Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CXT v Children's Guardian [2017] NSWCATAD 264 Hearing dates: 23 June 2017 Date of orders: 31 August 2017 Decision date: 31 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member B Field, General Member Decision: The decision of the Respondent to cancel CXT's Working with Children Check clearance is affirmed Catchwords: ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mental Health (Forensic Provisions) Act 1998 Cases Cited: BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Category: Principal judgment Parties: CXT (Applicant) Children's Guardian (Respondent) Representation: Counsel: Mr Karp (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2017/00014779 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 1. Introduction 2. The Applicant ("CXT") was granted a Working with Children Check (WWCC) clearance in May 2014. It was cancelled by the Children's Guardian (the Respondent) in March 2016 following a risk assessment required under the Child Protection (Working with Children) Act (2012) (the Act), which resulted in a finding that CXT posed a risk to the safety of children. The risk assessment was triggered by a series of domestic incidents (the domestic incidents) involving CXT, whose behaviour was said to cause certain members of her family to fear for their safety. CXT seeks a review of the Respondent's decision to cancel her WWCC clearance. 3. At the time of the domestic incidents CXT was experiencing episodes of deteriorating mental health triggered by stressors arising from problematic family relationships. CXT was also working as a school teacher in challenging situations with limited experience. During some of the domestic incidents CXT threatened to harm herself and on some occasions did cause herself actual harm as well as damage to property in the family home. During this period CXT was treated by mental health professionals as an inpatient and in the community. 4. CXT's unpredictable behaviour in response to particular stressors was at times extreme and reasonably elicited serious concerns for her safety. CXT has had no contact with the Police since late 2015, and not had an admission to hospital since early 2016. CXT said that she now receives support from a church group and no longer lives in the family home. There was no current medical or psychological evidence presented to the Tribunal which provides an account of the extent to which CXT is currently able to deal with situations of stress since the domestic incidents, particularly situations that could arise in a workplace with children. The Tribunal was concerned that if CXT were to behave in the presence of children in similar ways to the ways which were evident throughout 2015, it would pose an unacceptable risk to their safety. This led the Tribunal to conclude that CXT poses a real and appreciable risk to the safety of children. 5. The correct decision is to affirm the Respondent's decision to cancel CXT's WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63. The material before the Tribunal 1. The Tribunal was provided with the following material: 1. Application received from the Applicant on 16 January 2017. 2. Section 58 documents filed by the Respondent received on 6 March 2017, 6 April 2017, 1 June 2017, and 16 June 2017. 3. Submissions filed on behalf of the Respondent received 9 June 2017 and 12 July 2017. 4. Letter to the Crown Solicitor dated 10 June 2016 from CB, Registered Psychologist. 5. Letter from JH, Headmaster dated 16 June 2017. 6. Letter from AJ, Lead Pastor received 8 July 2017 7. Letter from Applicant to the Tribunal filed on 5 July 2017 8. Character reference dated 18 June 2017 from Dr JJ, Dentist 1. A hearing was held in Sydney. CXT was present and gave oral evidence at the hearing. Events that led to the risk assessment conducted by the Children's Guardian 1. CXT migrated to Australia from Iraq as a young girl with her family. She initially had a difficult time at school due to a lack of English but quickly adjusted and did well in high school. She attained tertiary qualifications including teaching. She worked as a casual teacher from about 2008 to early 2016. CXT acknowledged reports of her leaving classes unattended or unsupervised around the time of the domestic incidents, which she explained as being in part because she was inexperienced, and a lack of communication or understanding of what was required of her. Whilst this might have been the case, it occurred on more than one occasion and this behaviour is concerning with respect to a person given the responsibility of a classroom. 2. CXT was living in the family home with her parents and some of her siblings when the domestic incidents had occurred. It is evident members of CXT's family feared for their safety and at times also feared for CXT's safety, because of threats to harm herself. Police were called to intervene and on occasions it was necessary to convey CXT to hospital for psychiatric assessment. 3. One such occasion was in January 2015 in the backyard of the family home. CXT wrapped a garden hose around her neck and tried to place a ladder underneath her. CXT said she was "very down" but she only wanted to give the impression of wanting to kill herself and was not intending to take her life. CXT said she never intended to take her life despite there being records of a number of incidents when she had threatened to do so. CXT agreed that others may have perceived her behaviour at times to be threatening to take her own life. She did not however appreciate the seriousness of her actions and the extent to which they were cause for concern. 4. CXT denied certain events reported to have taken place had occurred such as an incident in April 2015, when Police said they took CXT to hospital after receiving a call that CXT was in "a lot of pain" and had "cut her wrists". CXT denied she had cut her wrists. CXT argued there is no evidence that she had cut her wrists. When it was put to her that perhaps she had told the caller she had cut her wrists in order to raise an alarm or to elicit sympathy or concern, CXT denied this was the case. She suggested that she was possibly being "difficult" and was in a lot of pain, and that this might have led the caller to assume she cut her wrists. This was not an isolated incident and there are a number other examples of CXT's behavior raising similar serious concerns for her own safety. 