Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BLG v Children's Guardian [2015] NSWCATAD 98 Hearing dates: 9 March 2015 Decision date: 13 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: R Booby, Senior Member Decision: The decision of the Children's Guardian dated 22 July 2014 to refuse to grant the applicant a Working with Children Check Clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance. Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- whether applicant poses threat to safety of children Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 Category: Principal judgment Parties: BLG (Applicant) Children's Guardian (Respondent) Representation: Solicitors: Lee Dalton and Associates (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1410445 Publication restriction: 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Judgment 1. On 13 August 2013 the applicant, who is referred to in this decision as BLG, applied for a Working with Children Check Clearance from the respondent, the Children's Guardian. 2. Sections 14 and 15 of the Child Protection (Working with Children Act) 2012 NSW and clause 1(4) of Schedule 1 of that Act have the effect that where a person has been convicted of an offence under s61 of the Crimes Act 1900 NSW committed against a child, the Children's Guardian must conduct an assessment of the applicant. 3. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 4. On 10 October 2013 the applicant was convicted of common assault against her son, aged 14 years, contrary to section 61 of the Crimes Act 1900 NSW (the trigger offence). This conviction resulted in the requirement for the Children's Guardian to conduct a risk assessment in respect of BLG's application. 5. The Children's Guardian determined that BLG is a risk to the safety of children and refused to issue a working with children clearance. The Children's Guardian notified BLG of this decision on 22 July 2014. 6. In an application filed on 18 August 2014 pursuant to s.27(1) of the Child Protection (Working with Children) Act, BLG seeks a review of the decision of the Children's Guardian to refuse her a Working with Children Check Clearance. 7. There is no dispute that the Tribunal has jurisdiction to hear and determine the application. 8. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]). 9. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. 10. BLG has limited command of the English language and during the hearing and without objection she was assisted by a friend/interpreter Mr Alfred Ngong. With the agreement of the parties, Mr Ngong was not administered the oath, but was advised by the Tribunal of his duty to interpret faithfully and not to add his views to the words spoken. Child Protection (Working with Children Act) 2012 1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance. 2. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. 3. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children. 4. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration. 5. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." 1. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence" 1. These provisions support a view that the concept of 'child abuse' includes actions which are likely to cause psychological harm. 2. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: "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." 1. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (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]). 2. Taking into account all of these matters, it is my view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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. 3. Part 3 of the Act provides for the determination of applications by the Children's Guardian. 4. Subsection 15(4) sets out the factors that the Children's Guardian may consider when making the assessment. These are: 1. the seriousness of any matters that caused the assessment in relation to the person, 2. the period of time since those matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 9. 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, 10. any information given in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary. 1. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 1. 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 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary. 1. Subsection 28(5) of the Child Protection (Working with Children Act) 2012 requires that an applicant must fully disclose to the Tribunal any matters relevant to the application. 2. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children. 3. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if she were a disqualified person. 4. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 1. the nature of the cause of action or defence, and 2. the nature of the subject-matter of the proceeding, and 3. the gravity of the matters alleged. 1. Although the applicant does not have a legal onus of proof, she does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 at para. 39 – 49). In his concurring, but separate judgement in the QAAH matter (supra) His Honour Mr Justice Kirby described that onus thus: "In an inquisitorial tribunal, the legal burden of proof typical of an adversarial trial may be missing. However, the forensic context still reflects the reality of a decision-making process. If a party that could be expected to present material in support of its case fails to do so, that party cannot then complain if the decision-maker decides that a basis for the relief claimed has not been established" (at paragraph 136). 