Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CFR v Children's Guardian [2016] NSWCATAD 159 Hearing dates: 25 May 2016 Date of orders: 20 July 2016 Decision date: 13 July 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member P Foreman, General Member Decision: (1) The decision of the Children's Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside (2) In substitution of that decision, the following decision is made: the Applicant is granted a Working with Children Check Clearance. Catchwords: ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian [2014] NSSWCATAD BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 The Commissioner for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: CFR (Applicant) Children's Guardian (Respondent) Representation: Counsel: D Randle (Applicant) A Douglas-Baker (Respondent) Solicitors: Anderson Boemi Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510680 Publication restriction: 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 Introduction 1. The Applicant is a twenty five year old man who currently lives with his mother and her partner on the outskirts of Sydney. In 2011 he was charged, initially with murder, and then alternatively with manslaughter, in relation to the death of his father. He was acquitted of all charges by His Honour Justice Maxwell of the Supreme Court of NSW. 2. The Applicant applied for a Working with Children Check clearance ("WWCC clearance") in February 2015. At the time he was studying to become a nurse and required a WWCC clearance to undertake clinical placements. 3. The charges of murder and manslaughter are offences (trigger offences) that require the Respondent to undertake a risk assessment pursuant to Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act). In April 2015, the Respondent imposed an interim bar on the basis of a likelihood of risk to the safety of children and the risk assessment recommended that the Applicant is refused a WWCC clearance. 4. The Applicant provided comprehensive submissions in response to this recommendation through his solicitor. The Respondent refused the application in October 2015. The reasons for refusal were "due to the seriousness of the trigger record, you are considered to pose a risk to the safety of children". 5. The Applicant lodged an application for review of that decision pursuant to s 27 of the Act. A hearing was held on 25 May 2016 in Sydney. 6. The Tribunal must decide what is the "correct and preferable" decision having regard to the material before it, including material which may not have been before the Respondent: Administrative Decisions Review Act 1997 (NSW), s 63 (1). The Tribunal may affirm, vary, set aside or make a decision in substitution for the decision under review. 7. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the applicant without leave of the Tribunal. Do the 2015 amendments to the Act apply? 1. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. These amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and 2. It is in the public interest to make the order. 1. The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made to the Respondent before the amendments came into effect. The Applicant lodged his application for a WWCC clearance before the amendments commenced operation and as a result the amendments do not apply to these proceedings. The object of the Act 1. The Act requires persons engaged in child-related work to have WWCC clearances: the Act, s 3 and s 8. 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. 2. Neither the Applicant nor the Respondent bear an onus of proof in relation to this application: BJB v NSW Office of the Children's Guardian [2014] NSSWCATAD 111 at [32]. The Act does however impose a duty on the Applicant to fully disclose to the Tribunal any matters relevant to an application for a WWCC: section 28 (5) of the Act. 3. The Tribunal must determine on the balance of probabilities whether the Applicant poses a risk to the safety of children having regard to the factors set out in section 30 (1) of the Act (as it was at the time of the Applicant lodging his application to the Respondent for a WWCC clearance). 4. The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children': at [42] 1. The Tribunal has followed this meaning of risk: See for example AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. 2. The Tribunal's jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. Evidence 1. The Tribunal was provided with the following material to determine this application: 1. Three bundles of documents filed by the Respondent received on 17 December 2015, 14 April 201, and 11 May 2016 (the section 58 documents); 2. Affidavit of the Applicant dated 18 May 2016 (Exhibit 1); 3. Report by Dr Olav Nielssen dated 28 February 2016; and 4. An exhibit tendered in the Applicant's criminal trial (Exhibit 2); 1. Written submissions were provided to the Tribunal by both parties as follows: 1. Respondent's Outline of Submissions dated 11 May 2016; and 2. Applicant's Outline of Submissions dated 24 May 2016. 1. The parties agreed on the evidence to be relied upon in these proceedings and some documents held on the Tribunal file identified as confidential by the Applicant were not sought to be produced. 2. At the Hearing the Applicant gave evidence in person and Dr Olav Neilssen gave evidence by phone. Scope of dispute between the parties 1. The parties through their legal representatives informed the Tribunal that there was common ground in relation to the conduct of the Applicant during the commission of the trigger offences. Those facts are not in dispute. The parties submitted that what is left for the Tribunal to decide, is whether the Applicant's conduct gives rise to a real and appreciable risk to the safety of children. 