Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CEP v Children's Guardian [2016] NSWCATAD 148 Hearing dates: 23 March 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: L Organ, Senior Member S Davison, General Member Decision: (1) The decision of the Children's Guardian made 10 September 2015 to refuse the applicant's Working with Children Check clearance is set aside. (2) In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance Catchwords: Child Protection-working with children check clearance-application for administrative review-correct and preferable decision-whether Applicant poses a risk to the safety of children- Children's Guardian decision set aside-working with children check clearance granted. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012(NSW) Evidence Act 1995 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949 Commission for Children and Young People v FZ [2011] NSWCATAD 69 Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 Holbrook and Australian Postal Commission (1983) 5 ALN N46 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 M v M [1988] HCA 68 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CEP (Applicant) Children's Guardian (Respondent) Representation: Counsel: L Andelman (Applicant) A Douglas-Baker (Respondent) Solicitors: ShoalCoast Community Legal Centre (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510605 Publication restriction: Pursuant to s.64 (1) (a) of the Civil and Administrative Tribunal Act 2013, disclosure of the name of the Applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Reasons for decision Background 1. CEP (the Applicant), seeks review of the decision of the Respondent (the Children's Guardian), to refuse his application for a Working with Children Check (WWCC) clearance, under the Child Protection (Working with Children) Act 2012 ("the Act"). 2. The Applicant is a 44 year old Aboriginal man who lives in regional New South Wales. He has been in a de facto relationship with Ms A for approximately 29 years. Pursuant to a kinship foster care placement, the Applicant's sister's four children aged between seven and 17 years old live with the Applicant and Ms A. The Applicant and Ms A also have six other children aged between three and 27 years old. 3. The Applicant requires a WWCC clearance because his de facto partner is an authorised carer for the Applicant's sister's four children and the Applicant lives in the household. 4. On 24 September 2013, the Applicant applied to the Office of the Children's Guardian (the Respondent) for a WWCC clearance. 5. The Respondent conducted a risk assessment of the Applicant and, on 10 September 2015, determined to refuse the application. 6. On 30 September 2015, the Applicant lodged an application for review of the Respondent's decision. The Statutory Scheme The Child Protection (Working with Children) Act 1. The objects of the Act are 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. 1. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse." 2. The Act prohibits a person from engaging in "child-related work" unless (a) the person holds the relevant WWCC clearance, or (b) there is a current application, by the person, to the Respondent for the relevant WWCC clearance: s 8(1). Contravention of this prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 3. Section 18 sets out how the Respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or where that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the Respondent must refuse that person's application for a clearance. In this case, the Applicant is not a "disqualified person" and the subsection does not apply to him. 4. Subsections 18(2) and (3) apply to all other applications. These subsections provide: 18 Determination of applications for clearances (1) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. A person is subject to an "assessment requirement" if any of the matters specified in Schedule 1 of the Act apply. This includes circumstances where the person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children. 2. According to the Respondent's records, the matter which triggered a risk assessment of the Applicant was his conviction on 10 June 2005 for the offence under s.61 of the Crimes Act 1900 of "assault – victim 16 years" in respect of the Applicant's then 16 year old daughter (the trigger offence). 3. In making an assessment, the Respondent may consider the following factors set out in section 15(4) of the Act: 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. Role of the Tribunal 1. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a WWCC clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a Working with Children Check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. 1. Having jurisdiction to review the decision of the Respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Respondent: Administrative Decisions Review Act 1997, s 63. 2. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247, at [25]. 3. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; 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] 4. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: Civil and Administrative Tribunal Act 2013, s 36. 5. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s 38 and s 67. 6. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436. 7. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 set out at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so. 8. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven." Administrative Decisions Review Act 1997 1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the Respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal. 1. At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration: Administrative Decisions Review Act 1997, s 65. Child Protection (Working with Children) Act 2012 1. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) : 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. 1. The meaning of the word "risk" was considered by his Honour Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: 'What one is looking for is whether, in all 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. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE, at [26]. 2. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area." Burden of proof 1. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]. 2. Although the Applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and 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. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46. 3. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 at [32]. 4. However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the Applicant poses a real and appreciable risk to the safety of children. 5. An application pursuant to section 27 is a merits review and not a review in which the Applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. 6. The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act. Evidence before the Tribunal 1. The Applicant relied upon the documents he provided to the Respondent (as part of the assessment process) as well as the following documents: 1. Affidavits of CEP affirmed 21 December 2015 and 17 March 2016; 2. Affidavit of CEP's partner, Ms A, affirmed 21 December 2015; 3. Affidavit of CEP's daughter, Ms M, affirmed 21 December 2015; 4. Affidavit of Mr R affirmed 18 December 2015; 5. Report of Dr Katie Seidler dated 21 January 2016; and 6. Affidavit of Ms X, Caseworker at Department of Family and Community Services, affirmed 21 March 2016. 1. The Respondent relied upon the following documents: 1. Bundle of documents filed pursuant to section 58 of the Administrative Decisions Review Act on 13 November 2015. 1. The Applicant, Ms A, Ms M, Mr R, Ms T and Dr Seidler gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent. 2. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act. (a) Seriousness of any matters that caused the refusal of the Applicant's application for a clearance 1. The matters that caused the refusal of the Applicant's application for a clearance were offences of violence committed by the Applicant between 1988 and 2005. 2. The "trigger offence" in this matter was the Applicant's conviction on 10 June 2005 of an offence under section 61 of the Crimes Act 1900 (NSW). The victim of this crime was the Applicant's 16 year old daughter, Ms M. 3. The Police Fact Sheet in relation to the prosecution of this offence, sets out that on 18 March 2005 the Applicant's de facto partner, Ms A, had asked the Applicant to assist her in getting their children ready for pre-school. An argument then occurred between the Applicant and Ms A. The Applicant's 16 year old daughter (Ms M) heard the argument and when the Applicant saw her he yelled at her "Ya dopey cunt, ya fuckin ugly cunt." Ms M yelled back. She went to her bedroom and heard a noise that she thought sounded like the Applicant hitting the toilet wall. The Applicant's de facto partner, Ms A, said to Ms M "do what you have to do, okay." Ms M then went into the lounge room to call the Police. The Applicant grabbed the phone from the Ms M's hands and ripped the telephone cord out of the wall and warned Ms A and Ms M not to call the Police. The daughter hid in her bedroom as the Applicant walked through the house saying "where is the fucking slut?". The Applicant found Ms M in her room and grabbed her by the hair and said "don't you fucking call the Police okay." 4. Ms M managed to retrieve her mobile phone after the Applicant threw it and she then called the Police. The Applicant and Ms A then left the house, continuing to argue, and the Applicant grabbed Ms A by the back of the neck and pushed her into the car. The Applicant then drove Ms A and his young children to pre-school in an erratic manner while continuing to yell abuse at Ms A. 5. On 10 June 2005 the Applicant was convicted and sentenced to serve eight months periodic detention in relation to the assault on his 16 year old daughter on 18 March 2005 and two other counts of common assault and one count of escaping from Police custody. 6. On 22 June 2005, there was an argument between the Applicant and Ms A. The Applicant yelled at Ms A calling her a "slut" in the presence of his 10 year old niece. During this incident the Applicant punched Ms A on the right side of her head and she stumbled backwards. The Applicant picked up an axe handle and hit the bed with it numerous times. Ms A called the Police as she thought he was going to hit her with the axe handle. 