1. Taking these matters into consideration I am satisfied that the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act to decide whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children. The Evidence 1. The applicant gave sworn oral evidence and in addition tendered into evidence without objection a Statement sworn by her on 6 March 2015 with attachments being: 1. Letter dated 2 July 2014 from Ms Lee Dalton, solicitor, to the Office of the Children's Guardian. 2. Letter dated 15 August 2013 from Ms Lee Dalton, solicitor, to The Police Prosecutor, Conobolas Command, Orange Police Station, 3. Documents in the form of a Statutory Declaration dated 25 June 2014 made by the son of BLG and witnessed by the daughter of BLG. 4. Letter dated 13 May 2014 from Family and Community Services to BLG. 5. Character reference dated 24 June 2014 from Helen Hughes 6. Character reference dated 27 June 2014 from James Milson 7. Letter addressed "to whom it may concern" from Yin Hourigan, Psychologist, of Caro Consultancy and Capable Kids. 8. Letter dated 4 March 2015 from Nicole Caro of Caro Consultancy and Capable Kids to Ms Lee Dalton. 9. Letter dated 2 March 2015 from Achol Maror, Director, Advance Family Day Care. 10. Letter dated 29 August 2014 addressed "To Whom it May Concern" from Father Paul Devitt of the Parish of St Mary and St Joseph, Orange. 11. Letter dated 9 September 2014 to the Registrar, Administrative and Equal Opportunity Division from Maureen Horth, Community Service Manager, Orange City Council. 1. The respondent tendered without objection: 1. A bundle of documents numbered page 1 through to page 160 comprising: 1. Risk Assessment Report with attachments A-H 2. Reasons for issue of s.20 bar 3. Correspondence with the Applicant 1. A bundle of additional documents numbered page 1 through to page 66 and comprising: 1. Additional information provided by Family and Community Services in response to a s. 31 enquiry 2. Material produced in summons by Orange Health Service. Consideration Matters taken into account by the Children's Guardian 1. In a letter dated 22 July 2014 to BLG, the Children's Guardian advises that it has decided to refuse to grant a working with children check clearance by reference to the matters set out in subsection 15(4) of the Child Protection (Working with Children) Act and in particular: 1. The seriousness of matters considered; 2. The period of time since the matters is insufficient to satisfy the children's guardian that BLG does not pose a risk to children; 3. BLG's conduct does not demonstrate that she has mitigated the risk; 4. The difference in age between BLG and the victim of her offence; 5. The vulnerability of the victim; 6. BLG knew that the victim was a child. Matters referred to in the Family and Community Services file 1. The Risk Assessment Report of the Children's Guardian indicates that a number of matters raised in the Family and Community Services file were considered by that office. These include the following: 1. 1 April 2000: Child protection concerns began with reports including concerns about the children of BLG being exposed to violence, and had inadequate shelter. 2. 14 June 2007 – 2012 reports of domestic violence incidents including one resulting in the arrest of the BLG's husband and the issuing of an apprehended violence order against him. 3. March 2011: Concerns were expressed that BLG's son, ("A"), told his headmaster that his father hit him across the face with a belt. A welfare check was carried out and the child was found to be well. The case was closed in the Family and Community files. 4. 3 July 2012: A caller advised that the BLG and her daughter ("B") were at the police station and BLG said that she was no longer willing to care for B. The caller also said that B was required to do the cooking and cleaning at home and care for her siblings and that if she did not do so to the satisfaction of her mother she is beaten by her mother. The caller said that B does not feel safe to return to the family home and described BLG as highly aggressive. The case was closed without a risk assessment on 14 December 2012. 5. 12 December 2012: B telephoned to say that she was not allowed out and that her parents called her a "dog" and a "slut". She had sneaked out and when she arrived home she was told to pack her belongings. Her father contacted the police and told them to have Family and Community Services take the daughter. 6. 7 January 2013: B was missing from 7 January 2013 until 9 March 2013 and was apparently staying with an aunt because she was not permitted to be in the family home. 7. 31 March 2013: A and other children were found on the street at 3:00am with no supervision. 8. 12 September 2013: B reported that she feared she was being taken to the Sudan for an arranged marriage. 1. During the hearing BLG was questioned about some of these matters. 1. In relation to the claims that BLG's son, A, had been hit by his father using a belt, BLG said that had happened when she was away. She said that he had only done this on one or two occasions and she does not think he was a danger to the children. 