2. The Applicant's case is that his conduct was an isolated response to extreme and unique circumstances, which do not amount to him posing a real and appreciable risk to the safety of children. The Respondent's counsel submitted that in determining whether there is a real and appreciable risk, the Tribunal should also look at the Applicant's conduct since being acquitted of the charges. The Tribunal's decision 1. The Tribunal carefully considered all the evidence and submissions presented to it, including the evidence available of the Applicant's conduct since the trigger offences, and concluded that the Respondent's decision should be set aside on the basis that the Applicant does not pose a real and appreciable risk to the safety of children. The reasons why the Tribunal came to this view are set out below. The Trigger offences 1. The Applicant was initially charged with murder and later in the alternative, with manslaughter, in relation to the death of his father. The facts surrounding this event are summarised as follows: the Applicant and his father had been living together since the Applicant was 11 years old. On the morning in question, the Applicant entered his father's bedroom after hearing a noise emanating from there to discover him hanging from a rope in a state that looked to him as though his father had committed suicide by hanging himself. This was the morning after a day when the Applicant and his father had been arguing. He released his father from where he was hanging, and believing him to be deceased, was overcome with emotion and struck his father with a baseball bat three times – one major blow followed by two smaller hits or taps. At the time the Applicant struck his father with the baseball bat, he did not realise that his father was still alive. These facts are not disputed by the parties. The Tribunal also accepts this is what had occurred. 2. Some time elapsed before the Applicant called 000 emergency services. It was not in dispute at the criminal trial that the Applicant delayed calling 000 for help for ten or fifteen minutes. Also that during the time before the ambulance was called, the Applicant washed his father's blood from his hands with methylated spirits, and washed the blood from the jacket he was wearing. His father succumbed to his injuries and charges were laid against the Applicant. The Tribunal was provided with the Judgment of Justice Campbell from the criminal trial. 3. The Judgement sets out in detail the events that led up to the Applicant's discovery of his father on that morning. The Applicant was on a mid-semester break from university and had been spending time with friends. His father was annoyed about this and they had a number of arguments throughout the day and in particular an argument about the Applicant's desire to leave home. The Applicant told the Tribunal that during the course of these arguments his father said to him that he was going to "make some changes" and he would find out "when they happen". The Applicant subsequently believed that his father was signalling to him his intention to kill himself. 4. Under cross examination by the Respondent, the Applicant agreed that he hit his father when he was in a "lifeless and vulnerable state". He said that after he released him from where he was hanging, he checked for a pulse and could not find one. He also could not see that his father was breathing. He told the Tribunal that nothing "felt real". He felt guilty and responsible for his father taking his own life and also angry at his father "for doing this to me". The Applicant said he was both angry at himself and at his father for leaving him. He saw a baseball bat beside the door of the bedroom and grabbed it and hit his father with it three times. He said there was "so much blood" and it was the most "intense" and "traumatic" event he had ever been through. He was "shocked" that he was capable of "that kind of violence". He said "I didn't know how to process what I was seeing". 5. The Tribunal accepts the Applicant's account of the traumatic nature of what had occurred and that he was overcome by an intense and complex emotional reaction. Finding his father had hanged himself in his bedroom and believing that he had taken his own life following a day of arguing with him, caused an extreme reaction in him, which could not have been predicted and was violent but also very shocking and distressing to him. Family history and context 1. The evidence provided to the Tribunal paints a picture of a complex and at times problematic relationship between the Applicant and his father and assists to understand the Applicant's explanation of his reaction to believing his father had killed himself. The Applicant is an only child. His father was from Chennai (formerly Madras) in India. His mother was born in England but grew up in Australia. Following the separation of his parents when he was 11 years old, the Applicant lived with his father and Family Court proceedings were acrimonious and involved the Applicant going through a series of assessments and reports for the purpose of these proceedings. 