Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Hearing dates: 11 February 2014 Decision date: 23 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application for an enabling order is refused. Catchwords: Working with children clearance - application for enabling order by disqualified person - presumption the applicant poses a risk to the safety of children - whether the applicant has proven the contrary Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People Act 1998 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 L v Commission for Children and Young People & anor [2008] NSWIRComm 195 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 Category: Principal judgment Parties: AYU (Applicant) Office of the Children's Guardian (Respondent) Representation: D Hannaway (Applicant) D Ward - Crown Solicitor's Office (Respondent) File Number(s): 134019 Publication restriction: Due to the sensitivity of these proceedings the name of the applicant is not to be published: see s 65 of the Civil and Administrative Tribunal Act 2013 reasons for decision Introduction 1The applicant, AYU, is a disqualified person, under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the Act), by reason of her conviction, in April 2002, of the manslaughter of her 14 month old daughter. The applicant seeks an 'enabling order', under subs 28(1) of the Act, as the respondent, the Office of the Children's Guardian, refused her application for a working with children check clearance, under subs 18(1). That refusal was mandatory, by reason of the applicant's conviction, which is an offence listed at cl 1(1)(b) of Schedule 2 of the Act. 2If granted, the enabling order will have the effect of declaring that the applicant is not to be treated as a disqualified person, for the purpose of the Act, in respect of her 2002 conviction and she will be granted a working with children check clearance to work in 'child-related work', which is defined in s 6 of the Act. 3The applicant has made this application as she wishes to work, part-time, as a High School teacher assistant. 4The respondent opposes the making of the order sought. 5For the reasons set out below, I am not satisfied the applicant has discharged the onus placed on her, under subs 28(7) of the Act, in order for the Tribunal to make the order sought. Transitional provisions 6The applicant made her application for an enabling order on 29 July 2013. That application was lodged with the Administrative Decisions Tribunal (see Administrative Decisions Tribunal Act 1997 as it applied at that time). As anticipated, and prior to the hearing of the applicant's application, on 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of GIPA Act continuing to apply. The working with children legislative scheme 7It is convenient to first deal with the relevant provisions of the Act (i.e. the Child Protection (Working with Children) Act 2012). The Act makes provision for a new legislative scheme regulating those who can engage in, or continue to engage in child-related work. The Act came into force, on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme in Part 7 of the Commission for Children and Young People Act 1998: see cl 6 of Schedule 4.2 of the Act. 8Part 1 of the Act contains provisions in relation to the commencement of the Act, its objects and definitions of terms used within the Act. 9The objects of the Act are set out in s 3 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. 10S 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. 11The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word 'child' has the same meaning. 12Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss 6, 8 and 9 within this Part. 13Subs 6(1) of the Act provides that a person is engaged in 'child-related work' for the purpose of the Act if: (a) the person is engaged in work referred to in subs 6(2) that involves direct contact by the person with children, or (b) the person is engaged in a child-related role referred to in subs 6(3). 14The term 'direct contact' with children is defined in subs 6(4) to mean (a) physical contact, or (b) face to face contact. 15Subs 6(2) provides that the work referred to for the purpose of subs 6(1)(a), is work for, or in connection with any of the activities, as listed in para 6(2)(a) to (m), and which are declared, by the regulations, to be child-related work. Included in the activities in subs 6(2), is 'education' in schools: see para 6(2)(g). 16Part 2 of the Child Protection (Working with Children) Regulations 2013 (the Regulations) declares those aspects of the activities, listed in para 6(2)(a) to (m) of the Act which are child-related work. Cl 10 of the Regulations provides that work in schools is child related work. 17There is no dispute that engaging in work, as a teacher's assistant is child related-work. 18Subs 8(1) of the Act prohibits a person from engaging in child-related work, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 19Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 20Part 3 of the Act deals with working with children clearances. That Part is divided into 6 Divisions as follows: (1)Division 1, sets out the classes of clearance. There are essentially two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: see s 12 of the Act; (2)Division 2, deals with applications for clearances: see s 13 of the Act. Such applications are made to the Children's Guardian; (3)Division 3, deals with risk assessment of persons who have made an application for a clearance or who are holders of a clearance. S 15 makes provision for the Children's Guardian to conduct such risk assessment and if appropriate, while making such an assessment, the Children's Guardian has the power to impose an interim bar, on the person, the subject to a risk assessment, pending determination of the clearance application; (4)Division 4, deals with determinations, by the Children's Guardian, of applications for clearance. I have dealt with the provisions in this part in more detail below; (5)Division 5, deals with the duration of a clearance (5 years) and the circumstances in which a clearance can be cancelled: see ss 22 to 24; (6)Division 6 - establishes the working with children register. 