BKX v Children's Guardian

[2015] NSWCATAD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKX v Children’s Guardian [2015] NSWCATAD 155
Hearing dates:	5 May 2015
Decision date:	24 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review – respondent determined to refuse the applicant’s application for a working with children check clearance – applicant subject to an assessment requirement by the respondent due to having been charged in December 2007 with an offence of assault occasioning actual bodily harm of a nine-year old boy in his care – the charges were subsequently dismissed – the applicant asserted he had acted in self-defence – the applicant was also the subject of a number of subsequent police intelligence and event reports - whether the respondent’s decision that the applicant poses a risk to the safety of children by reason of the trigger events and the other matters raised is the correct and preferred decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Crimes Act 1900
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 M v M [1988] HCA 68: 166 (CLR) 69 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BKX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson Solicitors: Macedone Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410410
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of a child referred in the material filed and the name of any other person from which the name of the applicant or a child could be identified is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

1. The applicant, BKX, seeks review of a decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (the Act).

2. The applicant is 50 years of age and seeks a clearance so that he can continue to work as a carer for children with a disability. He was his mother’s full time carer up until she died and then worked as a carer for a number of organisations and as an independent contractor in recent years.

3. The applicant made his application for a working with children check clearance in September 2013. In March 2014, the respondent informed the applicant he would be subject to a risk assessment under ss 14 and 15 of the Act. What triggered the risk assessment was the applicant having been charged with an offence of assault occasioning actual bodily harm in December 2007. The victim of the alleged offending conduct was a nine-year old disabled boy who was in the applicant’s care at the time. The charges were subsequently dismissed in August 2008, when the police prosecutor offered no evidence. The charges were nevertheless a “trigger event” for the purpose of the respondent assessing his application for a clearance (see s 14 and cl 1(2)(a) of Schedule 1 of the Act).

4. On 27 March 2014, the respondent imposed an interim bar on the applicant under s 17 of the Act. That bar prohibited the applicant from engaging in child related work until such time the respondent had determined his application for a clearance.

5. On 8 July 2014, the respondent wrote to the applicant to inform him that it had been determined to refuse his application for a clearance, as the respondent was satisfied, on the material before her, that the applicant posed a risk to the safety of children (see subs 18(2)(a) of the Act). On 5 August 2014, the applicant made this application seeking review of the respondent’s decision under s 27 of the Act.

6. The applicant’s application was heard on 5 May 2015. At the conclusion of the hearing I reserved my decision. I have now considered all the material that was before me and for the reasons set out below, I find that the decision of the respondent is the correct and preferred decision and should be affirmed.

The Role of the Tribunal

7. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application for review: see s 27 of the Act, s 30 of the Civil and Administrative Tribunal Act 2013 and ss 9 and 55 of the Administrative Decision Review Act 1997.

8. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subs 63(1) of the Administrative Decisions Review Act 1997.

9. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

10. In determining this application, the Tribunal has power to make the following orders:

63   Determination of administrative review by Tribunal

(1)  …

(2)  …

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  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.

The Child Protection (Working with Children) Act

11. The objects of the Child Protection (Working with Children) Act 2012 (the Act) Act are as follows:

“3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

12. S 4 of the Act provides that the paramount consideration in the operation of the Act is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”.

13. The word “children” is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word “child” has the same meaning.

14. The Act prohibits a person from engaging in “child-related work”, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance (see subs 8(1)). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

15. Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

16. The term “child-related work” is widely defined in s 6 of the Act. It is not disputed that the work the applicant seeks to undertake is child related work.

17. S 18 sets out how the respondent is to determine an application for a clearance.

18. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subs 18(1) provides that this person is a “disqualified person” and the respondent must refuse that persons’ application for a clearance. The applicant is not a “disqualified person” and the subs did not apply to his application for a clearance.

19. Subs 18(2) and (3) of the Act applies to all applications, other than an application by a “disqualified person”. These subs provide:

“18   Determination of applications for clearances

(1)  …

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.”

20. Persons who are subject to a risk assessment are those to whom any of the matters specified in Schedule 1 of the Act apply: see s14 of the Act. As I have noted, the 2007 charges laid against the applicant were charges for offences falling within cl 1(2)(a) of Schedule 1 of the Act.

21. Subs 15(4) of the Act sets out the matters the respondent may consider when undertaking a risk assessment.

22. As I have noted, having undertaken a risk assessment under s 15, the respondent determined to refuse the applicant’s application for a clearance and he has made this application seeking review of that determination, as he was entitled to do under subs 27(1) of the Act.

