the applicant during (and subsequent to) its risk assessment process from NSW police, NSW Courts, the Department of Justice and Communities (DCJ), the Mental Health Review Tribunal and Community Mental Health Centres. This material was included in the documents provided by the respondent to the Tribunal in these proceedings and is referred to at various points in these reasons.
Under s 18(2) of the Act, the respondent must grant a WWCCC to a person who is subject to a risk assessment under Division 3 of the Act unless the respondent is satisfied that the person poses a risk to the safety of children.
The respondent refused to grant the applicant a WWCCC following its risk assessment because it is satisfied that the applicant poses a risk to the safety of children.

Administrative review under s 27 of the Act

Subsection 27(1) allows a person who has been refused a WWCCC to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (ADR Act) within 28 days after notice of the decision was provided to the person. The decision under review is dated 22 February 2024. The application for administrative review was filed on 19 April 2024, after the 28 day period. Leave was granted by the Tribunal on 23 May 2024 extending the time for the applicant to lodge the application to 19 April 2024.
In determining an application for review, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: s 63 of the ADR Act. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2) ADR Act.
The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
Neither the applicant or the respondent bears an onus in an application for review under s 27 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40].
The applicant has a duty to fully disclose any matters relevant to the application to the Tribunal: s 27(4) of the Act.
Following an application under s 27, a clearance may not be granted subject to conditions: CDX v Children's Guardian [2016] NSWCATAD 17 at [36].
Under s 30(1A) of the Act an order enabling a person to work with children may not be made unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
The Tribunal must consider each of the matters in s 30(1) of the Act to assess whether it is satisfied that the applicant does or does not pose a risk to the safety of children. If the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that the (a) "reasonable person" test and (b) the "public interest" test in s 30(1A) of the Act have been met: Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].
The Tribunal's approach to the exercise is protective not punitive: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61].

Whether the Tribunal is satisfied that the applicant does not pose a risk to the safety of children

"Risk to the safety of children" is defined in s 5B of the Act as "a real and appreciable risk to the safety of children".
As was noted in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26] the concept of "risk to the safety of children" s 28(7) invokes: the following explanation given by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42] ("V") in relation to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of the children'."
The Tribunal's process of assessment of risk was described by Simpson AJA in CXZ v Children's Guardian [2020] NSWCA 338 as follows: The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