2. In relation to the matters regarding her daughter, B, BLG: 1. Denied that she beat B and that she called her a "dog" and a "slut" and that she told her that she was not her daughter. 2. Agreed that she took B to the police station and said that was because B had been sneaking out at night and she wanted the police to speak to her about that. 3. Denied that it was planned to take B to the Sudan for an arranged marriage. She said that her husband had offered to take B to the Sudan when he went to visit relatives but that when she did not want to accompany him he made the trip without her. 1. Attached to the statement of BLG is a statement in the form of a Statutory Declaration made by A on 25 June 2014 which also includes a note by B to the effect that the matter regarding her fear of being taken to the Sudan for an arranged marriage resulted from a misunderstanding. Other matters taken into account by the Children's Guardian Incident on 6 March 2013 1. A Police Event record of an incident on 6 March 2013 contains allegations to the following effect 1. At approximately 8:45pm BLG was shouting and swearing at her children. She picked up two mugs and smashed them on the ground. She also picked up the leg of some furniture and started to smash cabinets and the television. 2. BLG ran at her husband with the piece of furniture and hit the wall next to him. She then hit her husband, causing cuts, bruising and bleeding. 3. Police attended and observed a large amount of broken glass on the floor of the lounge room which appeared to come from glass doors on a display case. There was also a large flat panel television on the floor leaning against a coffee table and the glass panel was smashed. 4. BLG appeared affected by intoxicating liquor. 5. The ambulance was called and after being spoken to by an ambulance officer, BLG ran towards the kitchen and grabbed a jar of Ammonium Bicarbonate which she tried to swallow. The contents of the jar had gone hard and did not come out. 6. Some of the children of the BLG ran out of the house screaming that she had just poisoned herself. 1. Under cross examination BLG said that she had not been drinking alcohol on this occasion, but that her husband had told the police that she had been doing so. She agreed that she hit the cupboard and the television but denied that she hit her husband. She agreed with the proposition put to her that she was angry and tried to hurt herself by swallowing the powder. 2. In cross examination the solicitor for the respondent noted that a report from Orange Hospital regarding BLG's admission after this incident records that she acknowledged that she had been drinking alcohol. In response BLG said words to the effect that even if she told the hospital that she had drunk alcohol on that day, in fact had not done so. 3. The Police event record in relation to this event also notes that when taken into custody BLG requested to use the toilet and commenced removing her underwear and then urinated on the floor. Under cross examination BLG agreed that this was the case but said that she had asked to use the toilet and had not been permitted to do so. She said that event was embarrassing to her. Incident on 8 June 2013 1. The Family and Community Services file notes refer to an incident on 8 June 2013 when police and ambulance attended the home of BLG after one of her children rang 000 because BLG had consumed all her medication and was unconscious. She is said to have told a witness that "today was her last day" before taking the medication. She was treated in hospital. Family and Community Services expressed concern for the physical and emotional well being of the children of BLG. 2. The documents tendered by the respondent include Mental Health Triage notes related to this incident which note, amongst other matters, information to the following effect: 1. BLG said that she had been drinking whisky on the night of the incident. 2. BLG said that she was feeling frustrated and sad because her husband was not assisting her with the family responsibilities. 1. Under cross examination BLG: 1. Agreed that she had taken the medication and that her daughter, B, had called the services. 2. Agreed that the incident had been upsetting for her children. 3. Said that when examined at the hospital she had said that she was not happy because her husband made her sad. 4. Denied that she had been drinking on the day that she took the overdose of the medication. She said that he might have said that she "sometimes" drank alcohol but that due to her difficulties with the English language she does not always understand matters put to her. Incident on 12 July 2013 1. The incident on 11/12 July 2013 resulted in BLG being charged with common assault, and is the matter that triggered the assessment requirement for the working with children check clearance. Police facts in relation to that matter include the following: 1. The victim of the assault was the 14 years old son of BLG (who in this matter is referred to as "A"). 2. On 11 July 2013 BLG was at home with her nephew with whom she consumed alcohol. 3. At approximately 2:00am A asked BLG to ask the nephew to leave the house. BLG then threw her mobile telephone at A, breaking the telephone. She then asked why her telephone was broken and became angry about the response of A. She went to his bedroom and picked up his toy guitar and smashed it. 4. BLG again threw her mobile telephone at A striking him on the left side of the head. She then attempted to grab a heater and A thought that she was intending to throw the heater. He stopped her from doing so and she again struck him on the head. A then punched BLG in the mouth. 