BKY v Children's Guardian
[2014] NSWCATAD 201
•20 November 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKY v Children's Guardian [2014] NSWCATAD 201 Hearing dates: 1 October 2014 Decision date: 20 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Andrews, Senior Member Decision: The application for an enabling order is refused.
Catchwords: ADMINISTRATIVE LAW - Working with Children Clearance - s. 28 Enabling order application - disqualifying offence s. 61N Crimes Act 1900 NSW - whether the applicant has discharged his onus that he poses no risk to the safety of children - fiduciary relationship giving rise to certain vulnerability - vulnerability of young person over the age of 18. Legislation Cited: Child protection (Working with Children) Act 2012
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Interpretation Act 1987Cases Cited: BFX v Children's Guardian [2014] NSWCATD 115
BGR v Children's Guardian [2014] NSWCATD 150
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476Category: Principal judgment Parties: BKY (Applicant) File Number(s): 1410412 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 the Tribunal or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
The applicant, known by the initials 'BKY' for the purposes of these proceedings, filed his application for an enabling order in the Tribunal on 5 August 2014.
An additional application was made on the same date requesting that the decision of the Office of the Children's Guardian to not grant clearance for the applicant to work in any paid or voluntary child-related employment be stayed on an interim basis pending the outcome of the appeal for an enabling order. The stay application was heard on 15 August 2014 and was dismissed.
The application for an enabling order was heard on 1 October 2014 at Bathurst.
An order was made at the commencement of the hearing under section 64 of the Civil and Administrative Tribunal Act 2013 restricting the publication of information that will identify the applicant, any victims, witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
The applicant seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work.
The respondent opposes the enabling order sought by the applicant BKY.
For the reasons set out below, I am not satisfied the applicant has discharged the onus placed upon him, under subsection 28 (7) of the Act, in order for the Tribunal to make the order sought.
The evidence
The documentary evidence provided on behalf of the applicant is as follows:
(a) (a) Applicant's sworn statement dated 26 September 2014 (Exhibit A1);
(b) (b) Written submissions of applicant's solicitor (Exhibit A2);
(c) (c) 'Tax Calculation' document dated 17 September 2013 providing tax estimates relating to the 2013 tax year only (Exhibit A3);
(d) (d) a small bundle of documents evidencing the applicant's need to have a 'Working with Children' clearance to work in training partnership with another organisation consisting of a memo to their Branch Coordinators and Human Resources managers from Training, Development & Compliance, a Training Partner File Checklist and an email to the applicant evidencing these requirements (Exhibit A4);
(e) (e) a small bundle of documents providing evidence of the applicant's community involvement including local newspaper articles, character references, certificates and awards, and fund-raising activities (Exhibit A5);
(f) (f) Applicant's evidence of his monthly repayments regarding purchase of training equipment for his RTO (Registered Training Organisation) business (Exhibit A6).
The documentary evidence provided on behalf of the respondent is as follows:
(a) Section 31 response from NSW Police, CrimTrac (Exhibit R1);
(b) Section 31 response from Mudgee Local Court (Exhibit R2) comprising a copy of the applicant's 12 month Good Behaviour Bond which expires on 5 February 2014; Police Facts Sheet dated 5 September 2013; Corrective services Pre-sentence report by Community Corrections Officer dated 4 February 2014;
(c) second bundle of documents filed on 19 September comprising of:
(d) Section 31 notice issued to the human resources manager of his former employer and their reply (Exhibit R3);
(e) Emails sent by Office of the Children's Guardian to his former employer and their reply (Exhibit R4);
(f) Section 31 reply from the applicant's local football club (Exhibit R5);
(g) Section 31 reply from his current training partner organisation (Exhibit R6);
(h) Crown Solicitors letter to applicant's solicitor dated 15 August 2013 (Exhibit R7);
(i) Letter in reply to the Crown Solicitor from applicant's solicitor dated 20 August 2013 (Exhibit R8);
(j) a third bundle of documents relating to s 31 reply from NSW Corrective Services (Exhibit R9) including a Pre-sentence Psychological Consultation Report by Senior Psychologist with Community Corrections at Bathurst (Exhibit R10)
(k) written submissions by Counsel for the respondent (Exhibit R11)
There was no objection maintained by either party to the receipt of this evidence by the Tribunal.
