Victorian Civil and Administrative Tribunal|2011-12-19|Before: Mr J

YEE v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 2399 (19 December 2011)

Working with Children Act 2005 - Application for assessment notice - Application categorised as a category 2 application; whether unjustifiable risk to the safety of children; section 26 Working with Children Act 2005 Direction to Secretary to grant assessment notice.

YEE v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 2399

The Tribunal directs the Respondent to give an assessment notice pursuant to the Working with Children Act 2005 to the Applicant.

On 9 December 2010, Victoria Police advised the Working With Children Check Unit that a routine ongoing check had determined that YEE had been charged on 29 November 2010 with the offence of "make threat to kill" and "recklessly cause injury".

On 20 December 2007, YEE was given an Assessment Notice under section 10 of the Working With Children Act 2005 (the Act). The Secretary can revoke a person's Assessment Notice at any time once a person's eligibility to have that notice has been reassessed. A person's eligibility to continue holding an Assessment Notice must be reassessed by the Secretary in a range of circumstances, including when notified by Victoria Police that the person has been charged with a "relevant offence" within the meaning of section 3(1) of the Act.

Section 13(1)(b) of the Act provides that an application is a category 2 application for the purposes of the Act if it is in respect of a person who has been found guilty of an offence specified in clause 2 of Schedule 1 to the Sentencing Act 1991. The offence of "make threat to kill" is an offence specified in clause 2 of schedule 1 to the Sentencing Act 1991, as it is this offence against section 17 of the Crimes Act 1958. The offence of "recklessly cause injury" would otherwise classify this application as a category 3 application.

The Secretary must find a person ineligible to have an Assessment Notice on a category 2 reassessment unless satisfied that allowing them to retain the Assessment Notice would not pose an unjustifiable risk to the safety of children having regard to the matters set out in subclauses (a) to (j) of section 13(2). Having regard to those factors the delegate of the Secretary to the Department of Justice, issued YEE an interim negative notice on 23 December 2010. YEE was invited to make a submission to the Working wit Children Unit. YEE responded with a submission which was received by the unit on 25 January 2011. On 5 August 2011 YEE was given a Negative Notice.

Section 26(5)(b) of the Act enables a person who is refused an Assessment Notice to apply to VCAT for a review of the decision to give the notice.

On 18 August 2011 YEE applied to the Tribunal for a review of the decision.

On 24 August 2011 Deputy President C. Aird made an order that the applicant in this proceeding be anonymised and referred to as "YEE" and that pursuant to section146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, no person other than a party to the proceeding or the legal representatives may inspect the tribunal file.

On 9 September 2011 following a hearing, the operation of the decision to issue the negative notice was stayed until the determination of the application for review.

The matter came before me for hearing on 30 November 2011. VCAT has power, on an application under subsection 26(5), to affirm the decision to give the Negative Notice or set it aside and either give an Assessment Notice or send the matter back to the Secretary for re-consideration.

I will discuss each of the criteria as it relates to YEE's application in turn:

Section 13(2)(a) Nature and gravity of the offence and its relevance to child-related work

"On the 26/11/10 the applicant and the victim had an argument: the applicant started yelling at her daughter, the victim. The applicant then grabbed the victim around the throat with both hands and squeezed making it difficult for the victim to breathe. The applicant also said words to the effect of "I am going to kill you, I wish you were dead." The father stood by and watched but did not intervene. The victim has obvious bruising to her throat. DHS was notified".

During her evidence YEE significantly downplayed the incident. She gave evidence that the marks left on her daughter's throat came about as a result of her falling against her daughter rather than deliberately grabbing her. (It is common ground between the parties that some of the "bruising" was partly attributable to the fact that the daughter was wearing a nickel necklace and there was therefore staining not bruising). YEE denied that her daughter had any difficulty breathing or that there was anything other than words involved in the threat to kill. She inferred that she pleaded guilty for reasons of convenience.

I am concerned that YEE continued to consider the incident to be somewhat trivial and to attribute responsibility for the incident onto her daughter's shoulders. Any offence against a child is serious and the parent/child relationship places a special obligation on parents. YEE has clearly found the role of being the parent of a teenager challenging, however this does not in any way excuse her conduct. Nor is her conduct excused or diminished by virtue of her daughter's so-called "difficult artistic" personality.

Nevertheless, I accept that the category 2 offence, namely the threat to kill, is at the lower end of the scale, it being highly unlikely that the threat was ever (intended) to be effected. YEE acknowledges that her daughter was very frightened and she has expressed a degree of shame and remorse for the incident.

I also accept that the incident happened during a period of time when family relations were under a degree of strain.

Section 13(2)(b) Period of time since the Applicant committed the offence

The offence occurred on 26 November 2010, only one year ago.