The applicant's insight and risk factors

The applicant was cross examined by the respondent. The applicant presented reasonably well when describing more recent events and positive changes in her life. The applicant became defensive when exploring sensitive issues about her past misconduct and was uncooperative at times when questioned about her criminal history.
The applicant receives the Disability Support Pension. She has no partner currently. Her two children under 16 years of age live with her 3 to 4 days per week in a shared care arrangement as agreed with their father.
The applicant expressed frustration that the process of applying for a WWCCC has taken 3 years. The applicant wants to undertake support work for adults. Although this is not child-related work, employers routinely require a WWCCC for these roles, and the applicant has not found work as a result. The applicant said that she is not able to volunteer at the soccer canteen during her child's sporting activities without a WWCCC, which she described as "degrading".
The applicant acknowledged that she has had a lot of mental health issues. Various occurrences in her life contributing to this include her mother's untimely death by suicide, her father's death, her marriage break-down, being committed to a mental health facility where she was mistreated, and being in trouble with the police. She has been diagnosed with schizoaffective disorder (bipolar type), for which she takes medication daily. She was diagnosed with Post Traumatic Stress Disorder (PTSD) two years ago, which is related to her mistreatment in a mental health facility.
The applicant has been admitted to mental health facilities on quite a few occasions. She has received long term mental health treatment, including being subject to Community Treatment Orders (CTO) managed by the local Community Mental Health Team (CMHT). This involves the administration of paliperidone depot injections, an extended-release treatment for schizophrenia. The applicant said that she has not been subject to a CTO since April 2024 and referred to a letter from her treating Doctor at the CMHT confirming the CTO expiry date. The applicant said that she voluntarily gets her injections now through her local Doctor, in the absence of a CTO, to be on the safe side. The applicant sees her psychiatrist with the CMHT once a month. The applicant conceded that any time she has not been receiving her injections for her mental health in the past, that would lead to a decline in her mental health and court appearances for criminal matters.
The applicant said that she does not have mental health issues anymore. She acknowledged that she still has bi-polar and will have it "forever". She accepted that her mental health and drug misuse don't go well together and that this causes psychosis. The applicant admitted using illicit drugs on and off for two years, including methamphetamine for one year. The applicant stated that she never bought drugs - and explained that they were shared with her by others. She has been drug-free for over a year now, for about 14 months. She claimed to be a functioning mother even when she was misusing drugs. The applicant acknowledged that in March 2022 DCJ was involved with her family because there was a period of 4 to 5 months when her children were living with their father because she was homeless. She denied excessive discipline of her children but admitted to yelling at them sometimes.
The applicant submitted that she is not the same person that she was a few years ago. She asked the Tribunal to see past her record and give her "the chance to have a successful life". The applicant attested to being a stable and responsible person now. She referred to recent successes including speaking at NSW Parliament House on behalf of the housing company she is involved with regarding the cost of living, the shortage in social housing and the rental crisis. She received a scholarship and completed eight courses in five years including studies in mental health (Certificate IV through TAFE), counselling (through the University of Sydney), emotional intelligence (through AIP counselling), and a NDIS course. The applicant attends her local Aboriginal neighbourhood centre twice a week to get involved in her local community.
The applicant described her criminal history as consisting of "petty charges" and "small minor crimes" and felt as though she was being unfairly treated as a serious criminal in this process. The applicant submitted that the respondent was discriminating against her because of her past mental illness in concluding that she posed a risk to children.
The Tribunal considered that the applicant tended to minimise her past criminal offending and lacked insight into why the risks associated with her past conduct may give rise to concerns for the safety of children.

The considerations in s 30(1) of the Act

The Tribunal must consider the matters set out in s 30(1) of the Act in determining whether the applicant poses a risk to the safety of children.

Section 30(1)(a), (b) and (h) - The seriousness of the matters which caused the refusal, the period of time since the offences, the seriousness of the applicant's criminal history, and the conduct of the person since the offences occurred