5. Police attended the scene. They smelt intoxicating liquor on the breath of BLG who was unsteady on her feet and was slurring her words. 1. In her statement dated 6 March 2015 BLG makes statements to the following effect regarding this incident: 1. She called the police because a young man was making sexual advances to her. By the time the police arrived he had left and she was arrested by the police. 2. She failed to attend court because she was confused about the court date and a guilty finding was reached in her absence and without her having the opportunity to defend the charges and the police facts. She instructed her solicitor to make representations to the police prosecutor regarding the matters. 1. Attached to the statement of BLG is a copy of a letter dated 15 August 2013 from Ms Dalton, solicitor, to the Police Prosecutor, Conobolas Command which contains information to the following effect: 1. On 12 July 2013 young man came to the house of BLG. Whist BLG has referred to him as "nephew" he is not blood relation but belongs to the same tribe as BLG. 2. A, BLG's son, noted that the young man was intoxicated and was making inappropriate comments to BLG and he told his mother that she should take the young man home. BLG told the young man she wanted to take him to his home but he said he had no home. A bed was made up for him in A's room. However instead of going to that bed he went to BLG's room. BLG again asked the young man to leave but he became aggressive and wanted to fight A who had objected to him going into BLG's room. 3. BLG threatened the young man with the toy guitar and A intervened, taking the guitar from his mother and in the course of grappling a string on the guitar broke, and hit BLG on the forehead causing an injury, BLG was charged with malicious damage to that toy. 4. A confirms that BLG did throw her mobile telephone at him and it struck him on the left side of the head. He denies that she struck him in the head in any other way. 5. A asked BLG to call the police to have the young man evicted and she did so. 1. The respondent provided the Tribunal with a copy of letter dated (apparently in error) 2 February 2013, from A, which was written to the Children's Guardian in relation to BLG's application. In the letter A makes statements to the effect that that his mother had asked the male visitor to leave and he refused. As a result BLG contacted the police. Before the police arrived the young man left the house and when the police arrived, they were mistaken in their assessment of the situation. He describes the police report as "not only unsubstantiated, but baloney and bogus …". 2. Attached to the statement of BLG is a statement made by A on 25 June 2014 in the form of a Statutory Declaration. However the declaration is incorrectly witnessed by the sister of A. In his statement, A states that the police account of the event is a mistake and that BLG became upset as a result of the police questioning with the result that she told the police to take him (A) away. 3. Under cross-examination BLG gave an account of the events of 11-12 June which varied in some ways from the above accounts. She said that she had called the police to remove the young man from the house and said that he had been drinking alcohol. She denied that she had been drinking alcohol and that she broke the toy guitar. In relation to the guitar she said that it broke when both she and A were holding it. BLG agreed that she had thrown her mobile telephone and said that was because she had tried unsuccessfully to open it. She denied throwing it at A and also denied that the telephone hit A. BLG agreed that she said to the police that she did not want her son, A, in her house and that was because he had hit her with the guitar instead of helping her. 4. Under cross examination BLG was asked about the differences between her account of these events during the hearing compared with the account provided in the letter from Ms Dalton to the Police Prosecutor. BLG agreed that the letter had been written on her instructions and that according to the account of the event in that letter, it was confirmed by A that BLG had thrown the mobile telephone at him. Incident on 12 March 2014 1. A Family and Community Services Contact Record dated 12 March 2014 records that an officer of that service attended the home of BLG at 6:00pm on 12 March 2014 having been called by her husband who reported that BLG was drunk and had kicked him in the shins. An officer also attended again at 9:30pm in response to a call from BLG's son, A, who reported that BLG had taken the clothes of her husband and he feared that she intended placing them in a charity bin. BLG denied this latter claim and said she had taken the clothes to the house of a friend. The Contact record states that BLG was "moderately intoxicated" at 6:00pm and was more sober at 9:00pm. Under cross examination during the hearing BLG denied that she was intoxicated at the time of this incident and said that she did not drink alcohol at that time because she was pregnant. 