The passage of one year without further incident gives some reassurance that this was a 'one-off' incident, however it is not a significant period of time.

Section 13(2)(c) Whether finding of guilt/conviction recorded for the offence

On 22 February 2011, YEE was found guilty without conviction of the relevant offences at the Magistrates Court of Victoria at Moorabin.

Section 13(2)(d) the sentence imposed for the offence

No conviction was recorded. The Court adjourned the matter to 22 February 2012 for YEE to be of good behaviour during the period of the adjournment. She was ordered to pay $400 to the court fund.

Section 13(2)(e) The ages of the applicant and of any victim at the time the applicant committed the offence

YEE was aged 51 years at the time of the offence and the victim was 13 years of age. The age differential is significant.

Section 13(2)(f) Whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it

Section 13(2)(g) the applicant's behaviour since she committed the offence

There have also been no reports of further incidents involving YEE and her daughter.

In October 2010 Child Protection received a report alleging that YEE had inappropriately disciplined her daughter (prior to these offences). Subsequently the Department of Human Services investigated. The matter proceeded to Court for a protection application. The application was found proven and finalised with YEE making an undertaking to the court to complete a course in anger management; not expose the child to physical or verbal abuse and to engage with a family support worker. The Department of Human Services closed the matter on 24 December 2010 as YEE was addressing the concerns that led to the child protection involvement.

YEE has demonstrated through professional assistance some insight into her offending. I was provided with a report from her General Practitioner, Dr Eleanora Freeman dated 28 November 2011. Dr Freeman states:

[YEE] has been extremely compliant with both pharmacotherapeutic recommendations as well as psychotherapy attendance. She is very aware these were implemented in assisting her in reduction of anxiety and stress associated with child rearing. She has developed good strategies in identifying and dealing with problem situations and is much better equipped at dealing with anger and frustration, which led to Depressive Anxiety escalation in 2010. I believe that she is quite stable, with respect to physical and mental health"

YEE has consulted with Ms Faina Shapiro, psychologist over 18 sessions. Ms Shapiro gave evidence at the hearing. She described the engagement with YEE as including lessons in communication and stress and anger management techniques. There has been a focus on reframing and relaxation.

I accept that YEE has adopted a scientific approach to the predicament she has found herself in and has conscientiously set about addressing the problems. She gave evidence as to the way in which she implements the various techniques taught to her through her counselling sessions in her everyday interactions with her daughter(s). This was all very encouraging.

YEE, together with her family, has also had five family therapy sessions through the Alfred Hospital Youth and Mental Health Service. I heard evidence from Ms Grane who is a psychiatric nurse and who is YEE's daughter's case manager.

I accepted Ms Grane's evidence that the family situation has improved considerably and that the therapy has assisted all members of the family to engage with each other more effectively. Conflict levels have subsided.

I accept that YEE implements her learnings and that the family have now scheduled quality time together in an otherwise extremely busy schedule.

Section 13(2)(h) Likelihood of future threat to child caused by the Applicant

This question goes to the heart of the legislative provisions.

In LQK v Secretary, Department of Justice [2011] VSC 277, Justice Kyrou said [at 72]:

"any chance of a future threat, irrespective of its magnitude, is a relevant consideration under s. 13(2)(h). Clearly, where the chance is minimal, the consideration may favour the applicant. The greater the chance, the less favourable is the consideration from the applicant's perspective."

It was submitted on behalf the Secretary that the level of threat can only be analysed by an examination of past behaviour and the circumstances surrounding that behaviour.

The Secretary urged me to find that because YEE suffers from an anxiety disorder for which she still receives treatment and that there are ongoing stresses in her life, that there remains a degree of risk.

Ms Shapiro's engagement with YEE included a Personality Assessment Inventory. The results of the Personality Assessment Inventory were compiled in a report dated 16 November 2011 and presented to the Tribunal. In summary the report concludes that:

"It has been demonstrated by the test results that the applicant is an emotionally stable individual, that she is considerate and warm in her relationships with others. In addition it has been shown by the results that the applicant exhibits reasonable control over impulses and behaviour, and has a reasonable control over the expression of anger and hostility. The applicant's results on violence potential index (VPI) suggests that there is no presence of risk factors for dangerousness"

Ms Shapiro supported the findings in her evidence. She was confident that communication difficulties lay at the heart of the offending in this case, rather than personality deficits.

I accept that YEE's scores on the Personality Assessment Inventory show no clinical significance. This suggests that the treatment she has received from both her general practitioner and psychologist has been useful and that her symptoms of anxiety have subsided.