5. Whether or not CXT did actually cut her wrists on this occasion, it is evident that CXT's behavior did at times generate serious concerns for her safety and Police determined it necessary to intervene and take her to hospital. Another such example occurred in April 2015 when the Police were called to the family home because CXT was threatening to hang herself with the cord of her bathrobe. Police noted red marks around her neck. CXT said she had been arguing with her parents her mother told her to "go kill yourself so I did it". Another example is reference in hospital notes to CXT having made cuts to the skin around her stomach with a knife. Again CXT sought to minimize this saying it was "probably scratching", "not serious" and not intended to "hurt herself". 6. In April 2015, an AVO was made against CXT identifying her sister as in need of protection. In May 2015, the Police were called to the family home because her mother feared for her safety as a result of CXT throwing furniture around a room including a "scanner". CXT said she did not understand why her mother felt the need to call the Police. She said the scanner was hers and she was not aiming it at anyone. She was charged with breaching the AVO, and with stalking and intimidating. She failed to appear in Court and was then charged with breach of the Bail Act. CXT said she did not attend because she was not aware an AVO had been made against her. It is significant that these charges were dealt with under s 32 (3) (a) of the Mental Health (Forensic Provisions) Act 1998 (NSW) and discharged subject to compliance with a mental health treatment plan. 7. In July 2015, Police were again called to the family home because CXT was threatening to end her life. In August 2015, Police were called in response to CXT throwing things around the house. She was taken to hospital and there are several other incidents and admissions to hospital in August and September 2015, including an incident when CXT smashed a wine bottle over a kitchen bench. In October 2015, Police found CXT sitting "on the grass in the middle of the M7 Motorway next to the guard rail" (taken from the Police report). CXT said it was not the middle of the road, but between the cycle way and the road but said "it was silly of me". 8. Another AVO was made against CXT in January 2016 citing other family members in need of protection and excluding CXT from the family home. This order remains valid to January 2018. 9. Police records refer to CXT not taking medication as prescribed. CXT told the Tribunal she would be given medication following discharge from hospital but when she felt better, she would stop taking them. Records indicate some level of engagement with mental health professionals during this period, but it is evident that it was sporadic and has not been maintained to date. 10. CXT said that she had not been given an opportunity to respond to the Respondent's concerns before her WWCC clearance was cancelled. CXT has had the opportunity to present evidence to the Tribunal to support her contention that she does not pose a risk to the safety of children. This is considered in detail below. Does CXT pose an unacceptable risk to the safety of children? 1. CXT argued that the concerns about her mental health and behaviour during the period in which the domestic incidents occurred are overstated. She disputed some of the details recorded in relation to certain events. CXT agreed she had been "depressed" and reacted "badly" at times, including destructive behaviour towards herself, family members and causing damage to property but had never directed this to anyone in particular and had never involved children. 2. CXT asked the Tribunal to consider that the triggers which led to the deterioration of her mental health and subsequent problematic behaviour, were a combination of living in the family home when she where she was having intense conflict with her parents, and the stress arising from teaching with limited work experience in challenging situations. She said her relationship with her parents has improved and she longer lives in the family home. She believes she is now better able to deal with such stressors. The Tribunal has regard to CXT's genuine belief that this is the case. Balanced against this is the extreme nature of the behaviour in response to these stressors, which was evident in 2015 and therefore relatively recently, and the lack of evidence in relation to CXT's current capacity to deal with such stressors. 3. Section 30 (1) of the Act provides the factors that the Tribunal must consider in assessing whether a person poses a risk to the safety of children: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. The seriousness of the offences 1. The domestic incidents that led to the Respondent to conduct a risk assessment are characterised as domestic violence offences, which are in themselves serious. The Tribunal considers the domestic incidents to be in the low range of domestic violence offences. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The domestic incidents occurred in 2015. An AVO was made in January 2016 and is in force for 2 years. CXT has not come to Police attention since then. The age of the person at the time the offences or matters occurred (and current age) 1. CXT was about 32 years of age at the time of the domestic incidents and is now 34 years of age. 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 1. The victims recorded in the AVOs as in need of protection were adult members of her family, being her mother and sister. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. CXT does not have a criminal record as charges were dealt with under section 32 of the Mental Health (Forensic Provisions) Act. However during the period between 2014 and the making of the AVO in January 2016, her behaviour led to multiple calls to the Police for assistance. These calls were in response to threats to harm herself, throwing heavy objects around the home and damaging property, and members of her family fearing for their safety. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition 1. CXT told the Tribunal that the relationship with her parents has improved. She no longer lives in the family home but has contact with them. She currently draws support from a church group. 2. The reports provided by Justice Health & Forensic Mental Health Network from the State-wide Community & Court Liaison Service document these concerns. The first report written in May 2015 is based on a mental health assessment of CXT and sources other information including a letter from a local doctor, a Mental Health Care Plan dated January 2012, medical records from the local health district and a discussion with a consultant forensic psychiatrist. This reports a clinical presentation of a woman who is "anxious and stressed with a background of depression and anxiety, psychosocial and psychological stressors, interpersonal difficulties, and personality vulnerabilities". The last of these reports is dated 30 November 2015, which states that "her continued deterioration and disturbance in mood, lack of insight and impaired judgment, and being homeless, it is unlikely she will be able to comply with treatment in the community". It concludes that CXT presents with symptoms of a mental illness as defined by the Mental Health Act (NSW) 2007. In light of such evidence CXT showed limited insight into the problematic aspects of her behavior and the deterioration of her mental health during this period. 3. CXT was assessed by a clinical psychologist (MW) in June 2016 and in a letter prepared for CXT's referring GP it states that CXT presented with "significant anxiety and depressive symptoms in the context of having significant difficulties with her family and employment difficulties". CXT said she discussed anger management issues with her psychologist and developed alternative strategies to deal with such issues. CXT said she has grown as a person and learned from her mistakes. When asked about her current mental health, CXT responded saying it depends on how it is defined. She said she has felt "helpless and depressed", with "low energy" especially since she has not been able to work. She said she only saw MW "a couple of times in 2016" and the notes provided by MW reflect her failing to attend appointments. She said that this was because she had moved from the area and was busy. She agreed it would be beneficial to see MW though she says her mental health has improved and is receiving support from her church network in the community. 4. When asked what she would do now if her mental health deteriorated as it had done during 2015, she said that she has learned "to take things slowly". She said she had been very lonely in the past but does not feel that now. When asked about possible future attempts to harm herself she said that she was not "that type of person". When asked about the pressures of a school environment as a teacher and whether particular stressors might lead to her becoming depressed, she said it may happen as it could for any teacher. The Tribunal considered these responses to also display a lack of appreciation of the seriousness of concerns about her behavior and responses to stress as evident in 2015, and add weight to the likelihood of such behavior recurring in the future. 5. There is insufficient evidence to satisfy the Tribunal of CXT's current capacity to respond to stressors, and whether she is able to deal with potentially stressful situations that could occur in a workplace with children, such as in the role of working as a teacher. Whilst the domestic incidents did not directly impact on children, if CXT were to react to stress in similar ways in the presence of children, such as in a classroom, it would place them at significant risk. Any information given in, or in relation to, the Application 1. CXT was given the opportunity to present further evidence following the Hearing. The material provided by CXT suggests that she wants to resume teaching with genuinely good intentions. She said that "I admit that I sometimes behaved in an immature and inconsiderate manner which include making a mess, shouting back to others and breaking some material things around the house and acknowledge that I should have handled the stressful situations a lot better". She said "I have been seeking responsibility and accountability towards the damage and mess I have caused and acknowledge how it worsened the situation. I have learned to draw boundaries for a happier and healthier family dynamic and relationship which we now maintain". In relation to her current capacity to respond to stressful situations she said "I have also taken time to seek professional opinions. I also do considerable reading and becoming part of good will organisations". 2. CXT notes that she is taking part in a "government assisted mental health plan in order to continue increasing my resilience and emotional health". This weighs in CXT's favour. CXT also provided a personal reference (unsigned) from a "friend and fellow church mate" who has known CXT for about a year and speaks positively about her character. CXT also provided other supportive references from recent employers and from the Pastor of her church. However this material does not detail CXT's current capacity to respond to stress or the treatment or therapy she is receiving to prevent or identify similar problems arising in the future. Conclusion and orders 1. In light of the recent proximity of the domestic incidents, together with the extreme nature of CXT's behaviour, the Tribunal cannot be satisfied on the available evidence that the behaviours that caused her family to fear for their safety, and the serious concerns about her own safety, will not recur in situations of stress in the presence of children. The Tribunal has found that CXT poses a "real and appreciable" risk to the safety of children, one that is greater than the risk posed ordinarily by any adult (BKE v Office of Children's Guardian & Anor [2015] NSWSC 523). 2. As the Tribunal has determined that CXT poses an unacceptable risk to the safety of children, it is not necessary to consider the reasonable person and public interest test. 3. The Tribunal orders that: 1. The decision of the Respondent to cancel CXT's Working with Children Check clearance is affirmed. ******** 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: 31 August 2017