2. The Family and Community Services report of the incident in March 2014 states that when the officer spoke to a 12 year old child of BLG the child said that BLG drinks "all the time". 3. The report of the incident in March 2014 notes that when the officer visited, BLG's children were clean and tidy and were playing happily in the yard, the house was tidy and there was adequate bedding and food in the house. 4. An Assessment Record compiled by Family and Community Services following the incident in March 2014 notes that on numerous unannounced visits officers have seen no evidence of alcohol abuse and that BLG has "always seemed pleasant, well dressed, well spoken and very attentive and loving towards her children". The record also notes that children of BLG who were interviewed expressed the view that the marital fights were "mostly their father's fault" and note that since BLG's husband left the home "the family has settled down with no issues reported as problems arise when the parents are together". 5. The Family and Community Services notes also state that BLG was to attend court on 20 May 2014 for breaching the conditions of an Apprehended Violence Order which required that she not drink alcohol at home. The result of that appearance was not advised to the Tribunal. Family and Community Assessments 1. The respondent tendered into evidence the results of assessments conducted by Family and Community Services regarding the children of BLF. 1. A Safety Assessment conducted on 26 March 2014 assessed the children to be safe. 2. A Risk Assessment conducted on 10 April 2014 assessed the children to be at a "moderate" level of neglect and a "high" level of risk of abuse. 1. Attached to BLG's statement of 6 March 2015 is a letter dated 13 May 2014 from a Family and Community Services Caseworker, counter signed by the Acting Manager Casework, to the effect that after conducting a risk assessment, Community Services would no longer be involved with the family of BLG. Consideration of the section 30(1) factors 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 1. The matter that triggered the assessment requirement was BLG's conviction for common assault of a child victim. However the Children's Guardian considered a number of other matters relating to BLG's family affairs. These include an incident where BLG damaged family property during an argument with her husband and another where she took an overdose of medication and her daughter was required to contact police and ambulance services. 2. I am satisfied that the Family and Community Services file notes provided by the respondent indicate concern for psychological and emotional effects of BLG's actions on her children. I am satisfied that the matters involving violence, including the trigger offence, and self harm attempts in the home are sufficiently serious to cause psychological harm to a child. The trigger event also caused a minor injury to the son of BLG. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The matters referred to in the preceding paragraph that involved physical aggression or self harm by BLG, or allegations in respect that behaviour, in the presence of some of her children, took place in 2013 and 2014. 2. In her statement dated 6 March 2015, BLG provides information to the following effect regarding her family circumstances: 1. She married her husband when she was 13 years old and living in the Sudan. She had her first child when she was 16 years old. She and her husband and four children came to Australia as refugees in May 2004 before which they had spend four years in a refugee camp in Egypt. There are nine surviving children of the marriage aged from 17 years to approximately nine months old. 2. Throughout her marriage she has been a victim of domestic violence. 3. In 2013/2014 the marriage began to fail and her husband disappeared for weeks at a time and she did not know where he was. They finally separated in April 2014 when her husband left the family home. 4. Often when they argued her husband would call the police and tell then that she had kicked him and that she was intoxicated. He would leave before the police arrived. Use of Alcohol 1. As noted above during the hearing BLG denied that she was intoxicated at the time of the incidents on 6 March 2013 and 12 July 2013 despite police statements to the contrary. She also denied that she had used alcohol on 8 June 2013 despite hospital records stating that she said she had drunk whisky on that occasion. She also denied that she had drunk alcohol on 12 March 2014 despite observations made by the family and Community Services officer that she was moderately affected by alcohol. 2. In her statement dated 6 March 2015 BLG states that since separating from her husband "I have stopped drinking any form of alcohol at all". She also states that her solicitor had attempted to locate a drug and alcohol course for her to attend but there was none available for her to access in the absence of a referral from the court or the Probation and Parole Service. 3. During the hearing when cross examined about her current alcohol intake BLG said: 1. When her husband was in the house she was drinking most days. She drank two "Passion Pops" per day and one day she had a small bottle of whisky. 2. As stated in her statement of 6 March 2015, she did stop drinking after her husband left the house, but now she does not have a job and sometimes nowadays, she thinks too much and she then drinks some alcohol. 