21Subs 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a working with children check clearance to a 'disqualified person'. That subs is in the following terms: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 22The word 'conviction' is defined in subs 5(1) to include '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 conviction.' As I have mentioned, a conviction for the offence of manslaughter of a child (other than as a result of a motor vehicle accident) is an offence listed in Schedule 2 of the Act. 23Part 4 of the Act deals with reviews and appeals. 24S 26 provides that where: (a) a person has been convicted of the murder of a child, or (b) the person's application for a clearance has been refused wholly or partly on the grounds that the person has been charged with an offence, which has not been finally determined, cannot make an application under this Part. 25S 27 makes provision for administrative review, by NCAT, of decisions of the Children's Guardian to: (a) refuse a working with children check clearance, (b) to cancel a person's clearance and (c) impose an interim bar on a person's clearance. As I have mentioned, where a person is a 'disqualified person,' para 18(1)(a) of the Act operates as a mandatory refusal. Accordingly, on administrative review, the same mandatory refusal provision would apply. 26S 28 deals with 'disqualified persons'. That section is in the following terms: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) (Repealed) 27S 30 sets out how an application under s 27 is to be determined by the Tribunal. It is in the following terms: 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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal. (3) (Repealed) Evidence 28In support of her application the applicant tendered into evidence an affidavit sworn by her, on 6 December 2013. The applicant also gave sworn oral evidence and was cross-examined during the course of the hearing. 29In addition to her own evidence, the applicant tendered into evidence an affidavit sworn by Ms N, a fellow parishioner at the church she and her husband have attended since 2002. Ms N was not required for cross- examination during the course of the hearing and the respondent had no objection to the contents of the affidavit of Ms N. 30The solicitor for the applicant also handed to the Tribunal, without objection, a case summary, which outlined the documents relied on by the applicant together with a chronology of events and an outline of the applicant's arguments. 31The respondent tendered into evidence: (1)A chronology that was more detailed than that provided by the applicant's solicitor; (2)A statement, dated 17 December 2013, from the school support assistant at the local high school where the applicant resides, in response to the respondent's request about the applicant and her employment as a teacher's aide at the school; (3)A risk assessment report dated 19 November 2013, by Jenny Howell, forensic psychologist in regard to the applicant; and (4)A bundle of documents relating to the applicant's criminal record, her sentencing for the disqualifying offence together with a number of psychological, psychiatric and probation and parole service pre-release reports. 32Ms Howell, also gave sworn oral evidence, by telephone, during the course of the hearing and was questioned by counsel for the respondent and cross-examined by the solicitor for the applicant. 33I have dealt with the evidence below, to the extent relevant to the factors set out in subs 30(1) of the Act. Consideration 34As indicated in the objects of the Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. The Tribunal's review jurisdiction, under s 27, is similarly protective in nature. 35In this application, the issue for determination is whether, having regard to the matters in subs 30(1) of the Act and the relevant facts, the applicant has established (i.e. proven on the balance of probabilities) that she does not pose a risk to children. 36As I have noted, subs 28(7) of the Act presumes that the applicant does pose a risk to children. 37The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of subs 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], His Honour said: '42 ...[what] one is looking for is whether, in all 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 a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...' 38These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in subs 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60]. 