7. On 8 August 2005 the Applicant was convicted of assaulting Ms A on 22 June 2005 and sentenced to serve nine months imprisonment. 8. Prior to the offences committed by the Applicant on 18 March and 22 June 2005 the Applicant had convictions for offences of interpersonal violence against Ms A in 1992, 1995, 1999, 2004 and 2005. Facts are not available for all of the offences, however it appears the Applicant's six children with Ms A were at times exposed to the Applicant's physical violence and verbal abuse against her. 9. On 28 October 2011 a Police Event narrative records the Applicant was arguing with Ms A and called her a "slut" and she punched him several times to the face. The Applicant then punched Ms A a number of times to the back of the head and face with closed fists causing her pain but no injuries. The Applicant then kicked the door frame of their front door causing it to break. The Applicant was charged with common assault and damage to the property of the Department of Housing. Those charges were dismissed as no evidence was offered. 10. In his evidence, the Applicant acknowledged his criminal history. He also acknowledged his alcohol abuse together with illicit drug use, which he said included speed and heroin, at the time the offences were committed. 11. The Applicant says that since his imprisonment in 2005, when he participated in the Alternatives to Violence Project while in prison, he has been able to identify and use strategies for managing his anger to avoid the use of violence against others. He further acknowledges that since his participation in this programme he was involved in a further violent altercation with his de facto partner in 2011. That incident did not result in a conviction as the charges were dismissed as no evidence was offered by the Police. 12. It appears that the majority, if not all, of the offences were committed in the context of alcohol and or drug use by the Applicant. Notwithstanding that it appears none of the offences were dealt with on indictment, they are objectively serious. Convictions for certain offences resulted in custodial sentences being imposed. One of the victims was a child, being his 16 year old daughter, and there is evidence that some of the offences were committed in the presence of children or at a time when there were children present in the house. It is well accepted that children can be both the direct and indirect victims of violence and, in this regard, the Applicant's offences are both serious and relevant to the issue of whether the Applicant poses a risk to the safety of children. (b) The period of time since the matter occurred and the conduct of the Applicant since that time 1. It is approximately 10 years since the trigger offence. The Applicant was last charged with a criminal offence in 2011 although not convicted, as the charges were dismissed because no evidence was offered by the Police. 2. The Applicant has been employed with the same company for approximately 20 years apart from the period when he was incarcerated. 3. The Applicant said that his imprisonment in 2005 had a significant impact on him. He was ashamed of his behaviour and its impact on his family. Since early 2015 the Applicant said he has been attending a drug and alcohol counsellor who has been assisting him with strategies to avoid him relapsing. He has a number of strategies which he now uses, such as going for regular walks in the evening, which he states helps "clear my head." He says he is now able to talk with his partner about difficult issues which he said he was unable to do previously. Since his imprisonment in 2005, the Applicant says he has not used any illicit drugs and has reduced his alcohol consumption significantly. He now only drinks socially, usually on weekends or with his workmates on a Friday afternoon or at social events. 4. In addition, the Applicant and his partner have been responsible for the care of his sister's four children who were removed from their mother's care. One of the children has been in their care since 2002 and the others since 2008, 2009 and 2012 respectively. The children were placed with the Applicant and Ms A pursuant to kinship placements. The children are now aged 18, 15, 14 and 8 years. 5. The Applicant's application was made in September 2013 as the Applicant's de facto wife is an authorised carer of his sister's four children. The Applicant lives in the household and therefore requires a WWCC clearance. As a result of the Respondent's decision on 10 September 2015 to refuse the Applicant a clearance, the Applicant was required to leave the family home in order that the children could stay together under the care of Ms A. The Applicant has been living with his daughter, Ms M, close to where Ms A and the children live. He is allowed to visit the home for dinner each night during the week and then return to the home of his daughter. On weekends he is able to return to his home with Ms A and his biological children when his foster children go on respite care with Ms A's sister. 