3. She does not drink much now and buys a small bottle of "Passion Pop" which she drinks when the children are asleep on a Saturday. 4. She agrees that when her husband lived with her they fought more frequently when she had consumed alcohol, and she knows that alcohol is not good for her. 5. She has not been able to access assistance to help with her drinking but now she has no need to drink. 1. Attached to BLG's statement of 6 March 2015 is letter dated 26 November 2014, in which Yin Hourigan, a psychologist with Caro Consultancy states that during an assessment interview conducted on 12 November 2014, BLG advised her that she had ceased drinking alcohol in approximately August 2013. In an email dated 4 March 2015 addressed to Ms Dalton, Nicole Caro of Caro Consultancy states that her practice was unable to provide a further assessment of BLG. 2. In a letter dated 26 November 2013 addressed to the Office of the Children's Guardian, Mr Alfred Ngong, Chairperson of the South Sudanese Community Association Incorporated states that BLG does not drink alcohol. 3. In her oral submissions the solicitor for BLG submitted that whilst alcohol use might have been a problem for BLG at the time of the incidents outlined above, in more recent years she has managed her alcohol use and currently does not over indulge in alcohol. 4. The solicitor for the respondent submitted that BLG has developed a problem with alcohol. In his written submissions he also notes that she has not been successful in accessing professional assistance for her alcohol problem. 5. Despite BLG's denials that she had used alcohol at the time of the incidents reviewed above, I am satisfied that there is consistent evidence from police and Family and Community Services personnel to the effect that when they have visited her home in relation to the reports of the incidents she had been using alcohol. 6. The evidence of BLG in relation to her current use of alcohol is inconsistent in that she has said: 1. She stopped using alcohol in 2013 (the report of Yin Hourigan) 2. She stopped using alcohol when her husband left the marriage and now does not use alcohol in "any form" (her statement dated 6 March 2015). 3. She drinks alcohol now because she becomes sad about not having a job. 4. She drinks a small amount of alcohol on Saturday nights after the children are asleep. 1. BLG has provided a number of references attesting to her character and her ability to care for children: 1. In a letter dated 26 November 2013 addressed to the Office of the Children's Guardian, Mr Alfred Ngong, Chairperson of the South Sudanese Community Association Incorporated makes statements to the following effect: 1. BLG is compassionate and is a productive and contributing citizen. 2. A number of children of the South Sudanese community attend childcare conducted by BLG and they have never made a complaint or report of any violence by BLG. 1. In a letter dated 29 November 2013 addressed "To Whom it May Concern" and submitted to the Office of the Children's Guardian as part of the risk assessment process, Ms Jill Fisher states that she met BLG and her family though a Community Mentoring Program and have continued to support them since then. Ms Fisher makes statements to the following effect: 1. BLG is a "very caring, attentive and resilient mother". 2. It is the opinion of Ms Fisher that BLG would not intentionally harm her children and the incident involving assault of A must have been a misunderstanding. 3. Ms Fisher has "no hesitation" in supporting BLG in her childcare work. 1. In an undated letter addressed "To Whom it May Concern" and submitted to the Office of the Children's Guardian as part of the risk assessment process Mr Daniel Taouk states that he supervised BLG when she was working as a cleaner at the local hospital and that they have remained friends. He states that she was an "excellent employee" and a "kind hearted person". 2. In a letter dated 10 December 2013 addressed "To Whom it May Concern" and submitted to the Office of the Children's Guardian as part of the risk assessment process, Dr Tim Low states that BLG has been a patient of his practice since 2009, including during her pregnancy at the time of his letter, and "is doing an excellent job in raising her eight children" and has "coped very well with the adjustment" as a refugee. 3. In letter dated 24 June 2014 addressed "To Whom it May Concern" and attached to BLG's statement of 6 March 2015, Ms Helen Hughes states that she has known BLG for about five years and in that time has been impressed by BLG's "concern for her family". She states that BLG has been faced with many difficult situations but her overriding concern has been for her children. 4. In a letter dated 27 June 2014 and attached to BLG's statement of 6 March 2015, Mr James Milson states that he has know BLG for some five years and that her children had attended his youth club. He describes BLG as a "very responsible mother with a great work ethic". 5. In a letter dated 2 March 2015 and attached to BLG's statement of 6 March 2015, Achol Maror, Director, Advance Family Day Care states that BLG was employed by that company from August 2013 to July 2014. Her employment was terminated when she was refused the Working with Children Check Clearance. The letter states that while BLG was employed by that company there were not complaints or incidents of concern and BLG was an "active educator" and was considered to be an asset to the company. 