39In my view, the remarks of His Honour equally apply to the meaning of 'risk' as it appears in s 28 of the Act. However, in light of subs 28(8) of the Act, which provides that an enabling order cannot be made subject to conditions, the qualifying remarks of His Honour, in V, at [43] and [44], are no longer applicable. 40The evidence and my findings in regard to the subs 30(1) factors are set out in the following paragraphs. 41Seriousness of the disqualifying offence -the offence, of which the applicant was convicted, was in the following terms: 'between 27 January 2000 and 10 February 2000 at [name of place where offence occurred] and elsewhere in the state of New South Wales she [the applicant] feloniously did slay her daughter, ...'. The trial Judge noted that the offence carried a maximum penalty of 25 years imprisonment. 42The applicant was convicted, in the NSW District Court, and sentenced to five years imprisonment, with a non-parole period of two years. The applicant appealed her conviction and sentence to the NSW Court of Criminal Appeal. Her appeal was dismissed in May 2003. 43In his remarks on sentence, at pp 1 to 5, the trial Judge described the circumstances surrounding the death of the applicant's daughter as follows: '... [The] deceased [name of child], as she was generally referred to throughout the trial, was born on 10 December 1998. She died close to midnight on 8 February 2000. She was just 14 months of age at the time of her death. [The child] was the daughter of the prisoner and [the applicant's partner at the time and co-accused] who is to stand trial on the same charge later this year. The deceased and her two elder sisters, who are both fit and well, were born at home without conventional medical assistance. Before [the child's] death she was taken to see a doctor on three occasions. The first was shortly after her birth for the purpose of registering her birth. The second was in February 1999 when the prisoner took her daughter to see the doctor for advice about a swelling on the child's upper lip. The swelling was harmless. The third time was shortly before the child's death. She was taken there at the direction of the Department of Community Services. [The child] became ill in about August 1999, about five or six months before her death. She developed a condition; she had weight loss; she was observed to be very still and quite green in colour in her skin; her skin was very saggy. That was in December 1999 when [the applicant's then partner] daughter from another relationship, Ms B told the prisoner that the child looked ill and needed to see a doctor. The prisoner responded "Don't you think I know she looks ill". And the prisoner conceded that she, in fact, knew since September 1999 that her daughter was quite unwell. On 28 January 2000 a Department of Community Services Officer, Mr C, went to the prisoner's premises. He had a discussion with [the applicant's then partner] and demanded to see the child. As a result, the police were called. There had been a notification to the department that the child was unwell. Eventually, and this has nothing to do with the prisoner I hasten to add, he was allowed to see the child. He then directed that [the child] be taken to a doctor. An appointment was made to see Dr D, a general practitioner, the next day. The prisoner attended upon Dr D the next day. She was accompanied by her elder daughter. Her husband waited down the road. Dr D made it clear to the prisoner that [the child] was extremely ill and needed to be hospitalised for investigation and treatment. He said that while he did not carry out a full examination, the child was very thin. Her bones were visible. The child's body weight was very low for her age. She had jaundice in the skin. He said she was severely malnourished. She was making relatively little movement of her own accord, which was quite unusual for a child of her age. The doctor said he had never seen a child in this state before. The prisoner told the doctor that she wanted to take her daughter to a naturopath in Queensland. The doctor told her he could not support that approach. He made it quite clear that the child had to immediately be taken to the hospital, and went as far as to arrange the hospital to look after the child. .... After leaving the doctor's surgery the prisoner joined her husband. She, her husband, and the family left [the name of the town] without going to the hospital or seeking any further treatment. They travelled in a van to Queensland that afternoon. When they got to Queensland they went to see Ms E, that is, on Sunday 30 January 2000. She had qualifications in neuropathy, but was not registered to practice in Australia. This, of course is no fault of the prisoners. She observed that the baby was yellow, depleted and having difficulty with breathing. The prisoner told her they were on the run because a doctor wanted them to go to the hospital. The prisoner said in evidence, as I recall, that she said that because her husband had told her to. She arranged for the prisoner and her family to go to the property of Ms F. When the prisoner spoke to Ms F, Ms F said, "Is it an option to go to the hospital?" and the prisoner said, "Not now. Not at the moment." She said that at that point she was not ready to go. At a time close to [the child's] death Ms F again asked if she wanted to take [the child] to hospital, but the prisoner replied, "No, I want to stay here." The nearest hospital was 35 to 40 minutes away. There was some improvement