23. Subs 27(4) of the Act, provides that an applicant must fully disclose to the Tribunal any matters relevant to his application.

24. Subs 30(1) of the Act sets out the factors the Tribunal must consider in determining a review application. These are similar to those set out in subs 15(4) and are in the following terms:

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.

(2) …

Evidence before the Tribunal

25. The respondent tendered into evidence a copy of the applicant’s criminal history (Bail) report, the documents filed in accordance with s 58 of the Administrative Decisions Review Act 1997, a copy of the documents produced under summons from the New South Wales Police Service and Interrelate Family Centres, an agency that provided counselling services to the applicant. The respondent also provided a chronology of the applicant’s employment as a carer and a more general chronology of events relevant to the applicant’s application for a clearance.

26. The s 58 documents consisted of correspondence between the applicant and the respondent, file notes of conversations with the applicant, copies of enquiries made by the respondent and responses to those enquiries, the material the applicant provided to the respondent and a copy of the respondent’s risk assessment report.

27. The applicant tendered into evidence a statement he made and dated 23 December 2014. Attached to the statement were a number of documents, including a risk assessment report of Sam Borenstein, Clinical Psychologist, who interviewed and assessed the applicant on 3 November 2014.

28. The applicant also tendered into evidence a page of written notes he had prepared, on or about 8 February 2015, for the purpose of the hearing. Attached to these notes are copies of complaints the applicant has made about the conduct of police and a copy of a letter, dated November 2010, from the Department of Education & Training advising that the Commission for Children and Young People had found the applicant did not pose a “particular” risk to children.

29. At the hearing, the applicant gave evidence and was cross-examined by counsel for the respondent. Dr Borenstein also gave oral evidence and was cross-examined by counsel for the respondent. I have dealt with their respective evidence below.

Consideration

30. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.

31. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“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 word "risk" with the words that follow, namely, "to the safety of children."”

32. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: see AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE), at [26].

33. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

34. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so.

35. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summerised the Tribunal’s fact finding task as follows:

“33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

36. Set out below is a summary of the evidence in so far as it relates to the subs 30(1) factors I am required to take into consideration and my findings in regard thereto.

30(1)(a) the seriousness of … any matters that caused a refusal of a clearance or imposition of an interim bar

37. As I have noted, the matter which caused the imposition of an interim bar on the applicant were the December 2007 charges laid against him for an offence of assault occasioning actual bodily harm to a young disabled boy in his care. Included in the bundle of documents tendered into evidence by the respondent was a Police Facts Sheet in regard to this incident and the statements of two persons who had witnessed the incident.

38. The Police Facts Sheet states that the applicant was employed as the respite carer of the boy and he often escorted him on pre-arranged day trips organised by the Department of Community Services and the victim’s foster father. It was noted the boy suffered a number of afflictions including Attention Deficit Hyperactivity Disorder and child schizophrenia.

39. On the day in question, the applicant took the boy on a pre-arranged train ride to the beach in Wollongong. They commenced their return journey at about 4:00pm on a northbound train bound for Sutherland. The applicant told police that the boy was quite difficult to look after and he was highly agitated while on the train and running about the cabin. The applicant said he attempted a number of times to calm the boy down and continually asked him to sit down. It was noted the boy lashed out at the applicant and he admitted he retaliated by slapping the boy on the mouth area with the back of his hand causing the boy’s bottom lip to split and for blood to emanate. The boy began screaming before falling to the ground. It was noted two passengers on the train had witnessed the incident and alleged they saw the applicant kick the boy in the face causing his nose to bleed. State Rail Staff at Sutherland Station detained the applicant and police were contacted. Police arrived shortly thereafter and obtained statements from the two witnesses and a brief version of events from the boy. The applicant was spoken to and it was noted the applicant had admitted he “just snapped” and that while he was frustrated at the boy’s behaviour he was extremely remorseful for his actions. The applicant was subsequently charged with the assault occasioning actual harm offences.

40. In their respective statements to Police, the witnesses (both 25 years of age) said they got on the northbound train at Engadine Railway Station when, at around about Loftus Station, they heard arguing between a boy and a man. The male witness said that he heard what sounded like hitting and punching and slapping. He said he was sitting in the lower part of the carriage and walked up the stairs to the middle part of the carriage and saw an older man about 50 years old with a beard and glasses wearing blue pants and shirt “laying into” a young boy. He said the man was slapping the boy in the face with the back of his hand and kicking him in the stomach area. He said he told the man to stop hitting him and dragged the boy away and that he and his girlfriend took the boy off the train at Sutherland Station. He said that he told the man to sit down and told the station guys who called the Police.