The applicant gave oral evidence and was cross-examined.
The Tribunal then received and was assisted by oral submissions in addition to the written submissions already provided.
Relevant Legislative Provisions
The Act came into force on 15 June 2013. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.
The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act. Although the Act refers to "protecting children from child abuse", there is no definition of "child abuse" contained in the Act.
However, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:
"The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
The applicant was charged with an offence pursuant to section 61N of the Crimes Act 1900, to which he pleaded guilty and on 5 February 2014 he was sentenced to a 12 month good behaviour bond under section 10 of the Crimes (Sentencing Procedure) Act 1999. The offence is described in short form in the documents produced from the Local Court as "Commit Act of Indecency". The good behaviour bond will expire in February 2015.
The offence with which the applicant was charged and to which he pleaded guilty is an offence referred to in clause 1 (1) (n) of schedule 2, which is identified as a disqualifying offence. By reason of section 18 (1) (a) of the Act the Children's Guardian must not grant a working with children clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act.
The applicant runs his own business, a Registered Training Organisation (RTO) and wishes to conduct training workshops in partnership with a local organisation on fire safety. Although the workshops are not specifically designed for or targeted at young people, they may attend as part of their work or in a volunteer capacity.
The applicant tendered documents from his training partner setting out the organisation's policy requirements that all of their employees and training partners have a current working with children clearance (Exhibit A4).
A person is not permitted to engage in "child-related work" unless they hold a working with children check clearance: see section 8 of the Act.
By virtue of his recent criminal conviction the applicant is deemed a "disqualified person" under the Act and was refused a working with children clearance by the Children's Guardian.
The applicant claims his business will be adversely affected economically by not being able to include young people under the age of 18 to participate in his training courses.
An enabling order is therefore sought pursuant to section 28 of the Act to allow the applicant to undertake "child-related work" as described above.
Onus of proof
Under section 28 (7) of the Act "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children." The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995.
In order to determine whether the presumption has been rebutted the Tribunal will consider the totality of evidence before it.
The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] at [30], BYR v Children's Guardian [2013] NSWADT 310, at [38], Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
Under section 28 (5) of the Act "An applicant must fully disclose to the Tribunal any matters relevant to the application."
Consideration of the Evidence
The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act. That evidence is now set out under each of the subheadings.
The seriousness of the offences with respect to which the person is a disqualified person
The applicant pleaded guilty to and was convicted on 5 February 2014 for the offence of Commit Act of Indecency With Persons 16 years or Over. (See CrimTrac check Results Report in Exhibit R1).
As a result of that conviction he was placed on a good behaviour bond pursuant to Section 9 (1) Crimes (Sentencing Procedure) Act 1999 for a period of 12 months. The conditions of the bond are that he is to be of good behaviour, to accept the supervision and guidance and comply with all reasonable directions of the Probation and Parole Service for as long as deemed necessary. Further, he is to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation. The bond is due to expire in February 2015.
The Police Facts Sheet dated 5 September 2013 that formed part of the respondent's evidentiary material (Exhibit R2) which provides a description of the offence was succinctly summarised in Counsel's written submission (Exhibit R11) as follows:
(a) The applicant was a long-time friend of the victim and her family.
(b) The victim had left her family home in Mudgee to take up a full-time teaching position in Singleton, NSW. At the time of the offence, the victim was "house-sitting" in the home of a retired school teacher. This arrangement was to last one month after which the victim needed to find alternative accommodation.
(c) The applicant was aware of the victim needing to find more permanent accommodation and he attended the victim's home with an offer to introduce her to person's who may be able to offer more permanent accommodation.
(d) The applicant took the victim to premises on the outskirts of Singleton where they met with others to discuss accommodation for the victim. After this meeting the applicant and victim returned to the victim's home.