2. The Applicant told the Tribunal the relationship he had with his father had unhealthy aspects to it. He believed his father manipulated him so he would have no contact with his mother while he was growing up. He had been living with his father from the time his parents separated. In a report written by Dr Brent Waters dated 13 December 2004, which was prepared for the Family Court proceedings and contained in the Respondent's s 58 documents, he states "I formed the view that [the Applicant's] relationships are rather skewed in his father's favour. While in part his mother's submissiveness with his father was I believe because she accurately appraised that there was little benefit of open conflict with him, there also appeared to be an automatic component to this which was of some concern, and in my view reflects an unhealthy dynamic between she and her son which is not entirely of her making, but which in my view has been powerfully influenced by the father. At this point [the Applicant] appears to have become quite alienated from his mother". 3. The Applicant told the Tribunal there was also a "toxic element" in the relationship between him and his father and what he went through with him was similar to what his mother "must have gone through". He said the contact he has had with professionals such as Dr Neilssen since his father's death, has helped him to understand and gain insight into the difficult relationship he had with his father and the reaction he had to his apparent suicide. The Applicant said he believes his father was saying to him in attempting to kill himself that "if you don't want to live with me, live without me". This is consistent with the evidence presented at the criminal trial. Justice Campbell found that the Applicant's father was a difficult man and accepted the evidence of the psychiatrist Dr Matthew Large, that the deceased had a narcissistic personality disorder and a morbid jealousy. Dr Large said he needed the support of his son to support his own ego and he needed his son to see him more favourably than other people. 4. Dr Olav Neilssen wrote a report dated 2 August 2013, tendered in the criminal trial on behalf of the Applicant, which also states "I concur with the opinion of Dr Large, that the information about [the Applicant's] father suggests that he had an abnormal personality that is likely to have affected his son's achievement of the main task of adolescence, which is the development of an individual identity and separation from his parents. The report by Dr Waters suggests that [the Applicant] chose to stay with his father when he was thirteen in order to look after him, and it seems that he had acceded to his father's wishes for much of his adolescence. Hence his father's actions in committing suicide in the way he did, soon after an argument about separating, can be interpreted as a spiteful act that would hurt his son". Dr Neilssen also wrote that the Applicant's "predominant emotion after he taken (sic) his father's body down and realised he was dead was one of anger, which can be understood as a reaction to his father's behaviour in apparently committing suicide in a way that would be calculated to upset him and make him feel guilty. He is also likely to have felt extremely angry in response to being abandoned by his father". 5. The findings of Justice Campbell in relation to the Applicant's father and their relationship and the comments made by Dr Large, Dr Waters and Dr Neilssen, provide compelling insight into the context that is likely to have contributed to the Applicant's reaction to finding his father to have apparently suicided, in their home the day after they had been arguing about the Applicant leaving home. These findings and comments are consistent with each other and support the Applicant's evidence of their problematic and complex relationship, and provide important background to the unique set of circumstances that surrounded the trigger offences. 6. The Respondent refers to Justice Campbell having "great difficulty accepting" that the Applicant "having released his father from hanging could then, by any understandable process of human emotion, take to the same parent with a baseball bat". His Honour said "At the outset, this seemed to me to be so far beyond what I would regard as the expected range of ordinary life experience as to be fanciful". However Justice Campbell said that on the basis of the evidence of Dr Neilssen, he was prepared to accept the response of the Applicant as at least "understandable" also taking into account the evidence from former teachers about his "good character". 7. The Tribunal agrees with the Respondent's submission that it should accept this finding of Justice Campbell. On the basis of the evidence available, the Tribunal considers that the Applicant's conduct was at the very least, understandable in all the circumstances. 8. The Respondent also submitted however, that the Applicant demonstrated an apparent lack of insight into his own offending, "albeit an apparent lack of insight identified in the immediate aftermath of the events", and "this raises concerns about the Applicant's ability to control his emotions and behaviour in situations of intense emotional stress and in situations that may invoke anger, particularly where the applicant does not get what he wants or feels he has been wronged". This concern is in part based on the answers the Applicant gave in a screening questionnaire when he first entered into custody and comments made by Corrective services staff while the Applicant was held on remand. 9. However this concern is not supported by the expert report provided by Dr Neilssen in 2013 for the Applicant's criminal trial, particularly where it states that the Applicant told him that "I felt so much guilt…he is my father I still loved him…I was so angry at what he had done…that is when it really hit me…it was really personal and that he had done this to me…I was crying…I saw the baseball bat and hit him really hard…I went to hit him again but after I was so much blood I just tapped his body a few more times…I knew he was dead and felt really guilty about that too." This would indicate that the Applicant did have insight into what he had done and felt guilt in relation to it. Also under cross examination by the Respondent, the Applicant agreed that his reaction was outside the realm of what is expected in the community. He said he had difficulty understanding it at the time but was helped to come to terms with it after speaking to Dr Neilssen. 