41. The female witness’s statement is in similar terms.

42. Neither typed statement is signed. However, a handwritten version of each statement is contained in the Police Notebook, a copy of which was also included in the respondent’s bundle of documents. These handwritten statements appear to be signed by the respective witness and witnessed by the relevant Police Officer.

43. In his statement filed in these proceedings, the applicant said he had entered a plea of not guilty when he received the Court Attendance Notice in January 2008. As I have noted, the charges were dismissed on 1 August 2008. The applicant said they were dismissed because the prosecution offered no evidence. He noted that the documents produced by the Court in response to the summons issued by the Tribunal, at the request of the respondent, included a Police Facts Sheet in relation to the incident. He said he was not aware how this came to form part of the Court papers as the allegation made against him was always defended. However, he noted that some of the material produced by the Court was material he had supplied to the Court prior to the matter being dismissed. He reiterated that he always intended to plead not guilty and when the charge was dismissed, in August 2008, no witness gave any evidence.

37. In his oral evidence, the applicant acknowledged that on 8 August 2008, Police had sought an adjournment. This was refused and as no police witnesses were present in Court the charges were dismissed the charges were dismissed. He also acknowledged that he had seen the Police Fact Sheet previously.

38. In regard to the material the applicant had provided to the Court, I note this included some references, a memorandum (dated 28 July 2008) to the presiding Magistrate from the boy’s foster carers, a Statutory Declaration the applicant made on 2 May 2008 and a brief psychological report of Dr A Ibrahim dated 28 July 2008.

39. In his Statutory Declaration, the applicant asserted that he had been assaulted by the victim and was “forced/needed to physically defend my person.” He went on to say that to the best of his recollection/memory at no time did he kick or punch the boy in the head or face or stomach. He also said that he believed the young witnesses had been drinking alcoholic beverages on the train on or before the incident.

40. In their memorandum, the boys’ foster carers said the boy was a danger to himself and others and it was unreasonable of the Department to expect the applicant, on his own, to be in charge of the boy when his violence and anger could be not predicted. That is, the foster carers stated that they had absolutely no reason to doubt the applicant and were quite sure that the boy would have had a “crisis reaction (fighting for survival in his mind)” when the applicant would have been in an impossible situation trying to curtail the boy on the train.

41. In his oral evidence, the applicant said he was in tears at the time he arrived at Sutherland Station and that he very much regrets the incident having occurred at all. He also explained that his solicitor had made representations to Police requesting that the charges be withdrawn.

42. He said he had consulted a psychologist following the incident as he wanted to make sure he would not do this again. I note the 2010 risk assessment report of the Department states the applicant had two sessions with the psychologist, which were funded by his employer. When that funding ceased the applicant continued to fund further sessions with the psychologist, up to the hearing of his criminal charges.

43. In his oral evidence, the applicant also acknowledged that the agency he was working for at the time of the incident had suspended him from working with people under the age of 18 years. When asked why he left that agency in October 2008 shortly after the dismissal of the charge, the applicant said he left because the mother of one of the children for which he was providing personal care was not satisfied with the manner in which he providing that care. He explained that the mother wanted him to “suds” her son when he was in the shower and that he did not feel comfortable doing this as the son was capable of doing it himself. He said, as a consequence he complained to the agency and was not provided any further work thereafter.

44. I have some difficulty in accepting this as the full reason for the applicant ceasing to work at this agency.

45. In regard to the trigger event, the December 2007 charge, it is not disputed that the applicant hit the boy. He has disputed that he punched and kicked the boy and has asserted that he acted in self-defence.

46. As I have noted, after the incident, the applicant attended a number of sessions with Carole Janes, a registered psychologist. Ms Janes also provided a report for the purpose of the applicant’s criminal proceedings. In my view little weight can be given to that report as it was entirely based on information the applicant had given her about what had occurred and not based on an assessment of the evidence on which the charge had been laid. I also note Ms Janes recommended, on behalf of the applicant, that consideration be given to dismissing the assault charge and restoring the applicant’s good name. While I am not critical of Ms Janes in making a recommendation of this kind, it cannot at the same time be viewed as an assessment of the applicant’s risk to the safety of children.

47. The 2011 risk assessment report of the Commission for Children and Young Persons was also based on information provided by the applicant, which included the report of Ms Janes. What the Commission did not have was the Police Facts Sheet, the witness statements and the applicant’s response to the charge that had been laid against him.