6. The evidence indicates that the Applicant has complied with the directions of the Department of Family and Community Services (FACS) in relation to his care of the children. Furthermore, there is no evidence that the Applicant has breached any of the conditions imposed upon him by FACS. (c) The age of the Applicant at the time the matters occurred 1. At the time of commission of the trigger offence the Applicant was aged 34 years old. At the time of the incident in August 2011 he was 41 years of age. (d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim 1. At the time the Applicant committed the 2005 trigger offence against her, Ms M was 16 years old. She was vulnerable in her relationship with the Applicant because of his greater age, experience and maturity, and also because of his position and authority as her father. Her vulnerability was increased because of the Applicant's long history of domestic violence directed at his de facto partner, who is Ms M's mother. (e) The difference in age between the victim and the Applicant and the relationship (if any) between the victim and the Applicant 1. The Applicant is approximately 18 years older than Ms M, his daughter. (f) Whether the Applicant knew, or could reasonably have known, that the victim was a child 1. The Applicant was the father of Ms M and by virtue of his relationship with her was aware of her age. (g) The Applicant's present age 1. At the time of the Tribunal hearing, the Applicant was 45 years of age. (h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the matter occurred 1. In addition to the offences outlined in preceding paragraphs, the Applicant has convictions for other offences which include resisting arrest, contravening apprehended domestic violence orders (ADVO), assault and robbery. However, with the exception of the August 2011 incident when charges arising from the incident were dismissed as a result of no evidence being offered by the prosecution, all of those offences occurred in, or prior to, 2005. 2. Further details of the Applicant's conduct since 2005 are detailed in earlier paragraphs. (i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition 1. In regard to the likelihood of any repetition of engaging in similar conduct in the future, the Applicant relied on the written report and oral evidence of Dr Katie Seidler, Psychologist. As part of her assessment, Dr Seidler had before her the documentary evidence that comprises the exhibits before the Tribunal. 2. In her report, Dr Seidler details the Applicant's background. She describes his exposure to a range of developmental vulnerabilities and traumas which have impacted on his life, contributing to his psychosocial difficulties and substance abuse. The Applicant told Dr Seidler that he self-medicated with substances following the deaths of his mother from cancer and three of his siblings from heroin overdoses in the 1980s and 1990s. The Applicant reported that after his imprisonment in 2005 he made lifestyle changes including separating from antisocial peer culture. He believes his relationship with his de facto partner is now a positive one although he acknowledged that it had been rocky before as a result of his substance abuse and resulting aggressive and violent behaviour. 3. Dr Seidler reports that the Applicant told her that when he drank he would consume on average 10-12 drinks and that this would "charge him up" but not cause him to become intoxicated. Dr Seidler records that this alcohol use would occur in a patterned way of a weekend when he would drink both on his own, or with friends as a means of relaxing. Dr Seidler says that although the Applicant continues to drink alcohol and to engage with antisocial peers, in general he appears to manage his behaviour well. He acknowledges a relapse in 2011 which occurred in the context of he and his de facto partner drinking. Dr Seidler says that the Applicant's history of drug and alcohol use are salient risks, as is his history of relationship instability, however she says that with the exception of alcohol use these factors are historical. 4. Dr Seidler outlines in her report the limitations of risk assessments. She notes that risk assessments can change as new information becomes available and all risk assessments have an appreciable level of error built into them. Risk assessments attempt to restrict the possibility that spurious factors, such as "gut feeling" and prejudice will sway judgment. Dr Seidler says that decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such source. 5. Dr Seidler assessed the Applicant's risk of future violence utilising the HCR-20 assessment. In her opinion the applicant "does not pose a direct risk to children and young people in terms of violence or abuse." However she states that the Applicant's level of risk of future violence remains moderate-high. She says this risk is seemingly chronic rather than acute or imminent and that "the most likely victim of any future violence will be an adult." The risk to children is far lower and likely to be less direct although she acknowledges that children in his care may be exposed to violence in a domestic context. She says that the length of time since he last offended, and the reported positive changes he has made in his life in the last ten years, work to moderate his risk of future violence. 