10. At no stage during these proceedings did the Applicant seek to minimise his role in his father's death. He accepted responsibility for his part in it and the Tribunal finds that he does understand the extreme and grave implications of his conduct and how it contributed to his father's death. The Tribunal appreciated that this realisation would have been difficult for the Applicant to have come to terms with at the time, especially given his age and family history, but he has done so. The Tribunal found the balance of evidence to not support the Respondent's submission that the Applicant lacked insight into his conduct. Rather the Tribunal considered the Applicant's evidence about his role in his father's death to be both forthcoming and insightful. Events following the trigger offence 1. The Applicant was held on remand in the maximum security section at Silverwater Correctional facility. He said to the Tribunal that he tried to adapt to the situation as best he could. He sought employment within the prison and the records the Tribunal has been provided with indicate that were no complaints about his behaviour while in custody. Rather, he was given trusted positions and a document was provided to the Tribunal as evidence of one occasion, when the Applicant handed in a knife to custodial officers which was recorded and remarked on very favourably by Corrections officers (exhibit 2). 2. The Respondent asked the Applicant about some answers he gave to questions during the screening process on entry into prison. The Applicant explained to the Tribunal that at the time of giving those responses he was still in shock from the events surrounding the death of his father and did not recall answering some of the screening questions. He also said he answered the questions in accordance with the legal advice given to him at the time. To the extent there are some minor inconsistencies in some of the Applicant's responses to these screening questions, the Tribunal found the Applicant's explanation of them to be plausible and understandable in the circumstances and there was no basis for any adverse findings against the Applicant that arise from these responses. 3. The Applicant told the Tribunal that since being acquitted of all criminal charges he has tried to make the most of work and education opportunities and has been either employed or attending university or doing both simultaneously. His ultimate goal is to complete a post-graduate degree in medicine. Whilst awaiting the outcome of these proceedings, he has been working full-time driving trucks and doing general labouring duties. He was questioned by the Respondent about his attitude and conduct at work and there was no evidence of any behaviour or conduct that would suggest that the Applicant could pose a risk to the safety of children. 4. The Applicant sought and continues to receive professional help to assist him with his mental health, which include anxiety and panic attack as well as dealing with issues in his day to day life. He is being prescribed medication by his GP, which he says is also helping. The Applicant currently lives with his mother, who is a nurse, and her partner. His mother provided support to the Applicant in obtaining a WWCC clearance. The close and supportive relationship the Applicant now has with his mother is significant because while his father was alive, they were estranged for many years. 5. The Applicant told the Tribunal about current stressors in his life, which include these proceedings and being responsible for selling his father's estate in India. The Tribunal found the Applicant's evidence about the state of his mental health, the stressors he is dealing with and the hopes he has for his future to be genuine and insightful. The Tribunal concluded that the evidence of the Applicant's conduct since his acquittal did not support a finding that he poses a risk to the safety of children. The Expert evidence 1. The Respondent raised concerns about the Applicant's ability to regulate his emotions in situations of intense emotional stress or in situations that might invoke anger. The Tribunal must determine whether the Applicant's reaction is sufficient to justify this concern. This concern is not supported by the expert evidence of Dr Neilssen. 2. Dr Olav Nielssen's report dated 28 February 2016 was written in response to a request from the Applicant's solicitor's for these proceedings. As noted earlier in these reasons, Dr Nielssen previously provided a report for the Applicant at his criminal trial. Dr Neilssen report provides a diagnosis of Anxiety disorder. This is based on the Applicant's account of panic attacks and anxiety which has warranted treatment in the form of regular counselling and medication. Although the Applicant did report being depressed after being remanded in custody and following the loss of his father, he did not report any protracted or severe episodes since the trial and did not appear depressed at the time of being interviewed. Dr Nielssen found no features suggesting the presence of a form of personality disorder. 