The relevant period of the applicant's criminal offending spans the years 2016 to 2023. The offending behaviour appears to coincide with periods of instability in the applicant's mental health and is also related to the applicant's use of alcohol and illicit drugs.
The offences include larceny, driving offences (multiple PCA offences and one count of driving a motor vehicle with a prescribed illicit drug present in oral fluid, being methylamphetamine), dishonestly obtaining property by deception, destroying or damaging property (multiple counts), goods in personal custody suspected of being stolen, shoplifting, not wearing a fitted face covering in public transport or taxi, using offensive language in or near a public place or school, driving while licence cancelled.
The respondent conceded that most of the applicant's offending is minor and consists of offences not directly involving children or clearly creating a risk to the safety of children. However, the respondent expressed concern that the tendency of the applicant's offending demonstrated "disinhibited, erratic and unpredictable behaviour and in public - for example at a train station and at a shopping centre." The respondent submitted that this serves to increase the seriousness of the offending within the scope and purpose of the Act due to the risk of harm arising from public misconduct of this type more generally. The Tribunal accepts this submission.
The applicant submitted that the crimes that she committed were "petty". The Tribunal is unable to accept this submission as certain offences on the applicant's record are simply unable to be categorised in such terms. The trigger offence is not a trivial matter. Other serious offences include one count of common assault under s 61 of the Crimes Act and one count of stalking or intimidating with the intention of causing fear of physical or mental harm under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (both domestic violence related) from 1 September 2017, and two separate counts of assaulting a police officer in the execution of the officer's duty under the Crimes Act from 21 August 2022 and 13 October 2022.
The applicant stated that she has "never hit a child", although she admitted that she "smacked" her daughter "on the hand" a few years ago, and was charged with assault (the trigger offence). The applicant explained the matter to the Tribunal as follows. She was helping her daughter with her homework in the kitchen when her daughter said "what a shit mother" to her. The applicant went to smack her daughter on the hand and hit her daughter's fingernail. The applicant went to smack her daughter a second time, and chased her around breakfast bar to do so. Her daughter put her hand up when the applicant went to smack her hand and the applicant's hand touched her daughter's face, but not hard enough to be described as a slap, or to leave a mark. The applicant explained that her ex-partner was bitter about their breakup and took their daughter to police and asked her to report the incident. The applicant said that she did not want to defend the charge because that would involve her daughter having to attend court to give evidence and she did not want to put her child through that. The applicant did not express remorse for her conduct before the Tribunal and appeared to be exasperated that she had been charged with the offence at all.
The Tribunal agrees that the version of events that the applicant gave to the Tribunal is much less serious than what is stated in the police facts (see [31]). As previously indicated at [61], the Tribunal considered that the applicant tended to minimise her past criminal offending. However, even on the applicant's version, she struck her daughter once on the hand and once on the face, even if the latter was unintentional, and less force was involved. The applicant explained that she did not want to put her daughter through the court process by defending the charge, which is understandable. It is difficult to believe that her daughter's father would insist on the matter being reported to the police if the applicant's version of the incident is correct, even following a difficult breakup. The Tribunal considers it to be just as likely that after her daughter informed her father of the incident, (the version of the incident relayed in the police facts), her father insisted on reporting it to the police because he was aware of the applicant's capacity for violence, having been the victim of an assault from the applicant in 2017 (referenced at [66], [70] and [81]).
The applicant pleaded guilty to the trigger offence and was convicted. She has not sought to overturn the conviction. The Local Court transcript on sentencing for the offence shows that the court accepted what the applicant told the Community Corrections Officer, as reported in a Sentencing Assessment Report, that she "admitted to hitting her daughter and becoming enraged quickly however conceded she did not intend to cause her any injury or fear". Although the applicant has sought to provide some important further context to the Tribunal, her admission to assaulting her daughter has not changed. Even if the applicant's explanation were to be accepted in its totality, the elements of the offence are still established. The Tribunal has taken the applicant's explanation of the matter into account. The Tribunal remains concerned that the applicant's conduct poses a risk to the safety of children. In the context of the Act, the Tribunal considers the common assault of a child, in this case the applicant's 11-year-old daughter, to be a serious matter.
In relation to the two domestic violence and common assault convictions (one of which is the trigger offence) the respondent submitted: The Applicant has two domestic violence common assault convictions for punching and pushing her ex-partner while verbally threatening him and slapping her daughter on the arm and face. The Applicant has also been convicted of breaching an Apprehended Violence Order, including sending threatening messages. These offences are made more serious because they are domestic and occurred in the home, where the victims were entitled to feel safe. The direct violence against her child seems to have happened in an outburst which suggests a lack of control that could put people around her at risk of harm. The offence against the applicant's daughter is particularly serious in the context of the Act because it involved the materialisation of a risk of harm to the applicant's daughter.
The Tribunal accepts these submissions generally.
In relation to the convictions for assaulting a police officer, the first involved the applicant pouring a clear liquid on a police officer at a police station and stating, "Die Lucifer". The second conviction involved the applicant spitting on a police officer who had asked her to stop blocking entry to the wheelchair access at a train station in Sydney. Although these offences did not cause injury to the police officers concerned, they are serious because they involve threatening and disrespectful behaviour towards police officers in carrying out their duties.
The applicant has not offended in about 18 months. The respondent submitted that this is a relatively short period of time given the number of offences committed by the applicant over the preceding seven years. The Tribunal agrees with this submission.
The applicant's most recent period in a mental health unit ended in October 2022. In August 2023 the applicant was receiving paliperidone depot injections. She was subject to a CTO that was due to expire on 26 April 2024. The applicant gave evidence that the CTO expired and was not renewed at that time. The applicant provided a reference from her treating Doctor from the local CMHT dated 8 July 2024 stating that she "attends her appointments regularly and complaint [sic] with her treatment". The Tribunal interprets this as a typographical error and that the author of the letter intended to state that the applicant has been "compliant" with her treatment. The applicant appears to have been successful in ceasing her substance abuse.
The applicant has pursued pro-social activities such as studying courses, volunteering, and employment. The applicant has completed several courses including in mental health, Aboriginal culture, mentoring, anger management, a NDIS certification, and is currently enrolled in cultural arts at TAFE. The applicant participates in her local Aboriginal neighbourhood centre and has worked in a mental health support organisation and a florist.
The respondent submitted that the seriousness of the applicant's conduct, and the short period of time which has passed since the conduct occurred, would support a finding that the applicant poses a risk to the safety of children.