6. Dr Seidler concludes by noting that the ongoing support of FACS will be important given the challenges faced by the Applicant in caring for the eldest of the children in his care. 7. In her oral evidence, Dr Seidler reiterated that the assessment of the Applicant's risk of future violence relates to his risk generally (that is, to adults), although conceding that children can be the indirect victims of violence. It was put to Dr Seidler that the Applicant's evidence was that he last consumed 10-12 drinks in one sitting in October 2015 at a rugby league grand final social event at his home and that his evidence before the Tribunal was that he no longer consumes this amount on a regular basis. In response she said that the Applicant does have capacity to set limits on his drinking and he has exercised that capacity based on his reports to her during her assessment. 8. Dr Seidler said that as the Applicant was intellectually low functioning this would affect his ability to express insight into his risk factors. 9. The Tribunal found Dr Seidler's written risk assessment report and her oral evidence to be balanced, professional and persuasive. The Tribunal also took into account that Dr Seidler's opinions were not contradicted by any other expert evidence. (j) Any information given by the Applicant in, or in relation to, the application 1. The Applicant seeks a clearance solely to enable him to resume the care of the children living with him pursuant to a kinship placement. That he does not intend to seek employment in child-related employment is largely irrelevant to the assessment of risk. 2. During his oral evidence, it was clear the Applicant had difficulty in articulating the reasons why he says he does not pose a risk to the safety of children. His presentation was consistent with the opinion of Dr Seidler that he is a low functioning individual intellectually and that he is psychologically and socially unsophisticated. He was able to express clearly that he considers he is now a very different person to the one that he was prior to his imprisonment in 2005. He said he has taken steps to address his drug and alcohol problems, which he believes have been successful. He said he does not routinely consume 10-12 drinks in a session and said that this last occurred in the context of a social event at his home in October 2015. The Applicant's admission that he believes he can handle 10-12 drinks in one session was the subject of extensive cross-examination by Counsel for the Respondent. The Tribunal is satisfied that up until the concerns expressed by Dr Seidler over the level of his continued alcohol consumption, that the Applicant was not aware that this level of drinking was unsafe. The Tribunal accepts the Applicant's evidence, which was uncontradicted, that he has not consumed this amount of alcohol since October 2015 and has not consumed alcohol at all since he saw Dr Seidler in January 2016. 3. He said he is continuing to see Mr R, a drug and alcohol counsellor, and intends to continue to see him. He and Ms A have undertaken psychoeducation with a psychologist, through FACS, in relation to the impact of domestic violence on children. 4. The Applicant has been in a relationship with Ms A for the past 29 years. They have six children together and are current kinship carers to four of his sister's children. He and Ms A also regularly look after his sister's children's siblings and cousins who come to visit during school holidays. Following his release from prison in early 2006 he was re-employed in his previous position and has remained in this position on a permanent basis since then. 5. In her evidence, Ms A acknowledged the long history of domestic violence perpetrated by the Applicant prior to his 2005 imprisonment. She said he is now changed substantially and no longer takes drugs of any kind and drinks alcohol not to get drunk but only occasionally as a form of relaxation in social settings. She said the Applicant is now much more willing to talk about issues with her before they become big problems. She said since he was released from prison he no longer loses his temper with the children and is a much better father and partner than he used to be. She also said that she will not tolerate family violence, and if the Applicant was still in the same frame of mind as he was in the past, she would not have him in her house and with the children. 6. Ms A described the impact of the Respondent's decision to refuse to grant the Applicant a WWCC clearance. She indicated it has been very difficult for their family and the children are upset and confused about the situation. 7. The Applicant's daughter, Ms M, gave evidence that the Applicant is currently living with her as a result of the decision by the Respondent to refuse him a WWCC clearance. She said that she has two children of her own and has no concerns about leaving her children with the Applicant unattended. She said the Applicant has "come a long way and turned his life around" since the 2005 trigger offence. She said she does not believe her father meant to harm her on that occasion and accidently grabbed her hair when he tried to grab her mobile phone from her hand to stop her calling the Police. She recalls visiting her father when he was in prison and that he would apologise for what he did to her each time she saw him. She said he showed great shame for his behaviour towards her and her mother. 