Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BWF v Children's Guardian [2016] NSWCATAD 295 Hearing dates: 17 December 2015 Date of orders: 17 December 2015 Decision date: 17 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane ADCJ Principal Member Dr P Foreman General Member Decision: The decision of the Children's Guardian refusing to provide the applicant with a Working with Children Check Clearance is set aside: and The Children's Guardian must issue the applicant with a Working with Children Check Clearance Catchwords: Child Protection – Working with Children – review of decision of Children's Guardian to refuse clearance Legislation Cited: Child Protection (Working with Children) Act 2012; Administrative Divisions Review Act 1997; Child Protection Legislation Amendment Act 2015; Adoption Act 2000; Child Protection (Prohibited Employment) Act, 1998 Cases Cited: Commission For Children and Young People –v- V [2002] NSWSC 949 Texts Cited: Nil Category: Principal judgment Parties: BWF (Applicant) The Children's Guardian (Respondent) Representation: Solicitor: M Koslowski (Applicant) Counsel: M Neville (Respondent) File Number(s): 1510238 Publication restriction: Order 11June 2015:Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, it is prohibited to disclose, publish or broadcast the name, any information which might tend to identify the name, of any person named in these proceedings or in any document filed in the proceedings such as the Applicant , any partner of the Applicant, any child (whether that person is a child now or was a child when the relevant document was created or incident occurred) any victim, any non-expert witness, and any person who has made a risk of harm report to the Department of Family and Community Services or its predecessors. Judgment Introduction 1. The applicant was born on 2 August 1946 and is almost 70 years of age. His defacto wife is 61 years of age. They have lived together for about 34 years. They have both lived their whole lives in the same country town. 2. Previously the applicant married at 20 years of age. The relationship lasted about 9 years and the applicant has 2 sons from the marriage who are now aged 47 and 40 years. The applicant was active in the rearing of those 2 sons. 3. There is 1 child of the applicant and his defacto wife. He was born in about 1983 and is now about 33 years of age. 4. In about 1997 the applicant and his partner agreed to foster a child. They made enquiries of the Department of Community Services ("The Department") and then attended training sessions. 5. In late 1999 the Department placed 3 children with the applicant and his partner. They were 3 children of the same mother who was in gaol. To protect their privacy the children will be referred to as G1, B1 and G2, and similarly with the other children. 6. B1 suffered from drug addiction because his mother had been on a methadone program during his pregnancy. 7. B2 came to live with the family. He had been born 6 weeks premature and weighed only 2 kg. He required considerable medical attention. He was also drug addicted because of his mother's addiction during his pregnancy. 8. G2 suffered from foetal alcohol syndrome and also had a pituitary problem. She too was often taken for medical attention. 9. G3 was placed with the family in about May 2003. She was a bright child and enjoyed good health. 10. G1 became a problem at aged 15 with her spending much time with boys and the Department arranged for her to be placed elsewhere in about 2006. 11. When G3 was about 13 years, she too was much focussed on relating with boys, and formed a sexual relationship with a 25 year old man. The applicant and his partner reported this to the Department and also attended at the home of the man and had a conversation with him and his mother, after which the relationship ceased. But G3 then formed a sexual relationship with a 19 year old man. The applicant and his wife had difficulty in controlling her conduct and on several occasions the police returned her to the home. 12. The behaviour of G3 caused considerable instabilityi n the home. She was also stealing money from the applicant's wallet and incurring expensive telephone charges. 13. The applicant and his wife were in frequent contact with the Department and the Department was considering transferring G3 to another placement. The Department had suggested that she take a contraceptive pill. She was also attending counselling, which it seems was organised by her school. 14. Eventually she was moved to a different placement. 15. The child G2 was a sickly child, small and did not thrive. The medication she took contributed to violent conduct by her towards the other younger children. Eventually the Department moved her to other foster carers. After that move she died at age 12. 16. Since G3 was removed from the home, the applicant and his partner have had the care of B1 and B2. B1 has been living the household since 1999 and B2 since about September 2003. 17. In about 1998 the applicant had obtained a clearance to work with children from the Office of the Children's Guardian. 18. On about 13 May 2009, a person involved with G3 made a mandatory report to the Department alleging mistreatment of G3 by the applicant and his partner. It appears that it was as a result of those complaints and G3's wish to leave the care of the applicant and his partner, that she was moved to another placement. 19. The Department investigated the allegations and interviewed the applicant and his partner and some of the children, and the Department had concluded that some of the allegations were sustained. 20. In September 2013 the Applicant applied to the Respondent for a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012 ("the Act"). In 2014 he received a letter from the respondent informing him that a risk assessment would be required. That risk assessment process was completed and a decision taken to refuse the clearance. The Children's Guardian wrote to the applicant on 13 April 2015 advising of that decision. 21. On 8 May 2015 the Applicant filed his application under section 27 of the Act for review by the Tribunal of that decision. 