6. In a letter dated 29 August 2014 and attached to BLG's statement of 6 March 2015, Father Paul Devitt of the Parish of St Mary and St Joseph makes statements to the following effect: 1. He has known BLG from some three and a half years since he arrived in the Parish and has visited them in their home. 2. He is aware of difficulties in the marital relationship but he has never been concerned that the children are in any danger. 3. BLG's children are well cared for and BLG is a "nurturing mother". 4. In his opinion, BLG's situation has been compounded because of her inability to read English. 5. He does not believe that BLG poses any threat to the safety of children. 1. In a letter dated 9 September 2014 addressed to the Divisional Registrar, Administrative and Equal Opportunity Division and attached to BLG's statement of 6 March 2015, Maureen Horth, a Community Service Manager with Orange Community Services states that the Migrant Support Service has known BLG since 2009 when she arrived in Orange and over the time the service has provided intermittent support to the family including attendance of the children at school holiday activities. She also makes statement to the following effect: 1. The service has made several home visits, sometimes without notice and the home has been clean and tidy with systems in place to maintain organisation. 2. BLG manages to assist her children to attend a number of after school activities including sport, homework help and violin lessons and the children also attend local parks to play. 3. BLG has managed the family with the assistance of her husband but he has not always been present. The age of the person at the time the offences or matters occurred, the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the person and the relationship (if any) between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child, the person's present age. 1. In relation to the trigger offence, BLF was 32 at that time and her son, A, was 14. She is now 34 years old. She was aware that he was a child. I am of the view that he was in a vulnerable position as he was her child and the assault took place in his home. 2. The other matters considered have not involved the children as direct victims. However, according to the Family and Community Services records BLG'S children have been exposed to emotional harm as a result of the actions of BLG including domestic violence and self-harm. I am satisfied that the children of BLG are in a vulnerable position as they are her children and the incidents have taken place in their home. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. BLG has other convictions arising from the incident on 6 March 2013. The Tribunal is also advised that she was charged in relation to breach of an apprehended violence order in relation to the incident on 11 March 2014. 2. BLG has been involved in a number of incidents resulting in the involvement of Family and Community Services as reviewed above. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. In her submissions the solicitor for BLG submitted that: 1. BLG is in her current situation because of her failure to fully understand English and her lack of understanding about our legal system. 2. The trigger offence resulted from a series of events that were beyond the control of BLG. She submitted that the police facts are not reliable because police did not conduct an interview with BLG about the assault allegations because they were of the view that she was intoxicated. They did not conduct any breath analysis or provide any other evidence of her intoxication. The police also did not obtain a statement from A, the victim of the assault, because he did not wish to make a statement. 3. BLG had intended to defend the charges but due to misunderstandings about the court date, and loss of contact with her solicitor, she lost that opportunity. 4. The trigger offence and other matters occurred in the context of marital discord including the practice of BLG's husband of telephoning police and claiming that BLG was intoxicated and the leaving the house before the police arrived. 5. A number of the incidents referred to involving BLG and her actions in front of her children were in the context of domestic violence where BLG was a victim. 6. BLG's references attest to her high standing in the local South Sudanese community as well as her child care ability. 7. There have been no recorded incidents since BLG's husband moved out of the marital home. 1. In his oral submissions, the solicitor for the respondent concedes that it is relevant that BLG was convicted of the trigger offence without the opportunity to defend the charges, and that she does have difficulties communicating in English. He also conceded that the differences in her accounts of the trigger offence could be because of her communication problems. However he submitted that on her own evidence, BLG described the trigger offence as involving a struggle with her son which resulted in him being injured. 2. In his oral and written submissions the solicitor for the respondent submits: 1. The incidents have occurred in the context of domestic violence in which it appears that BLG has developed a problem with alcohol and when intoxicated she has been violent. 