48. I am not altogether persuaded by the evidence of the applicant in regard to his conduct on the day in question. I accept the boy’s behaviour was at all times unpredictable and on the day in question his behaviour may have been escalating during the course of the train trip. However, the applicant’s response to that behaviour was clearly such to cause the witnesses on the train to intervene and separate the boy from the applicant. It was they who alerted the Station staff about their concerns about the manner in which they had witnessed the applicant treating the boy. And whatever they said to the Station staff was sufficient to call the local Police Station. As I have noted, the Police Fact Sheet records the applicant as having said on the day in question that he “just snapped.” This is consistent with what the witnesses said they heard and saw.

49. In the material tendered into evidence by the respondent is a copy of letter the applicant wrote to the Chamber Magistrate on 8 February 2008, not long after he received the Court Attendance Notice in regard to the charge that had been laid against him. In that letter the applicant requested that the charge be dropped. He said the alleged witnesses had given misleading statements and that he believed they were drinking prior to the incident. He said the real facts included the boy having struck him first and that he, a registered care worker, should be allowed to defend himself. He asserted the alleged witnesses did not get a clear view of the whole incident and that they had “overstepped their bounds”. He denied kicking the boy in the head or splitting his lip. His final fact, in the list of facts, the applicant said:

“Due to the alleged incident, all of my care work with children has been cancelled. This has caused much emotional/financial distress to me.”

57. The applicant went on to say that, in his opinion, the charging officer was relatively inexperienced and that he would be writing to the Ombudsman to clear his name. He said he, as a male in a female dominated career, has had to work twice as hard to “earn/gain” the respect of his clients. He also said – “One last point to ponder; if I were a female care worker, as the NSW Law stands, I would be having [the boy’s] parents on assault charges.”

58. In my view, the content of this letter does not evidence any genuine remorse on behalf of the applicant. On the contrary, he saw himself as the victim and not the boy.

59. In an “Incident Report”, prepared by the applicant for the purpose of the criminal proceedings, the applicant adopted a more conciliatory disposition, but continued to portray himself as the victim. In this report the applicant said the boy had “flung the back of his open hand hard onto my face, splitting my lip and knocking off my glasses.” He said he was unprepared for this and his “unfortunate” “instinctive shock reaction was to slap out in response” and he caught the boy’s face, causing his nose to bleed. He said the boy continued to attack him and he constantly tried to defend himself. He said that just before the train stopped at Sutherland Station the witnesses came from the upstairs carriage to see what the commotion was all about and without giving him an opportunity to explain, “they literally dragged [the boy] away by the arm.” He said they all left the train at Sutherland Station and the witnesses would not allow him anywhere near the boy. The boy on this account and that of the witnesses was clearly not hesitant, in the circumstances, to go with strangers without complaint.

60. In my view, on the material before the Tribunal, there is little, if any contemporaneous record supporting the applicant’s assertion he acted in self-defence. That the boy was prone to unpredictable behaviour was known and this was the reason the applicant had been engaged as the boy’s respite carer. That is, he purported to have the necessary experience and skills to deal with such behaviours.

61. Instead of looking more critically at his own behaviour, the applicant has blamed others, including the boy and his foster parents, as to the events of that day in December 2007. In this regard, I also find applicant’s assertion that the witnesses had been drinking is not supported by the Police Fact Sheet or any other material before the Tribunal.

62. Accordingly, I find that the applicant’s conduct in hitting the boy was serious and I am not satisfied, despite his assertions to the contrary, that the applicant is remorseful or has any real understanding about his conduct on that day in so far as it relates to him in his position as carer of a child, in particular a child with special needs.

63. In addition to this incident the respondent relied on a number of additional matters raised in Police COPS Event Reports concerning the applicant’s behaviour between October 2009 and July 2013. These reports concern sightings of the applicant, by Police, at places such as parks and complaints Police have received from members of the public about the applicant. The applicant has had a long running dispute with the NSW Police Service in regard to these reports and their content to the extent they are based on “personal slurs” made against him without any foundation.

64. The respondent did not at any time contend that these “personal slurs” were to be taken as fact. Of concern to the respondent were the complaints, or reports made to Police, by members of the public, about the applicant’s behaviour. For example, in March 2011, the Police received a report from a person who had allowed the applicant to reside with him and his family. The person is alleged to have said that after a period of 8 to 9 weeks he had to evict the applicant due to his alleged “disturbing behaviour.” This included alleged loitering around the bathroom door when his wife was in the shower and that the applicant kept a number of photographs of disabled children in his room. In his oral evidence the applicant acknowledged he kept a collage of photographs of the children her had cared for. He said these were taken with the knowledge of the parents and he denied any loitering.

