Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CMA v Children's Guardian [2016] NSWCATAD 264 Hearing dates: 26 October 2016 Date of orders: 21 November 2016 Decision date: 21 November 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 to cancel the Applicant's 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) Child Protection (Prohibited Employment) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian [2014] NSSWCATAD 164 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ NSWCA 111 The Commissioner for Children and Young People v V [2002] NSWSC 949 Smith v Commissioner Police 2014 NSWCATAD 184. ZZ v Secretary to the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CMA (Applicant) Children's Guardian (Respondent) Representation: Counsel: C Parkin (Applicant) G Moore (Respondent) Solicitors: Slater and Gordon Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1610154 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 forty one year old woman who is married and has three children aged 18 years (C1), 11 years (C2) and 9 years old (C3). The family live together in Sydney. In 2014 she was charged with assault occasioning actual bodily harm following the use of physical force to discipline C2. The Applicant relied on a defence of lawful correction but was found guilty in the Local Court and sentenced to a bond without conviction for 12 months, which has now expired. 2. The Applicant was granted a Working with Children Check clearance ("WWCC clearance") in 2014. Following the charge being proven, the Respondent was required to conduct a risk assessment: Child Protection (Working with Children) Act 2012 (the Act), s 15 (1). In July 2015, the Respondent imposed an interim bar on the Applicant working with children. In February 2016, the Respondent cancelled the Applicant's WWCC clearance. 3. The Applicant lodged an application for review of that decision pursuant to s 27 of the Act. A hearing was held in Sydney and the Applicant was present. Both the Applicant and Respondent were legally represented. 4. The Tribunal must determine the "correct and preferable" decision with 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. 5. 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. The 2015 amendments to the Act 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 the amendments apply to these proceedings, the Applicant is required to meet the additional test provided by s 30 (1A) of the Act as follows: (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 Respondent's written submissions to the Tribunal included that the Respondent did not consider that section 15 (4A) did not applied to the Applicant at the time the decision was made to cancel her WWCC clearance. At the Hearing the Applicant and Respondent agreed however that, section 30 (1A) of the Act applies to these proceedings, and submissions were made by both parties on that basis. 2. The Respondent does not oppose or consent to the application before the Tribunal. 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. The Act imposes 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. 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: 1. Administrative review application form filed 10 March 2016 2. Affidavit of the Applicant dated 9 June 2016 3. Psychiatric report from Dr Olav Nielssen dated 17 June 2016 4. Affidavit of WE dated 16 June 2016 5. Two bundles of documents filed by the Respondent received on 3 May 2016 and 9 May 2016 6. Photos of C2 tendered at the Hearing 1. Written submissions were provided to the Tribunal by both parties as follows: 1. Respondent's Submissions dated 10 October 2016; and 2. Applicant's Submissions dated 12 September 2016. The Tribunal's decision 1. The Tribunal after carefully considered all the evidence and submissions presented to it concluded that the Respondent's decision should be set aside and the Applicant granted a WWCC clearance. The reasons why the Tribunal came to this view are set out below. The Trigger offence (the incident) 1. The Applicant was charged with Assault Occasioning Actual Bodily Harm following an incident in November 2014 involving C2 (the incident). The incident occurred one morning when the Applicant was getting her three children ready for school. Her eldest child (C1) has autism and a developmentally delay, and is non-verbal. He requires her full attention to get ready to be picked up by a special taxi in the morning. Once he is picked up, the Applicant focuses on getting her other two children ready for school. 2. On this particular morning C2 was not following the Applicant's directions and needed more prompting than usual to get ready. Her evidence is that C2 was being cheeky and argumentative. The Applicant picked up a roll of contact paper that is used to cover school books, which happened to be in the children's room, and she said that she used it initially to "tap" or "nudge" C2 on the buttocks to hurry him along. However when he continued to not follow directions and say things to the Applicant that she found to be "disrespectful", she hit him several times with the roll of contact paper, more forcefully on his legs, arms and buttocks. 3. That morning at school, a teacher noticed raised red marks or welts on C2's body. On the same day the school made a report to the Police. The Police interviewed the Applicant that afternoon in her home and she admitted to hitting C2 with the roll of contact. The Applicant was charged and the matter heard in the Local Court. In finding the Applicant guilty, Her Honour observed: "Regardless of a lack of a plea of guilty this lady is 40 years old with no record, under tremendous pressures but that does not excuse what happened. Please do not think I am saying that; it does not but I, myself personally on this bench am reluctant to convict her". 