8. The Applicant relied upon an affidavit of Mr R, Senior Drug and Alcohol Worker with the Aboriginal Medical Service. Mr R also provided a professional reference for the Applicant during the assessment process and gave oral evidence. He has been seeing the Applicant for counselling since early 2015 and said the focus of their counselling sessions has been on relapse prevention strategies. Mr R states that the Applicant no longer uses drugs and consumes alcohol at moderate levels on social occasions. He said he has reiterated to the Applicant that 10-12 drinks in one session is excessive. 9. The Tribunal notes that as part of the risk assessment process, the Applicant provided a number of references including from his employer. These referees speak of the positive changes the Applicant has made in his life and his commitment to the care of his children and his sister's children. 10. FACS completed a placement assessment in 2012. This occurred after the 2011 incident and FACS were satisfied that the Applicant's sister's daughter could be placed with the Applicant and Ms A. Ms X, a Caseworker with FACS, provided an affidavit and also gave sworn evidence at the hearing. Ms X has been involved in her professional capacity with the Applicant and his family for approximately two years. She said that the Applicant and Ms A have provided a strong family placement where the Applicant's sister's children have settled well and feel part of their family. She said she visits Ms A and the Applicant at their home and she has never seen any of the common dynamics of domestic violence between them. She has never seen the Applicant under the influence of drugs or alcohol and the children in their care have never reported or mentioned any behaviour which would lead to her having concerns about the Applicant's behaviour at home. She is aware he has undergone urinalysis this year together with drug and alcohol counselling. She says he is very clear that he does not want his behaviour to impact on his children and foster children. 11. Ms X strongly supported the current placement of the Applicant's foster children as meeting the children's needs and recommended that the Applicant and Ms A remain the long-term kinship carers of the children. She described a number of issues relating to the behaviour of two of the Applicant's foster children which stem from their very troubled background. Ms X said that notwithstanding challenging behaviours by these children, the Applicant has coped well and there have been no concerns about his behaviour in response to this. She was very clear in stating that if there were any issues of concern identified in relation to the Applicant, either in relation to his drinking or concerns about domestic violence, that FACS would move quickly to step in. According to Ms X, FACS will maintain close contact with the Applicant and his family if the Applicant is granted a WWCC clearance. 12. Counsel for the Applicant submits that the Applicant does not pose a risk to the safety of children and the Respondent's decision should be set aside. In particular, Counsel for the Applicant noted that Dr Seidler's assessment of moderate-high risk is an assessment of general risk of violence which is likely to be targeted at adults rather than children. Counsel submits that the Applicant has made permanent changes to his life and overcome longstanding drug and alcohol addiction which shows strength of character and determination. She said there is no evidence of destabilising factors to put such changes at risk. Counsel submitted that it was open to determine on the available evidence that the Applicant does not pose a real and appreciable risk to the safety of children. Counsel said regard should be had to the fact that apart from one violent altercation in 2011, which he frankly acknowledges, the Applicant has not been convicted of any offences since 2005. Further, Counsel for the Applicant says regard should be had to the care and protection that the Applicant and Ms A have given to the children in their care. (k) Any other matters that the Children's Guardian considers necessary 1. The Respondent opposes the application, however, conceded that the Applicant has made significant changes in his life and noted that the refusal of the WWCC clearance may have been a "watershed moment" for the Applicant. The Respondent's Counsel says that if the Applicant engaged in violence it would be most likely in the context of a significant personal event or alcohol abuse and in these circumstances the Tribunal cannot be confident that the Applicant would pose no risk to the safety of children exposed to his physical and verbal abuse. Conclusion 1. In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the Applicant a WWCC clearance, and to decide what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law. 2. The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the Applicant poses a risk to the safety of children. 