2. The presence in the house of BLG's children has been insufficient to inhibit her use of alcohol. 3. Whilst BLG stopped drinking alcohol at one time she now admits to drinking. 4. BLG's past behaviour demonstrates a link between her use of alcohol and violent behaviour and she has not received professional assistance regarding her use of alcohol. 5. The failure of BLG to access professional help for her alcohol use suggests that there is a real likelihood that she will repeat the conduct described in the incidents considered. Any information given by the applicant in, or in relation to, the application and any other matters that the Children's Guardian considers necessary 1. Additional material submitted and tendered by the applicant and respondent has been considered in the context of the consideration of the s.30(1) factors above. Conclusions in respect of the matters listed in subsections 15(4) and 30(1) of the Child Protection (Working with Children) Act 1. As noted above, I consider that BLG's actions in relation to the trigger offence and other incidents considered by the Children's Guardian are serious and are such that they could cause physical and emotional or psychological harm to a child. 2. I am satisfied that the incidents reviewed above, alcohol was a contributing factor to BLG's behaviour. I am also satisfied that BLG has given inconsistent evidence regarding her current alcohol use. 3. Despite the involvement of alcohol use in BLG's actions and her inconsistent evidence there is no evidence that she has used large amounts of alcohol or that she has been unable to stop using alcohol. I have not been provided with any evidence that she is dependent on alcohol. I am therefore not satisfied that in the absence of professional assistance she is unable to control her alcohol intake. 4. I am satisfied that BLG understands the role played by alcohol in the incidents and wishes to avoid any recurrence of the incidents. 5. I am satisfied that the incidents of violence and self-harm reviewed above took place in the context of marital discord. I am satisfied that BLG and her husband have now separated though he sometimes spends nights at the home of BLG when he comes to visit the children. 6. The evidence indicates that in 2013/2014 during the period of marital discord when the events reviewed above occurred, BLG was working as a Family Day Care worker. I have not been provided with any evidence that children under her professional care were at risk. The references that she supplied regarding her work are to the effect that she was a valued employee and that the children under her care and their parents were satisfied with the care she provided. 7. I consider it significant that there are no reported incidents since April 2014 when, according to the statement of BLG, her husband left the matrimonial home. 8. Taking into account the particular context of the incidents which have been reviewed and in which the behaviour of BLG was such that could cause harm to a child, that is, the marital discord and BLG's use of alcohol in that context, I am satisfied that BLG's circumstances are now different from those that applied at those times. 9. I am also satisfied that whilst BLG may have used alcohol to assist her to deal with the effects of her marital discord, the references she has provided and her account of her life, indicate that she has been able to demonstrate an ability to deal appropriately with other significant lifestyle difficulties without resort to alcohol. 10. Taking all of these matters into account, I am not convinced that BLG's failure to access professional assistance regarding alcohol use suggests that there is a real likelihood that she will repeat the conduct 11. I have reviewed in detail the events that have involved violent or self-harming behaviour by BGL and my comments above, in paragraphs 79 to 88 apply to those incidents. I am satisfied that the other reports of interventions by Family and Community Services relate to the matters also involving the husband of BGL for which BGL should not be held solely responsible. 12. I am satisfied that the references provided by BLG support the view that she is a caring mother and a respected member of her community. 13. Taking all of these matters into account, I am not satisfied that the evidence of BLG's past behaviour or her current circumstances is such that, on balance, she represents a risk to the safety of children. Conclusion and orders 1. As outlined above, the issue for determination is whether on the material before the Tribunal I can be satisfied that BLG poses a risk to the safety of children. 2. For the purpose of these proceedings, my view on the material before me, is that the evidence does not establish that the BLG poses a risk to the safety of children that is greater than that of any adult. In my view the evidence does not establish that BLG poses a real and appreciable risk of harm to children. In my view the evidence indicates that the BLG should be granted a Working with Children check clearance. 3. It follows that the orders of the Tribunal are: 4. The decision of the Children's Guardian dated 22 July 2014 to refuse to grant the applicant a Working with Children Check Clearance is set aside and in substitution the respondent is to grant the applicant a Working With Children Check Clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2015