(e) The applicant and the victim were sitting in a lounge room watching television. At that time, the applicant and the victim had a blanket over them to keep warm.
(f) The applicant put his left arm behind the victim's neck and over her shoulder. The applicant put his left hand inside the victim's shirt and inside her bra.
(g) The applicant used his left hand and started fondling the nipple of the victim's left breast. While doing this, the applicant said, "Feels like strawberries and cream".
(h) The applicant removed his hand and the victim got off the lounge and moved away to the kitchen area. A short time later, the applicant came into the kitchen area and stood behind the victim. The applicant put his arms around the victim's waist and stomach area and said, "I know you didn't want me to do that but it felt good."
The applicant submitted that although the offence for which he was convicted is a serious one, it was at the lesser end of the scale and there were no aggravating circumstances. Furthermore, the applicant and the victim had known each other for a long time and had spent some time together prior to the incident.
While there were no aggravating circumstances surrounding the offence, nonetheless there are some troubling aspects in regard to the applicant's relationship to the victim, the significant age difference between them, and the impact of the offence on the victim's vulnerability. These matters are dealt with below under the appropriate headings.
The period of time since those offences or matters occurred and the conduct of the person since they occurred
Although the offence was committed in April 2008 it was not reported to Police until December 2012, which was some four years later. Up until the Tribunal hearing, the offence was committed approximately six years and five months ago.
The applicant's solicitor submitted significant time has passed since the offence was committed and that the applicant's conduct and behaviour has been "exemplary".
The matter of the applicant's conduct and behaviour since the offence was not called into question by Counsel for the respondent. Concerns were raised however (in Counsels written and oral submissions) in regard to the perceived nature of the relationship between the applicant and the victim, his attitude towards that perception and the potential for further harm or risk to young women of a similar age to the victim. Those matters are dealt with under the appropriate headings, specifically in regard to the significant age difference between the applicant and the victim at the time of the offence and the fact that he had known her and her family since she was a child.
The age of the person at the time the offences or matters occurred
At the time of the offence the applicant was 57 years old. This is particularly significant given that up until the offence he had no prior criminal history or had ever been in trouble with the law. As Counsel for the respondent put it, the applicant's offence cannot be excused on the "folly of his youth".
Another related consideration of his age at the time of the offence is that simply put, he should have known better. Given his 'exemplary' life prior to and after the offence he clearly understands the difference between what is 'right' and 'wrong'. Certainly when working with young people he is expected to be fully cognisant with what constitutes 'appropriate' versus 'inappropriate' behaviours, especially where there is a significant age difference. That cognisance becomes all the more pertinent where a person is older, in a position of trust or authority such as a teacher, family member or family friend.
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
At the time of the offence the victim was 22 years old. In her written submissions the applicant's solicitor submitted that because of her age the victim was an adult and therefore "did not suffer any conditions that would make her any more vulnerable than other women of her age."
The question of whether or not the victim faced particular vulnerabilities compared to other women her age is considered under the next heading.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person
There is a 36 year age difference between the applicant and victim. It was submitted by the applicant's solicitor that the applicant and victim were 'friends', that in addition to his individual 'friendship' with her that he was a family friend who had known the family for a number of years and was well acquainted with them.
As noted at paragraph 28 above concerns were raised by the respondent in regard to the perceived nature of the relationship between the applicant and the victim.
In his written and oral submissions Counsel for the respondent characterised the relationship as not one of 'friendship' per se but rather one that gave rise to a relationship of trust and authority that made her more vulnerable than an ordinary woman of her age.
In Counsel's submission three factors contributed to this assertion. Apart from the significant age difference, the applicant was a family friend who had known the victim, in his own words, since she was "about seven or eight years old" (according to his evidence-in-chief). Thirdly, it was submitted the victim was hundreds of kilometres from home in a new town with no social networks and was dependent on the applicant to introduce her to potential landlords as placing her in a special position of vulnerability.
This characterisation of a 'parental' or fiduciary characterisation of the applicant's relationship to the victim was put to him several times during cross-examination to which he denied, insisting he and the victim were only ever friends.
