Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DKK v Office of the Children's Guardian [2018] NSWCATAD 294 Hearing dates: 20 November 2018 Date of orders: 20 November 2018 Decision date: 19 December 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Prof P Foreman, General Member Decision: (1) The decision of the Children's Guardian dated 1 March 2018 to cancel a Working With Children Check clearance is set aside; (2) In substitution for this decision, the following decision is made: the respondent is to grant the applicant a Working With Children Check clearance authorising the applicant to engage in paid and unpaid child-related work. Catchwords: CHILD protection – Working with children – Whether any real and appreciable risk – Charges of assault dismissed at hearing – AVO granted – Reliability of complainant's evidence - No positive finding – Whether no hesitation in dismissing the charges as groundless - No lingering doubt or suspicion Legislation Cited: Child Protection (Working with Children) Act 2012 Cases Cited: Children's Guardian v CKF [2017] NSWCS 893 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Category: Principal judgment Parties: DKK (Applicant) Office of Children's Guardian (Respondent) Representation: Counsel: Ms L Andelman (Applicant) Ms V Hartstein (Respondent) Solicitors: Legal Aid Commission of NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/0099582 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons. REASONS FOR DECISION Summary 1. The applicant, a 29-year-old father of a two-year-old daughter, requires a Working With Children Check clearance to enable him to work as a personal trainer. His previously held Working With Children Check clearance was cancelled because of allegations that he had assaulted his then wife and infant daughter in 2016. 2. The allegations were that: * when his wife had been experiencing breastfeeding difficulties, he had grabbed his wife's breast and the child's neck, pushing the two together to make the child feed; * he had roughly thrown the child into her bassinet; * he had pushed his wife with an open hand and punched her to the side of her head; and * he had threatened to have their infant daughter circumcised. 1. Two counts of assault against his wife and one count of assault against his infant daughter were dismissed in the Local Court. Despite the dismissal of these charges, a twelve-month apprehended violence order was made against the applicant which expired in August this year. 2. The applicant is now seeking a review of the decision by the Children's Guardian to cancel his Working With Children Check clearance. At the hearing held by this tribunal to determine this application, an interpreter was present to assist the applicant who, in accordance with the non-publication order made by the tribunal will be referred to as DKK. Issues 1. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children. 2. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider: * whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and * whether it is in the public interest to grant the applicant a Working With Children Check clearance. Does the applicant pose a real and appreciable risk to the safety of children? 1. To engage in child-related work in NSW, a person must hold a Working With Children Check clearance. The Office of the Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a prohibited person. The Children's Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children's Guardian must issue him or her with a Working With Children Check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012) 2. The Children's Guardian conducted a risk assessment of the applicant because he had been charged with the assault of his then wife and infant daughter. As a result of that assessment, the Children's Guardian found the applicant to pose a real and appreciable risk to the safety of children and cancelled his Working With Children Check clearance. In these proceedings, however, the Children's Guardian is not opposing the applicant's request for a clearance. Did the applicant assault his wife and/or daughter? 1. To determine whether the applicant poses a real and appreciable risk to the safety of children, we need to consider the evidence before us in relation to the allegations that he assaulted his former wife and their infant daughter. 2. During the ensuing Local Court proceedings, the applicant's then wife claimed that on the evening of 18 August 2016, she and the applicant had been at home with their newborn baby and with one of the wife's relatives. The wife claimed to have been trying to breastfeed when the applicant grabbed her breast in one hand, the baby's neck in the other then pulled his wife's breast over to the baby's mouth. The wife's relative allegedly intervened to stop the applicant. 3. In his evidence during the court proceedings, the applicant denied having assaulted his wife and child. According to the applicant, he had not even been home that evening. Rather, he had left for work that morning, had come home at about 3pm, had left the house again at 6pm to meet a friend before returning home at around 10pm to his then wife and child. On the applicant's evidence, the wife's relative had not been present. 4. The friend he claimed to have met with that evening gave evidence in support of the applicant. She confirmed that on 18 August 2016, she had met the applicant in a coffee shop at around 6:30pm, had gone grocery shopping with him afterwards and had left him at around 10:30pm. She confirmed that at 11:30pm that evening the applicant had sent her a text message to thank her for the evening. Copies of text messages confirming her evidence were tendered in court and are before this tribunal. 5. The applicant's former wife claimed that on 20 August 2016, she and the applicant had been in bed with the baby when they had an argument about money. According to his former wife, the applicant got up, threw the baby into the bassinet, then pushed his former wife twice with an open palm and punched her once, each time on the right side of her face. 6. During the court proceedings, the applicant's former wife was unable to say which hand the applicant had used to punch her and to push her. She agreed that the applicant had threatened to leave her that day. 7. The applicant gave evidence that when he told his former wife that he wished to leave the marriage, she had threatened to have his - then temporary - visa cancelled. 