Section 30(c) and (g) - The applicant's age now and at the time the matters occurred

The applicant is 41 years of age.
The applicant's first offence occurred when she was 20 years old.
The applicant's recent offending occurred over a seven-year period, from when she was 32 years old through to the age of 39.

Section 30(1)(d), (e) and (f) - The age and vulnerability of the victim, and the age difference and relationship between the applicant and the victim, and whether the applicant knew the victim was a child

The victim was aged 11 years at the time of the trigger offence. The applicant is the victim's mother. The victim was vulnerable because she was a child, was dependent on the applicant for care, and had been diagnosed with Autism, ADHD, depression and anxiety.
The victim of the applicant's other common assault offence was her partner, a person who was in a domestic relationship with the applicant at the time. The victim was vulnerable because the offending occurred in a domestic situation.
The Tribunal is not aware of any particular vulnerabilities of the victims of the property and driving offences.
The victims of the applicant's other offending included police officers. The respondent submitted that NSW Parliament has recognised the vulnerability of police officers to the extent that the maximum penalty for assaulting a police officer is higher than the penalty for assaulting other civilians in the community. The Tribunal agrees that police officers are often vulnerable due to the risks they are exposed to in their front-line work in law enforcement, emergency services and public safety in service of the community. The Tribunal accepts that the police officers who were victims of the applicant's offending were vulnerable by virtue of their roles.

Section 30(1)(i) - The likelihood of repetition of the relevant conduct by the applicant and the impact on children of any repetition

The applicant has not offended since 19 April 2023. This is a positive development, for which the applicant is to be commended.
However, as the respondent pointed out, this is a relatively short period of time. The respondent submitted that the applicant is highly likely to reoffend should she relapse into substance misuse, or cease her mental health treatment, or both. The respondent submitted that: The Applicant wrote in her application that her index offending was caused by a breakdown because both her parents passed away and her marriage broke down. Whilst the Applicant has had a recent period of stability, the Guardian invites the Tribunal to find that it is not long enough to demonstrate that she can remain offencefree in the longer term. The Guardian holds particular concerns regarding any relapse in mental health subsequent to drug relapse. If the Applicant experiences any further challenges or stressors (including stressors which are out of her control), her mental health may suffer or she may resume substance use, leading to further offending.
The Tribunal agrees with this submission.
The applicant has taken significant steps towards making positive changes in her life including no criminal offending in the last 18 months, no substance misuse for over 14 months, voluntarily complying with her mental health treatment, undertaking volunteer work and successfully completing her studies in a range of different areas.
The Tribunal considers that it is likely that the applicant's mental illness and substance misuse are primary factors in her previous offending and erratic behaviours. A relapse in either of these areas could have serious consequences for her overall functioning and current positive rehabilitation trajectory, which would directly affect the risk posed by the applicant to the safety to children. Positive behaviour change by the applicant, sustained over a period of years, would assist the Tribunal to have confidence that the likelihood of repetition of the offending behaviour is low. This is not the situation currently. At this stage the Tribunal holds residual concerns about the applicant's likelihood of reoffending.
The impact on a child victim of the applicant reoffending, depending on the circumstances of the offence, would be significant. For example, common assault of a child would likely cause significant harm.