3. Relevantly, a WWCC clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children. It has previously been held by this Tribunal that no conditions may be placed on the issue of a WWCC clearance. 4. The Applicant comes before the Tribunal with a history of criminal offences dating from approximately 1986. That history gives rise to concern and has required careful consideration by the Tribunal. 5. The trigger offence was objectively serious, as were the Applicant's other offences include domestic violence offences against his de facto partner. The last offence of which the Applicant was convicted occurred 11 years ago. The most recent relevant conduct occurred in 2011 when the Applicant was involved in a violent altercation with his de facto partner. It is clear that at the time of most of his offending, the Applicant was a very heavy user of illicit drugs and alcohol. His offending was committed in a context of significant drug and alcohol abuse. The 2011 incident occurred in the context of the Applicant drinking. 6. The Tribunal notes that the Applicant has made important changes to his lifestyle since that time. He has significantly reduced his alcohol intake and has changed the circumstances of his consumption. The Applicant's lack of recent convictions coincides with his reduction in alcohol use and abstinence from illicit drugs. The change in lifestyle has been in effect for more than 10 years and has been reinforced by the Applicant's responsibilities of caring for his sister's four children. His change in lifestyle is corroborated by his partner and others including, significantly, his daughter who was the victim of the trigger offence in 2005. The Tribunal accepts the evidence of the Applicant, Ms A and Ms M on the issue of the change the Applicant has effected on his lifestyle. 7. The Tribunal was satisfied that the Applicant has accepted responsibility for his prior conduct, the poor choices he has made in the past and is committed to remaining outside of the criminal justice system. The Tribunal is also satisfied that his focus is now on the care of the children for whom he has responsibility and that this is his priority. He enjoys a stable relationship with Ms A, and is actively involved in his children's lives. He remains in stable employment which he has held for approximately 20 years. The Tribunal finds that the Applicant's children and foster children in his care are much loved and important figures in the Applicant's life. The Tribunal accepts that he is genuine in his desire to raise these children to the best of his and his partner's abilities. 8. In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely attendance at an educational course to understand the impact of family violence on children, and drug and alcohol counselling to address his use of alcohol and illicit drugs. He says he will maintain attendance at counselling sessions and will seek assistance if he feels at risk of relapse. 9. The Tribunal gave considerable weight to the expert evidence, which was not contradicted by any other professional evidence. The Tribunal accepted Dr Seidler's opinion that the risk of future violence is predominately related to adults and therefore the risk to children is far lower and likely to be less direct. The Tribunal also accepted Dr Seidler's opinion that the risk is reduced even further in light of the length of time since he offended and the positive changes the Applicant has made in his life in the last ten years. 10. The Applicant is, and will remain, subject to regulation as a consequence of being a member of the household of his partner who is the authorised carer of foster children. In this regard, there are safeguards in place in relation to that his partner's role, including conditions that may be imposed by FACS should the circumstances warrant it. 11. The Tribunal is satisfied that the Applicant now has real insight into the gravity of his behaviour and sincerely regrets his actions and their likely adverse impact on his family including his children and foster children. The Tribunal accepts that he has learned from his actions at considerable personal cost. The Tribunal has placed particular weight on the stability of the applicant's family structure including his long term relationship with Ms A and the support and trust which he enjoys from his daughter, Ms M. In addition, the Tribunal places weight on his long period of stable employment, his abstinence from drugs and the limits he places on his consumption of alcohol. 12. The Tribunal has considered all of the matters in s.30 (1) of the Child Protection (Working with Children) Act. The available evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the Applicant. The Tribunal is satisfied the Applicant does not pose a real or appreciable risk to children, and the correct and preferable decision is to grant the Applicant a WWCC clearance. ORDERS 1. Accordingly, the Orders of the Tribunal are as follows: 1. The decision of the Children's Guardian dated 10 September 2015 to refuse the applicant's Working with Children Check clearance is set aside. 2. In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2016