22. At the time of the hearing, B1 was 17 years of age and in year 12 at high school. His studies at school include music, arts, singing and drama. He performed in school concerts and regional concerts. He was also studying hairdressing at TAFE. 23. At the time of the hearing B2 was 13 years of age. He is a keen and talented rugby league player. The applicant has encouraged and supported him in this activity. During the season he travels to various regions in the Hunter Valley to play rugby league. Until the decision by the Guardian to refuse a clearance, the Applicant drove B2 to his foobtall games. Since the refusal the applicant has been with any of the children only when his partner has also been present. He has been at the home only in the period between 7.30 am and 9.30pm and his partner has been present while he is. He has stayed overnight at the home of his partner's mother. Whenever he has been in a car in the company of any child, his partner has accompanied him. 24. This was the hearing of the Review application. The Evidence 1. The evidence comprises the following: 1. The application; 2. The respondent's letter of 13 April 2015 notifying its decision to the applicant; 3. Affidavit of the applicant sworn 20 August 2015; 4. Affidavit of the applicant's partner sworn 20 August 2015; 5. Tabulated and indexed bundle of 300 pages of documents filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997; 6. 22 page assessment report by Dr Katie Seidler, Forensic Psychologist; 7. Exhibit A1 – letter by the Department of Community Services to the respondent and his partner dated 23 September 2015 confirming continuing authorisation for them to care for the children B1 and B2; 8. Oral evidence of the applicant on 17 December 2015; 9. Oral evidence of the applicant's partner on 17 December 2015; 10. Oral evidence of Dr Seidler on 17 December 2015. Relevant Legislation 1. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 ("the Amendment Act"), which in Schedule 2 set out amendments to the Act, was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because they commenced after the application was made on 8 May 2015 2015). Also the Amendment Act specifically provided that amendments to sections 16(2), 26 and 30 and Schedule 2 of the Act would not apply to enabling applications filed before the commencement of those amendments (see clauses 16,17,19 and 22 of the Amendment Act). 2. Accordingly the relevant parts of the Act applied as if before the Amendment Act amendments and the following discussion proceeds on that basis. 3. Section 4 of the Act provides: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 1. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 5. Section 12 provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer – authorising workers to engage in unpaid child-related work; and b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work. 1. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 2. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". Section 4 defines "conviction" as including a finding that the charge for an offence is proved, even though there is no conviction. 3. The Act defines an "adult" as "a person who is 18 years of age or older". 4. Section 1 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. It is not alleged that the trigger(s) is one of those specified in clause 1 of schedule 2. In its letter of 13 April 2015 advising the Applicant of the refusal the Children's Guardian asserts that the trigger(s) for an assessment falls within "Schedule 1 Clause 1-2 (a) and (b)" of the Act. As to what the "1-2 means, there is no clause 12 of schedule 1. Subclause 1(2) of the Schedule provides: "(2) Proceedings have been commenced against the person of the following offences, whatever the outcome of those proceedings: An offence involving intentional wounding of or causing bodily harm to a child by an adult (other than an offence specified in clause 1 of Schedule 2, Any sexual offence committed against, with or in the presence of a child, other than an offence specified in clause 1 of Schedule 2," 1. There have been no "proceedings", so subclause 1(2) has no application. 2. Clause 2 of schedule 1 describes another group of situations being: "2. Findings of misconduct involving children A person has been the subject of a finding by a reporting body that the person engaged in the following conduct: sexual misconduct committed against , with or in the presence of a child, including grooming a child, any serious physical assault of a child. 1. The Children's Guardian particularised the trigger matters in its letter of 24 September 2014 as follows: "sexual misconduct / grooming" 1. There is no evidence of any "serious physical assault". 2. It therefore appears that the Children's Guardian asserts that the trigger matter for an assessment is alleged to be misconduct that falls under para 2(a) of Schedule 1 being conduct the subject of a finding by a reporting body that the Applicant committed sexual misconduct against, with or in the presence of a child, including grooming of a child. 3. Subsection35 (4) of the Act defines "reporting body" as including any "NSW government agency" and the latter expression is defined in section 5 of the Act as including "any public or local authority". The Tribunal is satisfied that the Department is a public authority and therefore a reporting body under the Act. 4. Under Section 16 the Children's Guardian may request further information from an applicant for a clearance related to an offence or other matter related to the application for clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request. 5. The Children's guardian requested the applicant to provide further information, which the Applicant provided. 6. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children's Guardian may apply to this Tribunal for a review of the decision of the Children's Guardian. Subsection 27(4) of the Act provides: "An applicant must fully disclose to the Tribunal any matters relevant to the application." 7. Subsection 30(1) of the Act applies to reviews. It provides: The Tribunal must consider the following in determining an application under this Part: 1. the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application, 11. any other matters that the Commission considers necessary. 1. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides: Determination of administrative review by Tribunal 1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law. 1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. Seriousness of the matters that caused the refusal of the clearance Particular 1 1. It appears that the matters that the respondent took into account are as follows: 1. During G3's placement with him engaged in a pattern of misconduct that constituted sexual misconduct. This comprised "inappropriate touching of [G3's] buttocks and inappropriate comments within a sexual content". 2. As admitted by the applicant, he was in the habit from when G3 was 10 years of age of squeezing her on the bottom when she passed him in the home. The squeezing lasted longer than 3 seconds. She said it was not punishment and the frequency was weekly. 3. After she started wearing a brassiere, there was an occasion when she was trying on brassieres in a Department store. After he handed her one, he said, "Now can I help you fit your bra?" 4. Also over a considerable period it was his habit that when she was in the bathroom showering, if he was passing the bathroom door he would say through the closed door, "would you like me to wash your back?" 1. It was recorded "the applicant stated he couldn't see anything wrong with having a joke with G3 in relation to such topics. The applicant could not explain why he engaged in this behaviour over such a long period of time or why G3 [might] feel disgusted, upset or repelled by it. The applicant said "it was all good fun and a bit of a joke". 2. His partner admitted to being aware of the behaviour. 3. Clearly the behaviour was inappropriate and caused G3 considerable embarrassment and discomfort. The squeezing of her buttocks amounted to indecent assault. The fact that he was her foster parent and carer no doubt caused her insecurity. The conduct involved behaviour by him to her that she did not consent to and strongly disliked. It also involved him asserting familiarity to her that she detested. Particular 2 1. Between January 2008 and July 2009, the applicant made repeated offers and threats of physical punishment of the boys involving the use of an implement, a homemade strap. B2 said he was hit on the right elbow and the right knee and received a bruise to the right knee which he showed to the case worker. 2. B2 said that he has been hit with the strap on the arm and leg, but did not sustain any marks or bruising. Particular 3 1. In the period from January 2008 to July 2009, the applicant engaged in a pattern of physical discipline that involved hitting the boys with a strap. B2 said that he had been hit by the strap on several occasions. B1 said that he had witnessed B2 being hit by the strap to his leg earlier in 2009. 2. The applicant admitted that on at least 1 occasion a few weeks prior to the interview he had struck B2 on the buttocks with the strap. G3 disclosed that she had seen the applicant strike B2 with the strap. Particular 4 1. On an occasion between 1 January 2008 and 8 July 2009, the applicant threw a plastic bucket at B1 which resulted in B1 being struck to the upper body and neck area. The applicant admitted the conduct, except that he said it was a plastic water bottle, not a bucket. 2. The conduct towards G3, although causing her considerable discomfort and insecurity, was not at the serious end of the range of possible sexual conduct and conversation. It certainly contributed to her unhappiness in the home and may have contributed to her sexual involvement with men and the difficulties the Applicant and his wife had trying to manage her behaviour. 3. The Applicant's assaults on the boys with a belt and threats of such assaults, were also not at the serious end of the range of such behaviour, although they probably damaged his relationship with each boy and involved a serious risk that it could contribute to the boys themselves learning to resort to forms of assault, or threats of such, as a way of responding to relationship difficulties. 4. The Tribunal also takes into account that these incidents occurred in the period when the relationship between G3 and the applicant and his partner was breaking down and G3 wanted to leave the family. There was considerable stress being experienced by the Applicant, his partner and the boys and the behaviour of the boys had deteriorated. Period of time since those matters occurred and the conduct of the person since they occurred 1. At the time of the hearing, the most recent of the complaints had occurred about 6 ½ years before. There is no evidence of any further such conduct in that period since about 8 July 2009. Age of the person at the time the matter occurred 1. The applicant was about 53 years of age at the time of the trigger matters alleged. The age of each victim at the time they occurred, and any matters relating to the vulnerability of the victim 1. The victims were vulnerable insofar as they were foster children in the care of the applicant and his partner. At the time of the trigger matters involving the boys, B1 was about 10 years of age and B2 was about 6 years of age. The matters involving G3 occurred mainly when she was about 11 – 13 years of age. Difference in age between the victim and the person and the relationship between the victim and the person 1. The relationship was that the applicant was the foster father of the boys. The difference in age between him and B1 was about 43 years and the difference in age between him and B2 was about 47 years. The difference between him and G3 was about 42 years and he was her foster father. Whether the person knew if the victim was a child 1. The applicant knew that each of the 3 children were children The person's age 1. The applicant at the time of the hearing was 69 years of age. Seriousness of the person's total criminal record, and the conduct of the person since the matters occurred 1. The applicant does not have any criminal record. There is no evidence of criminal charges ever being laid against him. 2. There is also no allegation of any criminal or improper conduct towards any person(s) since the matters occurred. 