Section 30(1)(i1) - Any order of a court or tribunal that is in force in relation to the person

A CTO was in force for the applicant that was due to expire on 26 April 2024. The applicant informed the Tribunal that the CTO has expired and was not renewed. No documentation was provided to the Tribunal conclusively showing that the applicant is no longer subject to a CTO. The applicant seemed reluctant to seek or obtain confirmation of this in writing for the Tribunal.
Following the hearing the Tribunal made a direction allowing the applicant to provide further information to the Tribunal about her current mental health treatment regime within 14 days if she chose to do so. The Tribunal explained to the applicant during the hearing that this material may be of assistance in its determination in this matter. At the date of these reasons the applicant has not provided anything further to the Tribunal in response to this direction.
In these circumstances the Tribunal concludes that the CTO is no longer in force and that the applicant's mental health treatment is entirely voluntary. The respondent submitted that the lack of information about this was concerning because voluntary compliance creates more uncertainty than a CTO would provide, given the applicant's mental health history.

Section 30(1)(j) - Any information given by the applicant in, or in relation to, the application

This information, relevantly considered here, is referred to earlier in these reasons, including at [53]-[60] and [67].
In her application for administrative review filed in the Tribunal the applicant wrote: I was denied Working With Children Check & that I pose risk to children due to my past petty crimes during a mental breakdown after parents death (circumstances have since recovered).

Section 30(1)(j1) - Any relevant information in relation to the person that was obtained in accordance with s 36A

No information was obtained in accordance with s 36A of the Act.

Section 30(1)(k) - Any other matters that the Children's Guardian considers necessary

The respondent referred to the material produced by DCJ which was provided to the Tribunal. The respondent cited concerns that DCJ held for the applicant and her children while in her care due to her substance misuse, mental illness, excessive discipline, and risk of homelessness. The Tribunal notes that these concerns were recorded as recently as May 2022.

Conclusion as to risk to the safety of children

The Tribunal is satisfied that: 1. The applicant's period of criminal offences from 2016 to 2023 was characterised by disinhibited, erratic and unpredictable behaviour, often in public, which increases the seriousness of the offending within the scope and purpose of the Act due to the risk of harm arising from antisocial behaviour of his type more generally. 2. Offences of particular seriousness include: 1. The applicant's assault and domestic violence offences, which occurred in domestic situations where the victims were entitled to feel safe. 2. The trigger offence (common assault of a child), which involved physically assaulting her daughter after the applicant became enraged quickly, suggesting a lack of control that could put people around her at risk of harm. 3. The two offences of assaulting a police officer, which involved threatening and disrespectful behaviour towards police officers in carrying out their duties. 1. Overall, the applicant's offending behaviour gives rise to a risk to the safety of children. 2. The applicant's offending behaviour appears to coincide with periods of instability in the applicant's mental health and is also related to the applicant's use of alcohol and illicit drugs. 3. The applicant has made commendable inroads over the past 16 to 18 months (prosocial decisions including no criminal offending, being drug-free, maintaining her mental health treatment, studying courses, volunteering, and employment). 4. The past 16 to 18 months is a relatively short period of time given the number of offences committed by the applicant over the preceding seven years which leads to concerns that any relapse in mental health, subsequent to, or associated with, drug relapse, may lead to further offending. 5. The applicant tended to minimise her past criminal offending and lacked insight into why the risks associated with her past conduct may give rise to concerns for the safety of children.
For these reasons the Tribunal is satisfied that the applicant poses a risk to the safety of children.

Conclusion

In all the circumstances and considering the s 30(1) criteria, on the material before it, the Tribunal has found that the applicant poses a real and appreciable risk to the safety of children.
Even if the Tribunal was satisfied that the applicant did not pose a risk to the safety of children, we would not make an order which had the effect of enabling her to work with children in accordance with the Act as: 1. We are not satisfied 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; 2. We are not satisfied that it is in the public interest to make such an order.
It follows that the application must be refused.

Order 1. The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2024

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Judgment (24 paragraphs)

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Cases Cited (8)