Both parties referred me to previous determinations of VCAT. What is clear from those cases, is that the consistent approach of the Tribunal has been to deal with each case on its own merits. It is not simply a matter of stepping through the legislative steps - the whole of the evidence must satisfy the Tribunal that children will be protected by ensuring that the suitability of a person to work with children is checked. The Applicant does not, however have to show extraordinary circumstances; there does not have to be a finding of zero risk.

I accept that there is an age, personality and cultural gap that made the sometimes difficult task of child raising even more complex for this family and that it was in this setting that YEE's offending occurred. I accept that YEE has taken her offending extremely seriously and addressed the underlying issues to ensure there is no repeat

Section 13(2)(i) any information given by the applicant in or in relation to the application.

YEE is the primary breadwinner for the family. Her husband has chronic diabetes and accordingly his working capacity is greatly diminished. YEE earns $47,000 per year and has a $300,000 mortgage.

YEE's life is stressful. She works 5 days per week leaving home at 7.30am and not returning until 7.30pm at which time she prepares meals and engages in the rest of the household chores. She has two teenage daughters who attend secondary school. YEE has little time for rest.

It would be difficult for her to retrain or find alternative employment.
I accept that YEE has continued to address the personal and family issues including health issues which led to the incident the subject of this application.

The Act seeks to assist in protecting children from sexual or physical harm by ensuring that people who engage in "child-related work" have their suitability to do so checked by a government body. Section 9 of the Act defines "child-related work" as work of the kind set out in that section that involves or is likely to involve, regular direct contact with a child in connection with a service, body, place or activity specified in section 9(3) in circumstances where that contact is not directly supervised by another person. The Act provides that it is an offence for those who engage in child-related work to do so without an Assessment Notice and a person issued a Negative Notice is precluded from applying for child-related work.

I was encouraged by the Secretary to find that YEE is directly supervised in all of her work with children and that she does not therefore require a Working With Children Notice. The Secretary expressed concern that there is an ever-increasing trend by employers to use the Act and, indirectly, the Tribunal as a vetting house for employees.

YEE has worked with the Department of Computer Engineering and Applied Sciences at a TAFE for 11 years She works as a laboratory technician. Since 2005, it has been a prerequisite for technical and administrative officers at TAFE to have a current Working With Children Assessment Notice.

I was shown the relevant TAFE policy document which, in summary, reflects the Institute's policy to require all staff, unless exempt, to hold a current Assessment Notice and that it is effectively a condition of employment.

Having heard the evidence of YEE I accept that her work involves frequent direct contact with children aged 15 to 17 years. I accept that her employment requires her to set up equipment in student laboratories, prepare experiments in the student practical laboratory classes, assist teachers in preparing students for each of the practical exercises and assisting students with practical, safety and technical issues. I accept that she is in close proximity to students whilst they use laboratory equipment. I further accept that she consults with students during laboratory sessions and encounters them during breaks and that this is occasionally one-on-one without supervision. I also accept that she assists students on field trips within Victoria where students collect plants, animal and pollution samples. The nature of working in the Institute means that she can rarely avoid direct contact with children in her everyday work role. I also accept that YEE hopes that there will be career progression for her. She intends to begin a certificate IV qualification. She aspires to be a senior lab technician and thereafter a team leader/manager.

I accept on the evidence before me that YEE and her employer legitimately require a Working With Children assessment notice.

Is it in the public interest for the Secretary to give an Assessment Notice to YEE?

However cl 102 of sch 1 to the VCAT Act does contemplate that, notwithstanding that a category 2 applicant may satisfy s. 13(2) of the Working with Children Act public interest considerations may justify the rejection of his or her application. For example, evidence that an applicant was dishonest, or suffering from a serious mental illness, or had problems with drugs or alcohol could be taken into account adversely to the applicant under cl 102. Conversely, evidence that the applicant had skills that could benefit children or that he or she was a positive role model for children could be taken into account in favour of the applicant under cl 102.

YEE is a committed professional, dedicated to her job in science teaching laboratories. The impact on YEE's employment and family would be devastating if she were unable to obtain an Assessment Notice. I accept that it would be difficult for her to find alternative employment and that she is the sole wage earner for the family. I consider that it is in the public interest that YEE remain in full-time employment and continue rebuilding her life with her family. It is not the aim of the legislation to stop families from being able to function. The Court proceedings to do with this matter have been a salutary lesson for YEE.

I am satisfied that YEE does not pose an unjustifiable risk to the safety of children and in all of the circumstances it is in the public interest to direct the Secretary to give an Assessment Notice to YEE.

I will direct the Respondent to give an Assessment Notice pursuant to the Working with Children Act 2005 to the Applicant.

Civil and Administrative Tribunal Act 1998

YEE v Secretary to the Department of Justice

At a glance

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Judgment (67 paragraphs)

YEE v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 2399 (19 December 2011)

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Legislation Cited (2)