1. Her Honour noted that the Applicant was an "honest witness" and ultimately imposed a bond without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 for 12 months. The term of the bond expired without incident. The Applicant's circumstances 1. The Applicant came to Australia from Timor with her parents when she was 7 years old. Her affidavit describes her parents smacking the children using thin canes from a palm tree if they were disrespectful or misbehaved. The Applicant told the Tribunal that she was rarely punished to this extent because she was the youngest child of 12 siblings, but it did leave her with an impression that children should listen to their parents in order to avoid this sort of punishment. 2. The Applicant finished high school in 1993. She has recently completed a Diploma of Children's Services and hopes to complete a Bachelor of Education (Early Childhood), which she commenced in about 2011. 3. Prior to the interim bar to working with children being imposed on her, the Applicant was employed by the Department of Education as a playgroup facilitator. In this role she coordinated and ran activities for children between the ages of 2 and 5 years and liaised with their parents. She had been in this role for about 3 years, which included running parenting sessions with her supervisor to assist parents prepare children for school. 4. The Applicant told the Tribunal that she liked this work very much and hoped to return to it. In her affidavit she described what she loved about being a playgroup coordinator was "meeting with families, talking to them about the difficulties that I had faced (having raised a child with Autism), helping them and being able to refer families to the community assistance they are entitled to". She said that she had wanted to be a teacher since she had first had children and in particular, she wants to be a teacher for special needs children. 5. The Applicant said that in the days leading up to the incident she had stayed up late to complete course assignments that were due. She had very little sleep and had not been eating properly. She said she was "completely exhausted" and "mentally I wasn't there". The Tribunal accepts that the Applicant was unusually tired and that this had a significant impact on her state of mind at the time. 6. In recounting the incident, the Applicant told the Tribunal that she did not know exactly how many times she struck C2 but gave an approximation that was generally consistent with the evidence she gave in the Local Court. She conceded to the Tribunal that she lost control of her reaction and this should not have happened. 7. Under cross examination by Respondent's counsel, the Applicant said that at times she would say to her children that if they did not do as they were told they would get "bum bum". She described this as a kind of "tapping on the bum" or a "nudge" on the buttocks. In her affidavit she said that she gave her children the occasional smack on the bottom when they were young but that she had "not used physical discipline on my children". At the Hearing the Applicant sought to correct or clarify this evidence. She told the Tribunal that she did not occasionally "smack" her children. She said that she did at times give them a nudge or a "bum bum" when she thought it was necessary. The Applicant said this was different to what she considered to be a 'smack' because it did not involve force. The Tribunal asked the Applicant whether another difference between a smack and a nudge in her mind was the question of self-control. The Applicant affirmed her understanding of a smack included not being in control. She said that during the incident with C2, she was at first in control when she was giving him a 'nudge'. But then she lost control and smacked him with the roll of contact paper. She said her "mind was not there" when this was happening. She said that this was an isolated event due to unusual circumstances and that she had never before used this form of physical punishment on her children. 8. About 3 months after the incident occurred, the Applicant voluntarily undertook parenting classes. The Applicant attached to her Affidavit a letter from the course provider of these classes, which confirmed the Applicant's attendance and described her engagement and participation in the program as "excellent". 9. The Applicant said that she had benefitted from these classes, for example she learned that if she is sleep deprived, she should only deal with things that she can handle and come back to the things she can't when she can be more focussed. She said that she has also learned that she needs to take time out for herself and to also ask her husband to help out more. The Applicant said she had incorporated these learnings into her life. 10. The Applicant said the classes included material about it being inappropriate to strike or physically discipline children in any situation, which she said she agrees with. She has developed alternative strategies to set limits and imposing consequences for not complying with directions (such as withdrawing 'free time'), which she said has been working. She said that she has delegated more responsibility to her husband and is more able to deal with things in a constructive manner. 11. Following the incident the Department of Family and Community Services (FaCS) assessed the Applicant and the family. The file notes indicate that the Applicant cooperated with FaCS and the file was closed in 2015 with no action being taken against the Applicant. There is no evidence of FaCS having any concerns about the Applicant's children being at risk while in her care. The Expert evidence 1. Dr Nielssen's psychiatric report dated 2 June 2016 was based on reviewing documentary material such as the transcript of proceedings in the Local Court and interviewing the Applicant. The mental state examination revealed no signs of neurological disorder. The report states that the Applicant's manner was mildly anxious and she described feelings of depression arising from the proceedings but did not appear to be especially depressed at the interview. There was no suggestion of psychotic illness or brain injury. Her intelligence was estimated to be in the normal range. Dr Nielssen did not find a psychiatric disorder of a kind associated with a pattern of impulsive or irrational behaviour that might place a child at risk in her care. 2. Dr Neilssen reported that the Applicant expressed remorse about the incident. He said on the basis of his experience as a general and forensic psychiatrist for over 20 years and the research he has conducted about serious violence against children, he 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 her care". 