in that child's condition. However, that improvement ceased and her condition deteriorated and she died towards midnight on 8 February 2000. She was severely malnourished. The prisoner was aware of her daughter's condition. A forensic pathologist, Dr G, said that the cause of death was malnutrition. ...The doctor said the child's condition was treatable. After the death of [the child] she was wrapped in a blanket in the back of the van and the family drove towards [the name of the town where their home was located]. The police had been searching for the van for some time. They stopped the van in the [name of town] area and found the child's body. ... The prisoner and her husband were arrested and they were interviewed. When first interviewed, and I take this straight from the Crown's submissions and I understand it is not in dispute, the prisoner said, in effect, that she did not think there was any need for the child to seek medical attention. She told police that the deceased child was not as robust a child as others were, but she nonetheless grew at the same rate as other children until she turned six months. She said at that time she slowed up, but that she was catching up. She claimed that as a member of the Sikh religion it was her belief that her children should not be infused with fluids or have artificial substances ingested into their bodies. Blood tests were things that could not be done. It was sacrilegious. ....' 44The trial Judge went on to set out some of the responses the applicant gave to police during the course of her first interview. His Honour noted that, during her trial, the applicant conceded that what she had told police originally was untrue. At p 7, the trial Judge described the applicant's responses in her second interview with police, which occurred after she had left her former husband (partner, as they were not in fact married) and after she had been charged with manslaughter, as follows: '... [she] said the fear of her husband governed most of her actions and speech. She said there was extreme physical violence at times and there was severe psychological and emotional abuse and restrictions of personal liberties and freedoms. She was isolated from her friends and family. It was fear of reprisal that prevented her from bringing this to the attention of the authorities. She said that when speaking to her husband after seeing Dr D he said to her, "You're not taking her to hospital. I'll tell you that right now." The prisoner maintained that stance at her trial. She also said at her trial that the version she gave to police in the first interview was put by her, either as a result of her belief that that was what she thought her husband would want her to say, or because it was what he told her to say. It was further conceded at the trial that, in fact, there was no such requirements of Sikhs to act in this way. That version I have just set forth, as I understand it, is not in dispute. The prisoner said, and had said at all times up until today, that she held her husband responsible for [her daughter's] death. ....' 45The trial Judge noted that the applicant had defended the charges on the basis that she was under duress. His Honour noted that duress was not a defence. However, it was a matter, which the prosecutor had to eliminate as a reasonable possibility. His Honour noted that the jury's finding of guilt of the offence charged indicated that the jury had accepted that the Crown had removed, as a reasonable possibility, the applicant had acted under duress. That is, the jury were satisfied that the Crown had proved, beyond reasonable doubt, each and every element of the offence charged, including the applicant having acted deliberately in breach of her duty of care to her daughter (see at p 8 of the remarks on sentence). 46In his remarks on sentence, the trial Judge accepted the applicant's evidence that she was subject to physical assaults and to mental pressure over a period of years. However, he noted that there was no evidence before the Court that the applicant was subject to any physical assault after the day on which she saw Dr D until the death of her child. However, he accepted there was evidence of ongoing mental assaults during this time. His Honour also accepted the expert opinion of a psychiatrist that the applicant's situation fitted into the 'Battered Woman Syndrome', which was a state where a woman, subject to physical abuse, forms a kind of helplessness and inability to initiate action to leave the situation. Taking all these matters into account, His Honour made the following findings at pp 11 to 14: '... [The] prisoner knew her child was ill, very ill, five or six months before [the child's] death. That condition varied from when she first became aware of it, becoming much worse, perhaps becoming a little better and then deteriorating to the time of her death. Secondly, she was advised to take [the child] to hospital by Dr D. She could have asked for the doctor's assistance. She knew her child was very ill and needed medical treatment. She knew she needed hospital treatment. She did not act on that advice. She had the opportunity to do so. Thirdly, she assisted her husband in leaving the State and the jurisdiction of DOCS by agreeing to take [the child] to see Ms E against the advice of Dr D. Fourthly, when she was in Queensland she had the opportunity to seek assistance from Ms E and