3. Of particular relevance to these proceedings, Dr Nielssen's report states: "I did not identify any features of [the Applicant's] clinical history or presentation to indicate any risk of harm to children who might be placed in [the Applicant's] care, and hence I do not recommend interventions to mitigate risk. In my opinion, his probability of committing any kind of offence is very low, and from the information that is available, his risk of offending against children is also very low, and below that of the large proportion of the community who do have substance use disorders, criminal convictions and unstable and untreated psychiatric disorders". 1. The oral evidence Dr Nielssen gave to the Tribunal, was that his initial view of the Applicant being candid and forthcoming had not changed. Indeed, he found the Applicant to be "pretty impressive". He said the Applicant's character was "solid" and described him as a "mature young man". He said there was nothing in the Applicant's past that would suggest he is a threat to children. He said the circumstances surrounding the trigger offences were unique and traumatic and does not inform us about the Applicant's conduct generally in the community. He said the Applicant has insight into his conduct and has demonstrated he can think about it in a reflexive way. He said the Applicant's conduct and the way he reacted to his father was a plausible explanation. He did not see a connection between the Applicant's conduct in relation to this event and a risk to the wider community. 2. The Tribunal is persuaded by the expert evidence of Dr Neilssen, which does not support a finding that the Applicant's conduct that gave rise to the trigger offences, points to a likelihood of a repeat of such a reaction or conduct in circumstances where he might be confronted or tested emotionally in some way in the future. The Tribunal accepts that the Applicant's conduct was an isolated event, which was provoked by a unique and extreme set of circumstances. Section 30 (1) factors Seriousness of the offences with respect to which the person is a disqualified person or any other matters that caused a refusal of a clearance or the imposition of an interim bar 1. The trigger offences of murder and manslaughter are of a most serious nature. However the Applicant was acquitted of all charges. There were unique and mitigating circumstances in relation to the Applicant's conduct that gave rise to these charges. 2. The Applicant has no history of interpersonal or sexual violence. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. It has been five years since the trigger offences occurred. Since that time, after he was released from remand, the Applicant has been employed or studying to be a health professional. 2. He has sought the assistance of health professionals and continues to do so. 3. There have been no incidents or complaints about the Applicant's conduct. The age of the person at the time of the offences or matters occurred 1. The Applicant was 19 years old. The age of the victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim 1. The Applicant's father was 49 years old. The difference in age between the Applicant and the victim 1. The Applicant was 30 years younger than his father. Whether the Applicant knew that the victim was a child 1. The Applicant's father was not a child. The Applicant's present age 1. The Applicant is currently 25 years of age. The seriousness of the Applicant's overall criminal history and the conduct of the person since the offence 1. Other than the trigger offences the Applicant has no criminal history and has not been the subject of any complaints or incidents concerning interpersonal or sexual violence. 2. At the criminal trial, character references were provided by the Applicant's former teachers, and Justice Campbell found them to be impressive witnesses. These witnesses attested to the Applicant's overall good conduct and character including honesty, integrity and diligence. 3. The Applicant also provided the Respondent with a reference from his mother dated 30 August 2015, who is a health professional and "a mandatory reporter". She is living with the Applicant and states that both she and her husband, who is a teacher, "confidently advocate" for the Applicant. She states that she has observed the Applicant with his younger cousins and found him to be caring and patient. She says he has the support of very stable extended families. 4. The Applicant also provided a reference from a current employer which confirms that the Applicant has been casually employed at several sites based in Sydney since December 2013 and is still currently employed. It states that every client that has worked with the Applicant has asked for him to come back and that he is reliable, hardworking and dedicated to doing a good job. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. Dr Neilssen's expert view is that the Applicant is a very low risk of reoffending and a very low risk to the safety of children. The Respondent said that she did seek challenge the evidence of the Applicant's good character that was provided by his teachers at the criminal trial. 2. The Tribunal is persuaded that the Applicant's conduct arose out of unique and extreme circumstances and as such is considered to be an isolated event. 3. There is no evidence to support a finding that beyond this isolated event, the Applicant has difficulties controlling his emotions or is at risk of generalised violence. Conclusion and orders 1. The Tribunal has concluded that the Applicant does not pose a real and appreciable risk to safety of children. 2. The Tribunal orders that: 1. The decision of the Children's Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside 2. In substitution of 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: 20 July 2016