3. Dr Neilssen told the Tribunal that it is not possible to ever say that there is no risk, but in relation to his assessment of the Applicant, the risk is as low as it is possible for him to declare. The factors he took into account in assessing the risk posed to the safety of children included that the Applicant was contrite and had learned from the incident, her background and history, and the fact that there was only one incident of this kind. The Respondent did not challenge Dr Neilssen's assessment of the risk posed by the Applicant to the safety of children. Section 30 (1) factors Seriousness of the offences 1. The trigger offence involved a child which is serious. The Tribunal was presented photos of the injuries sustained by C2 which clearly showed that he had red marks on various parts of his body. There is evidence that C2 was upset at the time and following the incident. 2. The precise number of times the Applicant hit C2 with the roll of contact paper is not known. There are slight variations in the account of the Applicant and C2 with regard to the amount of times he was hit, which in all the circumstances is understandable. It would appear to be somewhere between 10 and 20 hits but the severity of each of the hits is also not known with the Applicant saying that at first they were taps or nudges before they escalated into more forceful hits or smacks. 3. It is relevant that the maximum penalty for the charge proven against the Applicant is up to 2 years imprisonment, or 50 penalty units, or both; s 267 (2) Criminal Procedure Act 1986. Her Honour decided to not convict the Applicant notwithstanding the Applicant did not enter a not guilty plea and imposed a bond of 12 months. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The trigger offence occurred about 2 years ago. The age of the Person at the time the matters occurred 1. The Applicant was 39 years old. The age of the victim 1. The victim was the Applicant's child and was 7 years old at the time. The difference in age between the Applicant and the victim and their relationship 1. The relation was that of a mother and child. The age difference is 32 years. . Whether the Applicant knew that the victim was a child 1. The Applicant knew the victim was a child. The Applicant's present age 1. The Applicant is currently 41 years of age. The seriousness of the Applicant's overall criminal history and the conduct of the person since the offence 1. The Applicant has no other criminal matters and no other adverse allegations into her conduct. 2. The good behaviour bond imposed on the Applicant has expired without incident. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. Dr Nielssen offered the opinion that the likelihood of the Applicant repeating the conduct within the family is "low". In a professional setting he said the likelihood of any similar conduct is "low to negligible". 2. The documents obtained from FaCS note that the Applicant gave an account to the caseworker that was consistent with her evidence to the Local Court and to this Tribunal. She told the caseworker that she "snapped" and that it was inappropriate for her to have done so, and that it did not reflect her usual parenting style. She expressed remorse about what happened, as she also did with Dr Neilssen and to the Tribunal. 3. The Applicant voluntarily undertook to improve her parenting skills by attending classes and the course provider said that her participation in these classes was "excellent". FaCS notes indicate that there is no evidence of the Applicant employing excessive or inappropriate disciplining of her children. FaCS also note that the children's school support this view and describe her as patient and appropriate towards the children (p 67 s58 documents). FaCS notes refer to the Applicant discussing alternative strategies with the caseworker and demonstrated a "wide range of strategies in appropriately responding to her children". 4. FaCS wrote to the Applicant on 31 July 2015 when they closed the file, which stated "I want to take the opportunity to thank you for your positive engagement and demonstrating commitment to the case plan we had created together. You have achieved the goals and shown initiative through active change and seeking support if needed". 5. The Applicant told the Tribunal that she has learned different strategies to deal with her children. In relation to returning to work with children if she was granted a WWCC clearance, the Applicant said she understood that the use of physical discipline on children was not acceptable. 6. The Tribunal is satisfied that the Applicant has insight into her conduct and the impact it would have if it were to be repeated in the family or in a professional setting. She has shown appropriate remorse and regret for her actions. The Applicant has demonstrated that she is protective towards her children and children in general. The Tribunal accepts the Applicant's evidence that the incident involving C2 was an isolated event triggered by unusual circumstances, which the Applicant has voluntarily taken appropriate steps to prevent from occurring in the future. Any information given in or in relation to the Application 1. The Applicant provided references to the Respondent from former employers and supervisors, who are supportive of the Applicant working with children. One of these referees (W1) also provided an Affidavit for these proceedings. W1 works as a Community Facilitator with the NSW Department of Education and has known the Applicant for 7 years. She said that she observed the Applicant both with her children and at the workplace. She says the Applicant is a "warm and responsive" parent. Further in observing her working with children she says she was "skilled, conscientious and talented working with children and displayed a great empathy for the children and families". She says she has never observed the Applicant to be aggressive in any way towards children in her care. 2. W1 said in her Affidavit that the Applicant is "very skilled at dealing with children, especially those who might display challenging behaviours or have special needs". She said "I have never observed the Applicant to be aggressive in any way towards the children in her care. She would use diversion tactics or distraction. She would work out interests to keep children occupied". 