3. The Applicant and his partner have continued their care of the 2 boys and it appears boys are generally happy, well adjusted and settled with the applicant and his partner. 4. Dr Seidler reported from her interview of the Applicant in September 2015 that the Applicant said that it is inappropriate for him to get angry with his foster children and that, rather, he should talk with them about any concerns he may have about their behaviour. 5. On 23 September 2015 the Department notified the Applicant and his partner that following a review by the Department, their authorisation as specific authorised long term carers for B1 and B2 had been continued. That review occurred more than 6 years after the misconduct of the Applicant relied upon by the children's Guardian in these proceedings. That decision is expressed to be conditional upon the Applicant being successful in this review. The likelihood of any repetition by the person of the conduct and the impact on children of any such repetition 1. Neither party in these proceedings has an onus of proof such as that imposed by subsection 28(7) of the Act on an applicant seeking an enabling order who has been found to have committed a disqualifying offence. Logically it is impossible to prove any adult does not pose some risk to the safety of children. 2. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'. 1. Dr Seidler is a Forensic Psychologist, with considerable experience in the areas of inter-personal crime, particularly sexually offending behaviour. She prepared a 22 page report providing detailed reasons in respect of her conclusions. She undertook intelligence testing, psychometric testing and personality assessment of the applicant. She interviewed him for more than 2 hours. She had available to her much of the documentation in the proceedings relied upon by the Children's Guardian. 2. She used risk assessment tools being Hare Psychopathy Checklist (revised), the Risk for Sexual Violence Protocol, and the Historical, Clinical Risk Instrument – Version 3 (re risk for violence). 3. Her conclusion was that the applicant represents a low risk of any future sexually abusive behaviour and also a low risk in respect to any violent abusive behaviour. Her opinion is that any risk of the applicant would be well managed without notable intervention or management. 4. Dr Seidler concluded: 1. "[BWF's] risk, which has been assessed as Low, is seemingly well managed and I do not consider there are any strategies or interventions that need to be in place to protect children and young people from [BWF] in the future. He is not a sophisticated carer, but [BWF] impresses as capable at providing adequate care without exposing children and young people to significant and ongoing risk from sexual, violent or otherwise abusive behaviours". 1. There was no expert opinion to contradict conclusions Dr Seidler. Cross examination of Dr Seidler did not result in her changing or qualifying her opinion in that regard. Any information given by the applicant in or in relation to the application 1. When the applicant separated from his first wife, their eldest son was about 24 years of age and then lived with the applicant and the younger son was about 17 years of age and he lived with his mother. However from Dr Seidler's report the Applicant did not participate in the care of his younger son after the separation and has no relationship with him now. He still has a very close relationship with the elder son. He also has a positive relationship, and regular contact, with the son of him and his partner, who is now 32 years of age. Any other matters that the Children's Guardian considers necessary 1. For the Children's Guardian concern was expressed that the applicant "has not demonstrated insight into the sexually inappropriate conduct. Whilst he has accepted that he made the comments complained of…. he does not accept – and has not at any time accepted – that there was anything wrong with the comments". 2. These matters were taken into account by Dr Seidler in arriving at her conclusions but she did not consider them to be grounds for displacing her opinion. She also took into account his statement to her in interview that he had no sexual intent in his conduct towards G3 and his statement that he denies squeezing her on the buttocks and may have only patted her on the bottom but only on an accidental basis as he moved past her in the home. From the documents provided to her, Dr Seidler had read the Department's investigation documents and was aware of the admissions the Applicant made in 2009 and the inconsistencies with some denials he told her in interview. Conclusions 1. The matters in favour of the application being granted are as follows: 1. The opinions of Dr Seidler; 2. The fact that the matters which gave rise to the assessment should be regarded as of limited seriousness; 3. The absence of any criminal charge or conviction for any offence; 4. The limited matters that have arisen in respect to the applicant's care of children, including 3 natural children and 5 foster children; and 5. The particularly difficult circumstances the applicant and his partner have faced meeting the needs and demands of foster children over the 16 years before the hearing. 1. These matters outweigh any material suggesting there might be a real and appreciable risk posed by the applicant to the safety of children. The conclusion is that the Applicant poses no real or appreciable risk to the safety of children. 2. The Tribunal therefore concluded that the decision of the Children's Guardian to refuse a check clearance was wrong and should be set aside and an order should be made for the issue of a check clearance to the applicant. Orders 1. Accordingly, the orders were: 1. The decision of the Children's Guardian of 18 June 2015 refusing to provide the applicant with a Working With Children's Check Clearance is set aside; and 2. The Children's Guardian must issue the applicant with 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 Amendments 24 January 2017 - Corrected Order & Decision date 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: 24 January 2017