Mr and Mrs F in relation to treatment for [the child]. I have quoted earlier the evidence of Ms F, which was not contradicted, when the prisoner said, "Not now. Not at the moment." She knew her daughter was very ill and needed hospital treatment. Fifthly, the prisoner also had the opportunity to get medical treatment even before 26 January 2000. In particular, her family had gone to the extent of making an appointment for her to see a doctor. I accept the prisoner did not want [the child] to die, nor to suffer harm. The prisoner had the care of her daughter who was unable to fend for herself, and she owed that child a duty to care for her and to protect her. ... The prisoner had a duty to look after her daughter, to protect her. She had a duty to ensure when she was ill that she got proper medical treatment. She had a duty to ensure that her daughter's life was protected. She had a duty to maintain a degree of fortitude of mind and will. She had a duty to do everything she could to ensure that her daughter received proper medical treatment. She did not take that opportunity. She did not take it. I accept that she was scared of [name of husband]. I accept that there was some mental domination. But, she did not take that opportunity she had to get her daughter treatment. I said earlier, and when I was originally considering this sentence, the prisoner has not as yet accepted responsibility for the part she played in the death of her daughter. But today she tells me she has and that, in fact, some months ago, she has come to accept that she could have and should have done more. I accept that this is now her position. And as I have said before, and I will make it quite clear in sentencing her, I take into account that she was subject to a condition of Battered Women's Syndrome, the fear of her husband and to a degree, a mental domination. I also note and take into account that she separated from her husband at the end of March 2000, about two months after her daughter's death. She gave reasons why she took that step, but I still have to ask: if she could take that step then why she could not, at some stage after seeing Dr D or at the time of seeing Dr D, up until the baby's death, had taken that baby for treatment? I have also learnt today that she did, in fact, disagree with her husband on one occasion, and I have difficulty in understanding why [the child] did not get the treatment to which she was entitled. ...' 47In sentencing the applicant, the trial Judge gave a reduction of close to 30% (two years imprisonment) for the assistance she had agreed to give police in the trial of her former partner. His Honour also said that the applicant was otherwise a person of previous good character, a good mother and 'unlikely' to offend in the same manner again. 48In her appeal, the applicant primarily argued that the trial Judge had misdirected the jury on the issue of duress, and the Battered Wife Syndrome. The Court of Appeal did not accept the applicant's contentions nor did it accept the applicant's arguments in regard to the severity of the sentence that had been imposed on her. 49There is no doubt that the offence of which the applicant was convicted was of a very serious kind. The applicant acknowledged this to be the case during the hearing. In her oral evidence, the applicant said that discussing the death of her daughter was still very painful. She said she accepted some responsibility for her daughter's death and acknowledged her inability to act at the relevant time. She said she now feels guilty for what occurred. However, she reiterated her feeling of helplessness at the time and her feeling of not having any choice. In cross-examination, the applicant readily agreed that her child paid a dreadful price for her failures and that of her former partner. She also said that her older children similarly paid a debt, or price for this offending conduct. 50Period of time since the offence was committed and the conduct of the applicant since that time - It is 14 years since the disqualifying offence occurred. Prior to her conviction, the applicant was on bail and during this time she resided with her mother and her older two children. The applicant was jailed on the day she was sentenced and was released on parole in April 2004. During the two years she was in prison, the applicant's mother looked after her two older children. On the material before the Tribunal it appears that the applicant had considerable support from her mother and family while she was in jail. When she was released from prison, the applicant resumed the care of her two children and she has continued to receive ongoing support from her mother. While in prison, from November 2003 to April 2004, the applicant was employed as a sweeper at a nursing home, through the Works Release Program at the Correctional Centre where she was placed. From June 2004 to July 2008, the applicant worked as a receptionist at a natural health practice. The applicant's current husband was the principal of that practice. 