8. When the applicant continued to say that he wouldn't stay with her he told the court that his former wife 'started to slap her face and bang on the floor with her feet.' He denied having thrown his daughter into her bassinet or having punched or pushed his wife. Instead his evidence was that he had lain the child in her bassinet, left the room and telephoned a friend to seek his assistance. 9. This friend, who was in fact a family friend of the applicant's former wife, gave evidence to the Local Court in support of the applicant. He told the court that following a call from the applicant for help, he had driven to the applicant's apartment where he found the applicant's former wife screaming, hitting herself and threatening to have the applicant deported from Australia. At no time did she tell the family friend that the applicant had assaulted her. It was the evidence of the family friend that the applicant's father-in-law had also witnessed his daughter's behaviour and that he himself had also witnessed the applicant's former wife hitting herself on a later occasion. 10. In dismissing the charges against the applicant, the magistrate found that * the applicant's former wife had conceded that she had slapped herself on the face on 20 August 2016 and had not complained to the family friend that the applicant had pushed or punched her, despite admitting that she herself had hit the applicant. * the family friend who gave evidence in relation to the events of 20 August was an independent witness, whose evidence was credible. * the former wife's evidence was unreliable in relation to the events of 20 August and the unreliability of this evidence could be taken into account in assessing what she said happened on 18 August; * the applicant's alibi evidence was corroborated by his friend who gave evidence that the applicant was out of the home on 20 August between 6pm or 6:30pm and at least 10pm that night. Text messages between the applicant and the friend discussing their arrangements to meet for coffee and a thank you text from the applicant at 11:24pm were all consistent with the witness and the applicant having met that evening. 1. Despite dismissing the charges and despite the evidence of the applicant that he had not been at home at the time of the alleged assault on 18 August, the magistrate was satisfied on the balance of probabilities that there had been a physical altercation between the applicant and his then wife on 20 August, such that an apprehended violence order should be made against the applicant for a period of 12 months. It is not disputed that an earlier application for an apprehended violence order against the applicant had been dismissed with a costs order being made against the police. 2. In a statement prepared for these proceedings and in his oral evidence before us, the applicant confirmed his evidence to the Local Court and denied that he had ever physically assaulted his former wife or daughter or been physically aggressive towards them. 3. He also confirmed that his former wife had threatened to send him back to [his country of origin] if he did not stay with her and that he had been warned his wife had been planning to make false allegations of violence against him in order to have him deported. At this time, the applicant had a temporary visa to remain in Australia and had applied for permanent residence on the basis of his marriage to his former wife, who had sponsored his application. 4. The applicant, who has since been granted permanent residency, provided character references in support of his application before us. 5. Also contained on file is a statement to the Department of Immigration by the family friend who gave evidence at the Local Court proceedings. The statement post-dates the court proceedings and details: * the erratic behaviour exhibited by the applicant's former wife on 20 August 2016 and 28 August 2016; * his recommendation to her father that she be taken back to the family home for her own safety and that of the baby; and * admissions by the former wife that she had hit the applicant and broken his mobile phone in an effort to try to stop the applicant from leaving her. 1. The family friend was not required for cross-examination at these proceedings. 2. Further NSW Police records were obtained by the Children's Guardian on 2 May 2018 in relation to the allegations by the applicant's former wife. An event record created on 5 October 2016 refers to a conversation held that day between the documenting police officer and the former wife (who is referred to as the informant): While speaking to the [informant] police gathered that she wanted to get an AVO to help support her so she can go to the Family Law court in order to gain full legal custody of the child..Police have asked [her]..why she waited so long to report the incident. She stated that recent financial issues regarding communal loans and funds have pushed her to report the matter. She appeared more concerned about the financial issue as opposed to actually being scared of the defendant. 1. In light of all the evidence before us, we agree with the submission by counsel for the Children's Guardian that there is considerable doubt as to whether the applicant ever assaulted his former wife or daughter and that we could not make a positive finding this occurred. 2. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Justice Harrison provided the following guidance to the Tribunal: * The Tribunal should first consider whether (a)'positive findings' can be made as to any alleged act(s) of wrongdoing on the balance of probabilities; or (b) whether the Tribunal has 'no hesitation in rejecting the allegation as groundless.' * If no 'positive finding' can be made, unless the Tribunal can determine that the allegation is 'groundless', the Tribunal must consider the question of risk: whether on the evidence there is a risk of harm occurring (e.g. sexual abuse, etc.). * even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance. 1. We note, however, that in Children's Guardian v CKF [2017] NSWCS 893, Davies J found there to be no basis for any conclusion that an open finding or 'lingering doubt or suspicion' counts against the defendant. According to Davies J, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children. 