3. The Respondent's section 58 documents (at p 224) include a copy of a letter from the Department of Education Employee Performance and Conduct Unit to the Applicant. Following the outcome of Local Court proceedings an investigation was conducted and the Applicant was invited to provide a written response to the investigator. The Applicant provided a response in July 2015. The letter to the Applicant containing the finding of this investigation states: "The finding of guilt for a criminal charge of this nature would constitute misconduct if you were a permanent officer of this Department. It also constitutes reportable conduct and as such must be reported to the NSW Ombudsman and the Office of the Children's Guardian. However, given the circumstances, I do not intend to take any formal action other than issuing you with a formal warning." It is relevant and persuasive that the outcome of the EPAC investigation was that the Applicant would be able return to employment with the Department of Education if she were to obtain a WWCC clearance. 4. The section 58 documents (p 3) include the risk assessment undertaken by an officer employed by the Respondent. The report recommended that the Applicant's WWCC clearance be re-instated. However the Respondent's review panel met in January 2016 and decided to propose a refusal of a WWCC clearance citing the seriousness of the charge, the recentness of the event and that at the time, the Applicant was still subject to a good behaviour bond. 5. Respondent's counsel told the Tribunal that the Respondent's current position is to not oppose or consent to granting the Applicant a WWCC clearance. The Respondent did not seek to challenge W1's evidence or any of the other professional references relied on by the Applicant. Conclusion 1. After carefully considering the factors specified in section 30 (1) of the Act and the evidence in these proceedings, the Tribunal is satisfied that the Applicant does not pose a real and appreciable risk to the safety of children. The incident was an isolated event for which the Applicant has shown remorse. She took steps to prevent such an incident from happening in the future. She has provided evidence in support of her application from former colleagues and from a psychiatric expert, which was not challenged by the Respondent. The Tribunal found the Applicant to be a truthful witness, who accepted responsibility for her conduct. The Applicant demonstrated an understanding of the need to protect children from harm and appreciated the need for the actions taken by the Respondent in relation to her. She fully cooperated with FaCS and the Department of Education in their investigations, and both government agencies were satisfied that no formal action against the Applicant was warranted. 2. Turning to section 30 (1A) of the Act, the Tribunal must first determine whether a reasonable person would allow his or her child to have direct contact with the Applicant in circumstances where she would not be directly supervised by another person while engaged in child related work. The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that section 30 (1A) assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware. 3. The Affidavit of W1 states "I have two grandchildren. I would not hesitate to let the Applicant care for them unsupervised. I base this opinion on my direct observations and interactions with the Applicant". W1 has worked with the Applicant and known her for 7 years and is aware of the circumstances surrounding the incident. She works with children and has been employed with the Department of Education and Communities for about 13 years. The evidence provided by the Applicant's colleagues, the findings of the investigation undertaken by the Department of Education, and the expert evidence provided by Dr Neilssen, lead to the Tribunal being satisfied that a reasonable person would leave a child unsupervised in the Applicant's care. 4. In relation to the public interest test, W1 notes in her Affidavit that "I have worked in the sector for many years. Being able to work with special needs children is a great and valuable skill. Not everyone can do it. It is a great shame that the Applicant is not able to bring her considerable talents to bear in assisting those who most need her help". In considering the public interest test, the Tribunal must do so in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. 5. The concept of "public interest" has been determined on the basis of giving priority to the broader interests of the community over private interests: Smith v Commissioner Police 2014 NSWCATAD 184. Respondent's counsel drew the Tribunal's attention to the case of ZZ v Secretary to the Department of Justice [2013] VSC 267, where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in community affairs, and people with appropriate skills and experience having contact with children. 6. The Tribunal is satisfied that the Applicant does not pose a real and appreciable risk to the safety of children and that a reasonable person would leave a child unsupervised in her care. She has been training to become a teacher and has a desire to work with children who have special needs. W1 said the Applicant has valuable skills and experience working with children especially those with special needs. The Tribunal is therefore satisfied that it is in the public interest to grant the Applicant a WWCC clearance. Orders 1. The Tribunal orders that: 1. The decision of the Children's Guardian to cancel the Applicant's 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: 21 November 2016