51From July 2008 to October 2008, the applicant held a short-term position as a medical receptionist at a medical centre. From November 2008 to January 2010, the applicant was employed through a 'temp' agency in a clerical role with a construction company. She moved from there, in February 2010 to January 2011, to the position of receptionist at a diagnostic imaging service. She then did some further 'temp' work at another business. In November 2011, the applicant was employed as the front desk manager and practice assistant to her husband, who moved his practice to the town where the applicant lives. I understand they married some time after the applicant filed this application. Between November 2011 and February 2013, the applicant was employed, on a casual basis, as a teacher's assistant, at a local church high school. In April 2011, the applicant received a letter from the Catholic Education Office stating that a Working with Children Background Check had been made and the applicant was eligible for employment with the schools in the local Diocese. 52In her statement, the applicant mentioned that prior to her imprisonment, from 2000 to 2002, she had been involved in classroom assistance, on a volunteer basis, at the school where her oldest daughter attended. She also explained that during this time she gave scripture lessons, once a week, at another local primary school. She said that from the time of her release from prison, in 2004 to 2007, she was also involved, in a voluntary capacity, in providing assistance at the school attended by her younger daughter. She said that this assistance included listening and helping children to read in the remedial reading room. She explained that this assistance was all unsupervised. 53There is no evidence of any complaints having been made about the applicant's work at these schools. At the same time, the evidence suggests that the applicant did not spend any extended period of time working in these roles. 54The evidence is that the applicant has at all times retained a strong connection with her local church and its broader community. She is now in a stable and very supportive marriage and continues to have ongoing family support. However, there does appear to be some difficulty in her relationship with her eldest daughter, who is now an adult and is living in supported accommodation in the city. 55The age of the person at the time the disqualifying offence occurred - the applicant was 32 years of age at the time of the disqualifying offence. Her then partner was 20 years older than her (i.e. 52 years of age). At the hearing, the applicant explained that she had been in a relationship with her former partner since she was 19 years of age. 56The age of the victim at the time of the disqualifying offence and matters relating to the vulnerability of the victim - as I have already explained, at the time the victim, the applicant's daughter, was 14 months of age. As pointed out by the trial Judge, the applicant's child was most vulnerable at that particular time. It is interesting to note that in her affidavit, filed in support of this application, the applicant did not at any stage make any reference to the vulnerability of her daughter. Yet it is a factor that the Tribunal is expressly required to take into consideration. 57The difference in age between the victim and the applicant and the relationship, (if any) between them - as I have already indicated there was 31 years age difference between the applicant and her child and the relationship was that of mother and daughter. 58Whether the applicant knew, or could reasonably have known, that the victim was a child - there can be no question that the applicant knew the age of her daughter. 59The applicant's present age - the applicant is presently 45 years of age. 60The seriousness of the applicant's total criminal record - the applicant has not been convicted of any other offences, either before or subsequent to her 2002 conviction. In this regard, the applicant contends that her conduct has been 'exemplary' for the last 13 years. The respondent however, expressed some concern about a report of an alleged assault, by the applicant, in April 2009, involving her eldest daughter. The report was contained in a document, produced by the Department of Family and Community Services, in response to a summons issued by the Tribunal at the respondent's request. At the hearing, the applicant explained that she and her daughter had argued on this particular day, but no assault had in fact occurred. 61The likelihood of any repetition by the applicant of the disqualifying offence - as I have mentioned, the trial Judge found that there was little likelihood of any repetition by the applicant of an offence of which she had been convicted. All the material before the Tribunal would indicate that this remains the case, particularly if she remains in a stable and supportive relationship. 62In her affidavit the applicant said that there was no likelihood of recurrence of the situation that resulted in the death of her daughter. She said that the situation was one of 'uniquely horrific circumstances'. 63Any information given by the Applicant - it was the evidence of the applicant that she had undergone substantial psychological treatment for her 'Battered Wife Syndrome' and also in respect of the sexual abuse, she suffered as a child from her step father. The applicant said she was now much more self-confident and would speak up if she felt that someone was trying to dominate her. She said that she had learnt the skills to recognise when this might occur and also the skills of avoiding situations of this kind. 64Included in the material filed by the respondent was a copy of the applicant's 2004 Pre-Release Report, which had attached to it a number of psychological reports. At page 5 of the Pre-Release Report, it is noted: '...