2. For the reasons given below, our decision in this matter does not, however, require us to resolve any difference between these approaches. Can we have no hesitation in dismissing the charges as groundless or does a lingering doubt or suspicion remain? 1. Given that the magistrate was satisfied on the balance of probabilities that there had been a physical altercation between the applicant and his former wife on 20 August 2016, such that an apprehended violence order should be made against the applicant for a period of 12 months, we are not prepared to dismiss the charges laid against the applicant as groundless. 2. In light of all the evidence before us, however, we do not have a lingering doubt or suspicion that the assaults took place. 3. In making this finding, we have given weight to the transcript of the Local Court hearing and to the dismissal of the charges. We have also given weight to: * the delay by the applicant's former wife in making the complaints to the police; * her statement to the police that she was seeking an apprehended violence order to gain full custody of the couple's daughter; and * to the concern by the police that she seemed more concerned about the financial issues between the parties rather than being in fear of the applicant. 1. Because of the additional material before us that was not available to the magistrate (either because it is new material or because, unlike the magistrate, we are not bound by the rules of evidence), we have given less weight to the magistrate's finding that the evidence warranted an apprehended violence order being made against the applicant. 2. We have given weight to the further statements by the family friend of the applicant's former wife who also gave evidence in the Local Court proceedings. We accept the character reference he provided for the applicant which describes him in the following way: 'Throughout all his hard times he has remained the same. He is calm. I have never seen him be violent or being physical with anyone.' 3. We also give weight to the fact that the apprehended violence against the applicant has now expired and there is no evidence before us of any breach of this order. We accept that the applicant has continued to have supervised access to his daughter, that the reports of his interaction with her from the supervising body are positive and that he has successfully completed parenting courses. Did the applicant threaten to have his newborn daughter circumcised? 1. The applicant had always denied and continued to deny the allegation made by his former wife that he threatened to have their infant daughter circumcised. 2. In his evidence in the Local Court, the applicant denied suggesting that their infant daughter should be circumcised, noting that female circumcision is illegal in his country of birth and that his then three-year-old sister had not been circumcised. 3. In a statement made for these proceedings, the applicant stated that he had never planned or threatened to circumcise his daughter and had never wanted to have it done. He stated that: I understand that female genital mutilation takes place in some parts…but before these allegations were made...I did not know much about it. It is not something that was done to the female members of my family. My mother and sister are not circumcised. As far as I am aware none of my extended family members are circumcised. [I]t is not something that was ever discussed by my friends or family…I never had a discussion with [my former wife] about circumcising [our daughter]. I do not know anyone in Australia or [his country of birth] who would do this procedure. 1. On the evidence before us, we are not satisfied that the applicant ever threatened to circumcise his daughter. Real and appreciable risk Section 30(1) matters In determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings. The seriousness of the offences that caused a risk assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a)) 1. The matter that caused a risk assessment to be undertaken and the cancellation of the clearance was the fact that in 2016, the applicant had been charged with two counts of common assault against his former wife and one count of common assault against his infant daughter. Although the allegations were serious, the applicant has always denied them, and all three charges were dismissed in the Local Court. The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b)) 1. The assaults were alleged to have taken place in 2016. 2. Since the dismissal of the charges, there have been no breaches of the apprehended violence order made against the applicant, which has now expired. The applicant has weekly contact with his daughter and reports of their interaction are positive. It is not disputed that the contact is under supervision by request of the applicant to avoid any false allegations being made against him by his former wife. Following a report prepared for the ongoing Family Law proceedings that allegedly found his former wife cannot control her nervousness and temper in front of their daughter, the applicant is now requesting that his daughter live with him and spend time with her mother. This application will be heard next year. 3. Formerly on a temporary visa, the applicant is now a permanent resident of Australia. The age of the person at the time the matters occurred (s30(1)(c)) 1. When he was charged with the offences, the applicant was 27 years old. 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 (s30(1)(d)) 1. The applicant's wife was 38 years old when the applicant was alleged to have assaulted her. His daughter was less than a month old. The child was vulnerable due to her age; the wife was vulnerable as she had just given birth. The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e)) 1. The applicant is 11 years younger than his former wife and 27 years older than his daughter. Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f)) 1. The applicant was aware his newborn daughter was a child. The person's present age (s30(1)(g)) 1. The applicant is 29 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h)) 1. The applicant has no criminal convictions. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i)) 1. The psychologist Ms Kim Dilati prepared a risk assessment report for the applicant. It was the applicant's understanding that Ms Dilati spoke Arabic. When he realised this was not the case, he requested an interpreter and informed Ms Dilati that a telephone interpreter would be available to assist. Ms Dilati refused the request, telling the applicant that she would keep the interview simple. 2. Ms Dilati conducted the risk assessment for the applicant using assessment information, collateral information and the following psychological tools: Historical, Clinical Risk Management – 20, Version 3 (HCR-20) and the Psychopathy Checklist – Revised (PCL-R). The applicant scored in the low range of risk of future violence, indicating that he presents with limited risk factors for violence and some protective factors, which are known to protect an individual from antisocial behaviour and aggressive/violent behaviours in the future. 3. The applicant also scored within the low range of psychopathy. In individuals who, like the applicant, are assessed as having low levels of psychopathy, there is a low risk of predicted violence, dangerousness and recidivism and a high likelihood of rehabilitation. On the basis of notes provided by the access supervision organisation, Ms Dilati found that 'the contact notes present as encouraging and it can be presumed that [the applicant] has established a close bond and a healthy attachment to his daughter.' 4. On the assumption that the applicant may have engaged in domestic violence situations, Ms Dilati found that despite his low risk scores on the HCR-20 and PCL-R tools, the applicant's level of risk to the safety of children 'is considered more than insignificant.' In light of our doubts that any such domestic violence ever took place between the applicant and his then wife, we have given less weight to Ms Dilati's findings in this regard. Information given by the applicant in, or in relation to, the application (s30(1)(j)) and any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1)(j1)) 1. The applicant has denied ever being physically aggressive towards his former wife. Character references confirm the applicant's evidence that he is trusted to look after the children of his friends. There is no dispute to the applicant's evidence that he has stable accommodation, good support structures and is currently employed. 2. There is no relevant information before us that was obtained in accordance with section 36A. Any other matters that the Children's Guardian considers necessary (s30(1)(k)) 1. The Children's Guardian neither opposes nor supports the applicant's application. Conclusion on section 30(1) matters 1. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a Working With Children Check clearance. 2. For the reasons set out above, we do not accept that the applicant ever threatened to have his daughter circumcised, nor can we make a positive finding that the applicant has ever assaulted his former wife or his daughter. On the evidence before us and for the reasons provided, although we are unable to dismiss the allegations of assault as groundless, we do not have any lingering doubt or suspicion that they occurred. 3. For the reasons set out above, although an apprehended violence order was made against the applicant, in light of the other evidence before us, we have doubts that any physical altercation ever occurred between the applicant and his former wife. 4. We accept the evidence of the psychologist Ms Dilati that on the results of the assessment tools the applicant poses a low risk of future violence. Given our doubts that any physical altercation took place between the applicant and his former wife we give less weight to Ms Dilati's consideration of the apprehended violence order itself. 5. There is a range of testimonial evidence before us that attests to the good character of the applicant and that he is trusted to be unsupervised around children. He has no criminal record and on the evidence before us, we are satisfied that he is an involved and committed parent to his daughter. 6. On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children. Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant? Section 30 (1A) of the Child Protection (Working with Children) Act 2012 applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that: a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, and it is in the public interest to make such an order The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation. 1. In order to properly consider this test, a "reasonable person" would need to know about the charges brought against the applicant in 2016 and their dismissal, his response to allegations that he threatened to have his infant daughter circumcised, the expert assessment provided by Ms Dilati and the character references given in support of his application. 2. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. In this regard, the reasonable person would note that the applicant has no criminal record and that the charges brought against him in relation to the assault of his daughter and his wife were withdrawn and that the evidence provided by his wife was contradicted not only by the applicant himself but by other witnesses. In the light of the above - and in the absence of any evidence from the applicant's wife – the reasonable person would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. Public interest 1. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest." 1. On the evidence before us, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. Decision 1. For the reasons set out above, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order. Orders 1. The decision of the Children's Guardian dated 1 March 2018 to cancel a Working With Children Check clearance is set aside; 2. In substitution for this decision, the following decision is made: the respondent is to grant the applicant a Working With Children Check clearance authorising the applicant to engage in paid and unpaid child-related work. ********** 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 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 20 December 2018 - Date of Orders amended to reflect Ex Tempore decision - this being the written reasons for decision 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 December 2018