65. In January 2012, a parent of a disabled child contacted Police to say she had been approached by the applicant who offered his services as a respite carer. She said she declined the offer as the applicant had provided respite care some three years previously through a home care agency. She said she was concerned about the applicant’s behaviour at that time and contacted the agency not to send him again. She was concerned that the applicant was seeking work on a private contractor basis. In his oral evidence, the applicant acknowledged that he was seeking work as a contractor and in doing so he made contact with previous clients.

66. In March 2012, Police received a report about an alleged attempt at abducting an 11 year old girl. Police spoke to the applicant, who told them he was a home care nurse for disabled people and wore a shirt that matched the description given by the 11 year old girl. However, Police noted that he had a full beard which did not match the girl’s description. The applicant informed Police he was in North Sydney at the time of the alleged abduction. Police subsequently ascertained that the applicant was in North Sydney some two hours after the alleged abduction and not at the time of the abduction. During the hearing in this application, the applicant was question about when he went to North Sydney and why he was there. While his responses were equivocal, in my view they were not such to draw an inference that the applicant was the person seen by the 11 year old girl (i.e. the alleged abductor).

67. Accordingly, other than to note that complaints have been made about the applicant’s behaviour and Police have had the applicant under surveillance for some time, there is no basis to find or infer that there are further incidents of the applicant having acted inappropriately towards a child.

b) the period of time since those … matters occurred and the conduct of the applicant since they occurred,

68. It is almost 8 years since the 2007 incident occurred. During this time the applicant has struggled to find work, as a carer of children with a disability.

30(1)(c) the age of the applicant at the time the … matters occurred,

69. The applicant was 43 years of age at the time the 2007 incident occurred.

30(1)(d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim

70. The victim (the boy) of the 2007 incident was 9 years of age. He was especially vulnerable given his disabilities of which the applicant was fully aware.

30(1)(e) the difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant

71. There was a 43-year difference between the applicant and the victim of the 2007 incident. The relationship between the victim and the applicant as I have already mentioned was one where the applicant was in a position of trust and authority.

30(1)(f) whether the applicant knew, or could reasonably have known, that the victim was a child

72. There is no question the applicant was at all times aware that the boy was a child and that he was vulnerable due to his disabilities and needs.

30(1)(g) the applicant’s present age

73. As I have noted, the applicant is now 50 years of age.

30(1)(h) the seriousness of the applicant’s total criminal record and the conduct of the applicant since the offences occurred

74. Other than having been charged with the 2007 offences of assault occasioning actual bodily harm, the applicant has no record of any other charges having been laid against him or convictions having been entered against him.

30(1)(i) the likelihood of any repetition by the applicant of the … conduct and the impact on children of any such repetition

75. In his report Mr Borenstein proffered the following opinion about the applicant and the likelihood of any repetition by him of conduct of the kind that occurred in 2007:

‘AN OPINION

[The applicant] is pursuing perceived injustice against him from the NSW Police Service for initiating investigation into suspected paedophile activity.

[The applicant] seeks to clear his name, and regain his reputation. He is motivated to return to work with vulnerable clients, which include children which he perceives to be his chosen career.

Since the offence of 2007, and being subject to ongoing police investigation [the applicant] has been subject to significant stress impacting on his psychological health.

In May 2013 [the applicant] presented to Sutherland Psychiatric Unit with a recorded CD eluding to suicide. [The applicant] informed me [he] was assessed to be suffering a Delusional Disorder, and referred to a general practitioner.

…

[The applicant] denied sexual interest in children, male or female.

…

[The applicant] states his interest is in care and welfare of children.

…

On the face of it, [the applicant] is a rather eccentric man, who identifies himself as a carer. He can be over familiar in his interpersonal style. He presents as loquacious, and there may be some confusion with regards to boundary and limit setting. His less than appropriate behaviour at times, is regarded as an expression of eccentricity as opposed to a frank psychiatric disorder.

I could not determine any specific risk factors for [the applicant] with respect to him working with children. To the observer, he can sometimes appear inappropriate, due in part to a personality defined by over friendliness, loquaciousness and familiarity. I could not determine any specific risk factors for [the applicant]. I do not believe he suffers a frank psychiatric/psychological disorder.