[The applicant] has also completed extensive work during her bail period addressing her psychological issues particularly those relating to dissociation disorder. The diagnosis of disassociation disorder is particularly relevant to [the applicant], as questions have been asked to the degree of remorse that she displayed. This question was also raised with the Berrima psychologist who stated that she believed the offender had made satisfactory progress in this area ... ... The offender was also questioned by the undersigned over the detachment displayed in her initial interviews for the preparation of this report. [The applicant] explained this by agreeing that she [is] still reluctant in some situations to be emotional. Certainly in latter interviews the offender did display controlled emotion as she recounted the events leading up to her daughter's death. ... 65In her affidavit the applicant explained that after her release from prison she continued to undergo psychological treatment. She concluded by saying: 'I am no longer nor will I be again a victim of an abusive, anti-social person. I am a responsible and active member of society and involved in my community.' 66In her oral evidence, the applicant reiterated that she had undergone psychological treatment after she was released from prison. She said she believes she is now much more self confident and assertive and now aware of situations that might make her vulnerable to being dominated. 67In her affidavit, Ms N said she had known the applicant since 2000. Ms N said that she had 35 years of experience in working with children and families from all walks of life. She said the applicant is a much loved member of their local church. Ms N said that in the 'past year' she had asked the applicant to assist her, in a variety of ways, during their monthly Sunday afternoon worship gatherings. She said she has observed the applicant relate well to parents and children (of all ages) at these gatherings. She described the applicant as being 'creative and encouraging and helps children to engage in activities at their level. She is patient, polite and non-judgmental and enables people to see things from another perspective.' 68Ms N said that she believed the applicant would make an excellent group leader at their worship gatherings and on this basis, had asked the applicant 'if she would be willing to go through the process of obtaining a working with children check clearance.' 69Other matters - at the request of the respondent, the applicant willingly agreed to be assessed by Jenny Howell. In her report, Ms Howell explained the applicant had participated in a structured clinical interview. In preparation for the interview, Ms Howell was provided with a copy of the documents relied on by the respondent for the purposes of this application, the affidavit of the applicant and the three references provided by the applicant. In her report, Ms Howell said that the applicant presented as a quietly spoken, polite and articulate woman. She said that the applicant impressed as having above average intelligence, with good communication and social skills. She said the applicant was co-operative with the assessment process and able to provide a detailed history. In regard to the issue of risk, Ms Howell said: '[AYU's] situation is uncommon in the research literature around risk. While there are a range of factors associated with risk of violence the most salient are major mental illness, substance abuse and psychopathy. The association between substance abuse, violence, and crime is well documented and there has been considerable research conducted in Australia. The Historical Clinical Risk Factor (HCR-20) assessment instrument measures 10 historical, 5 clinical and 5 risk factors which include both static and dynamic variables. There is accumulating empirical evidence that the HCR-20 is a valid measure. Although most of the work on the HCR-20 has been with men, there are now published studies that support the use of the instrument with women offenders and psychiatric patients. The research has shown that high scores on the HCR-20 relate to a higher incidence and frequency of violence. Consideration of the factors suggest [AYU] represents a low risk for future violence. Assessment with the psychopathy checklist screening version found [AYU] has few personality characteristics associated with psychopathy.' 70Ms Howell went on to identify a number of issues, which were protective against the applicant's risk of harm to children. These were: * She did not present as inherently anti-social, either by way of attitude or lifestyle. * She has not come to the attention of any authority for aggressive, violent or sexual offences other than in relation to her conviction. * She does not present with a significant history of substance abuse both as an adolescent and adult. * She has no significant history of mental health concerns. * Her lifestyle is stable. She has recently married, is employed and has positive ties to the community through participation with her church. * She does not endorse attitudes and values supportive of physical and sexual abuse and the neglect of children. 