BCS v The Children's Guardian

[2014] NSWCATAD 81

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BCS v The Children's Guardian [2014] NSWCATAD 81
Decision date:	16 April 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane
Decision:	1. The Application is refused and dismissed
Catchwords:	Enabling Application under Child Protection (Working with Children) Act 2012 - Non-disclosure by Applicant of other sexual offences - Application of ss. 25(5) and 28(7) of the Act as to full disclosure of relevant matters by Applicant and onus of proof on Applicant
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) 2012
Category:	Principal judgment
Parties:	BCS (Applicant) Children's Guardian (Respondent)
Representation:	Counsel G A Moore (Respondent) T Heenan ( Applicant) Crown Solicitor (Respondent)
File Number(s):	1340035

reasons for decision

INTRODUCTION

1. On 5 March 2008 the Applicant was convicted by a jury in the District Court of NSW of an offence under s.61I of the Crimes Act, 1900 (NSW) of sexual intercourse without consent with his wife.

1. He was sentenced to imprisonment and has served his sentence.

1. The Applicant is a dentist. He wishes to be able to provide dental treatment to persons under 18 years of age. Under the Child Protection (Working with Children) Act, 2012 (the "Act"), the conviction in 2008 renders him a "disqualified person" to whom the Children's Guardian is prohibited from providing a Working with Children clearance.

1. The Applicant has therefore applied to the Tribunal under s.28(1) of the Act for an enabling order declaring that he is not to be treated as a "disqualified person" in respect of that offence.

RELEVANT LEGISLATIVE PROVISIONS

1. 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 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.

1. 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".

1. 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.

1. 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 ss.11(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.

1. 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.

1. 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". The Respondent was an adult at the time the offence was committed.

1. In paragraph (1)(e) of Schedule 2 to the Act, an offence under s.61L of the Crimes Act, 1900, is included in the specified offences that are disqualifying offences.

1. Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to BCS because of the offence against his wife. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for BCS.

APPLICATIONS FOR AN ENABLING ORDER

1. Section 28 of the Act provides:

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled, because the person is a disqualified person.

(4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.

1. Section 30 of the Act provides as follows:

(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 Commission considers necessary.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions TribunalAct 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.

(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.

NON DISCLOSURE

1. Subsection 28(5) of the Act requires that in an application for an enabling order the Applicant must "fully disclose to the Tribunal any matters relevant to the Application".

1. The evidence establishes that in 2001 the Applicant was charged with a sexual assault on an adult female patient as a result of a complaint by the patient. His evidence in cross-examination was that the charge was later withdrawn. But the Applicant had not disclosed the allegation until his cross-examination and there was no evidence other than his evidence in cross-examination as to the detail of the complaint that was made.

1. In 2002 the Applicant was charged with sexual assault of a 20 year old female patient. He was later found not guilty by a jury. It is noted that the jury's finding is not a finding of innocence but a finding that there was not proof beyond reasonable doubt. The Applicant did not disclose this matter until his cross-examination. He provided no evidence of the detail of the allegation made by the patient against him.

1. The applicant relied upon evidence of an expert, Ms Graspas who has attended on BCS for more than 150 sessions of psychotherapy. While he did disclose to her the fact of being charged in respect of patient complaints, he did not disclose what the patients alleged he had done.

1. In addition, documents from the Department of Family & Community Services produced by the Children's Guardian contain records of allegations of sexual assault by the Applicant on his daughter, D, at age 4 years. Subsequently, in Family Law proceedings he consented to orders that his time spent with his children be subject to adult supervision.

1. The Applicant had not disclosed the allegations made against him in respect of alleged sexual assaults by him on D.

1. The Applicant has not made available to the Tribunal the precise allegations made by the two patients who made complaints that lead to criminal charges against him. The Tribunal does not know precisely what the allegations were and it appears that the Applicant, if he has given any thought to it, has decided it was better not disclose those matters.

1. The Applicant has not given the Tribunal any detailed responses to the allegations of sexual assault on his daughter in the records of the Department of Family & Community Services. In a statement recently provided in his evidence, he merely said:

"I deny any sexual or other improper conduct by me towards my children at any time."

1. He did not disclose or address the detail of the allegations made in the Department's records.

1. The allegations made by the patients, the details of those allegations, and the details of the allegations made to the Department are relevant to this Application because the issue is what risk, if any, the Applicant is to children. His detailed responses would be relevant too.

1. The Tribunal finds that the Applicant has not made disclosures to the Tribunal of all matters relevant to the Application. Indeed, given the non-disclosures already referred to, the Tribunal finds that it is more likely than not that there are other relevant matters that he has not disclosed.

1. The Tribunal therefore finds that the Applicant has not discharged the onus under ss.28(7). He has not satisfied the Tribunal that an enabling order should be made.

ORDER

1. The Order of the Tribunal is:

(1)   The Application is refused and dismissed.

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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

Decision last updated: 17 June 2014