Having read and considered the Child Protection (Working with Children) Act 2012 (Section 30) and noting previous investigations in 2010 and 2011 which cleared [the applicant] to work with children, I could not find any risk factors that result of clinical interview and psychometric testing.

…’

76. In his oral evidence Mr Borenstein reiterated that the 2007 incident was a “standout event.” He also agreed that persons caring for children with high needs require special skills. He said the applicant believed that his reputation continues to be questioned and he had a belief of being dealt with unfairly. He said that while the applicant is obsessive about Police, his obsession does not fit the criteria of delusion as he is responding to reports that did exist. In regard to the applicant’s very lengthy CD recording he had prepared in January 2014 and sent to Ms Janes, which resulted in her referring him to the regional Mental Health Triage, Mr Borenstein agreed that the advisable course for the applicant was to seek ongoing help immediately after his discharge from hospital. He did not seek that assistance for another six months. Indeed it was not sought until after the respondent made the decision to impose the interim bar on the applicant. Furthermore, when he did seek psychological help, the record shows he did so, on the basis of his relationship with his father’s partner, a fact the applicant had failed to mention to Mr Borenstein.

77. Later in his evidence, Mr Borenstein said he got the impression the applicant was pressing this application so as to protect his reputation rather than seeking to work with children. He also said that he did not believe the applicant’s personality would change. However, treatment would help him have a better understanding of how others perceive his behaviour.

78. In regard to the collage of photographs the applicant had retained of the children he had cared for, Mr Borenstein said he found this a little unusual. He said the applicant denied he had retained these for his own personal gratification. Nevertheless, Mr Borenstein was uncertain as to what motivated the applicant to retain these, which he saw as a privacy issue and not a boundary issue.

79. In my view, while Mr Borenstein assessed the applicant to be of no risk in his report, in his oral evidence he did identify issues of ongoing concern which, in my view, are consistent with my finding that the applicant has not accepted, or understood his role and behaviour during the 2007 incident. And on this basis I have not fully accepted his conclusions as set out in the report. I am also left with the impression from the evidence before me that the applicant appears to be manipulative of the situations he finds himself in, in that he has a tendency to explain events to suit his own purposes.

30(1)(j) any information given by the applicant in, or in relation to, the application

80. Mr Thomas, on behalf of the applicant, submitted that Mr Borenstein’s description of the 2007 incident as a “standout event” should be accepted. That is, it is an isolated event that occurred when reacting to a difficult situation. He noted the support the foster parents had given the applicant. He also asserted the applicant had shown remorse and regretted what he done. In regard to the COPS Event Reports, he noted these were initiated by Police and had not been actioned any further. He submitted, the applicant had been open and frank and that Mr Borenstien’s opinion as to risk should be accepted.

30(1)(k) any other matters that the Children’s Guardian considers necessary

81. In addition to the matters above, the respondent pointed to a file note of an officer of the respondent in regard to her telephone conversation with one of the applicant’s referee. That conversation occurred on 26 May 2005. The referee is the mother of a person for which the applicant provides care. The file note states that the mother described the applicant as being “odd” and that he had coerced her into providing the reference. She said she did so as she wanted the applicant to go away.

Conclusions

82. As I have noted, the jurisdiction of the Tribunal is protective and not punitive in nature. However, I recognise that if a clearance is refused it will have an adverse effect on the applicant. But this is not the issue for determination. What is in issue for determination is whether, on the material before the Tribunal, I can be satisfied, having regard to the factors set out in subs 30(1) of the Act in the context of paramount consideration in s 4 of the Act (i.e. the safety, welfare and well-being of children, in particular protecting them from child abuse) whether the applicant poses a real and appreciable risk to the safety of children.

83. For the reasons I have stated above, in my view the 2007 trigger event is serious. It occurred at a time the applicant was engaged in child related work and while I have not made any finding that the applicant kicked the boy, he has readily admitted that he did hit him and caused his nose to bleed. I have found it difficult to accept his explanation of having acted in self-defence as this is not supported in the contemporaneous Police record of the event or the statements of the witnesses. I have also found that the applicant has failed to properly recognise, or acknowledge his role and behaviour on the day. Instead he continues to blame others, including the boy. In my view, it is this ongoing failure which continues to raise concerns about a real and appreciable risk to the safety to children if the applicant were to be granted a working with children check clearance.

84. Accordingly, I find, on the material before the Tribunal, that the decision of the respondent is the correct and preferred decision and on this basis the appropriate order is to affirm the decision.

Order: The decision of the respondent 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

Decision last updated: 24 July 2015