71In regard to the specific questions asked of her, Ms Howell concluded that on the basis of her structured clinical assessment, in conjunction with the HCR-20 test, the applicant was a low risk for future violence. She also expressed the opinion that the applicant's risk to the safety of children was low. 72In her oral evidence, Ms Howell agreed that the circumstances giving rise to the applicant's disqualifying offence was uncommon and there was little, if any, research literature in regard to future risk of harm arising from such circumstances. She explained that this was due to the fact that the applicant was a woman and the fact that the offending conduct did not involve acts of violence. It was an offence of negligence to act. In response to questions asked of her, Ms Howell agreed the instruments she had used to assess risk were fairly novel and she had used these as there were no suitable instruments available for measuring risk of conduct of the kind the applicant was convicted. 73Ms Howell also agreed with the May 2000 assessments, by Dr Olav Neilson, forensic psychiatrist, had made of the applicant. That is, she agreed that the applicant had history of passive acceptance. The consequence being that she had been a submissive partner to her abusive former partner. 74In cross-examination, Ms Howell reiterated that in her opinion, the applicant had demonstrated, during her assessment, an acknowledgement of her role in the death of her daughter. She said the applicant showed insight and empathy when she talked about her children. Conclusions 75As I have mentioned above, this is a protective jurisdiction in which the applicant bears the onus, on the balance of probabilities, to rebut the statutory presumption that she poses a risk of harm to children. 76In my view, the applicant's offending conduct, which brings her within Schedule 2 of the Act, falls at the very serious end of the scale of seriousness. Her baby daughter was most vulnerable and the applicant was found to have acted deliberately in breach of her duty of care towards her. 77In these proceedings, the applicant acknowledged that she had a role to play in the death of her daughter. However, the applicant has continued to say, at the time, she felt helpless, with no alternative but to adhere to what her former partner demanded of her. That is, she was fearful of what he would do to her and her children. I accept the evidence is that the applicant's former partner was controlling and abusive, but it is difficult to accept that she had no choice, or even thought she had no choice, when it came to ensuring her baby daughter was protected from harm. As noted above, the applicant's asserted lack of choice was not accepted by the trial Judge. 78In her oral evidence, the applicant explained that in the years immediately prior to the birth of her baby daughter, she had attended the local campus of the University and obtained her Arts degree. She said her former partner would drive her to the campus to attend lectures and would pick her up again. She explained that they lived some distance from the town, and as she did not have a driving license, he had to drive her to lectures. This, she said was indicative of the control her former partner had over her. I have some difficulty in accepting this evidence, as her former partner presumably agreed to her attending lectures and he did so for three years. 79It is now 14 years since the applicant's conviction and I accept that her life has changed since then and she is unlikely to reoffend in the same manner. The relationship of the applicant with her former partner ended not long after being charged and she has re-established a strong relationship with her family and is now married to a supportive partner. She is also more self-confident and has no further record of a criminal offence. She is also an active member of her local church and wider community and well thought of within this community. 80Notwithstanding these factors in favour of the applicant, I am not persuaded that the applicant has discharged her onus, under subs 28(7) of the Act. 81As I have mentioned, the disqualifying offence is of a very serious nature. The applicant's baby daughter had been sick for a long period of time - she was most vulnerable and her death was avoidable, even up until the week before she died. Even though the applicant's life has changed since these events, in my view, she has failed to establish that that she has fully addressed her long history of passive acceptance. The fact that her life has changed, does not, of itself, establish this. 82The applicant, as I have indicated, gave evidence of having continued psychological treatment, after having served her sentence, in regard to the sexual abuse she suffered as a child and her abusive relationship. However, no reports were provided in regard to the nature of that treatment and how the applicant responded to it. The only material before the Tribunal, were the reports that were prepared for her criminal proceedings and her release on parole. These reports are now more than 10 years old and were prepared for a different purpose to that required under this Act. 83In light of this, together with Ms Howell acknowledgement that the instruments she used, to assess risk of harm, were novel, I am unable to find that the applicant has discharged her onus. 84Accordingly, on the basis of my findings, the appropriate order is to dismiss the applicant's application for a disabling order. ********** 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: 23 May 2014