The law in relation to the vulnerability of child victims is abundantly clear in legislation and in case law. By virtue of their age, children and young people under 18 are automatically considered vulnerable and in need of protection.
The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making decisions under the Act: see section 4 of the Act.
The circumstances of when a young person over the age of eighteen may be considered vulnerable was recently considered by the Tribunal in BGR v Children's Guardian [2014] NSWCATAD 150.
In that case the disqualified person sought an enabling order in similar circumstances. The offence, of which the applicant was convicted was of similar nature, namely commit an act of indecency that involved touching the victim's breast.
Although the age difference was not as great (there being only a ten year age difference), and even though he was granted an enabling order by the Tribunal, nonetheless the Tribunal found that the facts of the case, namely that the offence took place at night and in the applicants workplace effectively rendered the victim "in a position of some vulnerability."
The Tribunal on that occasion did acknowledge however that the level of vulnerability was by no means as great as it would be "if the victim were a child."
Given the facts of this case and taking into account the Act's objectives of protecting children, and in particular protecting children from child abuse, I agree with Counsel's characterisation of the applicant's relationship with the victim as being one of trust and authority, as placing her in a position of relative vulnerability.
Given this characterisation Counsel submitted this was not a simple case of a much older man seeking the sexual attentions (albeit unwanted) of a much younger woman. Rather it is because of this relationship of trust and authority and the breach thereof that makes her more vulnerable than an ordinary woman of her age.
Despite the applicant's refusal to acknowledge the characterisation of the relationship between him and the victim as being one of trust and authority the facts indicate otherwise. The simple facts are that he has known the victim for several years since a young age, he was a friend or acquaintance of the family and was significantly older. That places him at the very least in some sort of fiduciary relationship to her that requires him to behave with the utmost care and diligence.
Furthermore, the facts indicate (whether he chooses to accept or not) that he did take on a "fatherly" or "parental" role on this specific occasion leading up to the offence. He did this by going out of his way (driving several hours) to help the victim find accommodation in a new town where there were no established social networks. In the Tribunal's view the fact that he had driven several hundred kilometres from Mudgee to Singleton to introduce her to some of his friends who might be able to offer her accommodation is not entirely as innocent as he makes out given the events that transpired which led to his conviction.
This lack of insight or appreciation by the applicant of circumstances where a young person may be placed in a position of relative vulnerability, especially where there is a significant age difference, is of concern to the Tribunal. Coupled with the lack of insight into his own offending and without psychological evidence to show he has appropriate strategies in place to prevent the possibility of re-offending in similar situations involving young women, the Tribunal is not satisfied he has discharged the onus placed upon him to prove he is not a risk to children or young people.
Whether the person knew, or could reasonably have known, that the victim was a child
Given the victim was 22 at the time of the offence this consideration is not applicable.
The person's present age
The applicant is now 63 years of age.
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant's criminal history consists of one conviction only that led to his becoming a disqualified person under the Act and as his solicitor submitted, he has not committed any further offences since. While this is a noteworthy achievement, nonetheless it is only one of a number of considerations the Tribunal has to take into account. In considering the totality of circumstances as outlined in section 30 of the Act the Tribunal is guided by the paramount principle of ensuring the safety, welfare and well-being of children as outlined in section 4 of the Act.
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
As is required when considering sentencing options a Pre-Sentence Report was prepared for the applicant by Bathurst Community Corrections Officer dated 4 February 2014 (Exhibit R2). The report recommended that the applicant "be referred to a Community Corrections Senior Clinical Psychologist with experience in working with sex offenders, in order to assist him in managing his risk of offending."
When cross-examined by Counsel as to whether or not he had received any psychological counselling or educational development in relation to his offence the applicant said he had not nor had he received any directions from Corrective Services to do so as part of his bond.
The only psychological evidence available to assist the Tribunal in determining whether the applicant poses a risk to the safety of children or young people is a Pre-Sentence Psychological Consultation Report prepared by Senior Psychologist Ms Lynette Vidler with Community Corrections in Bathurst dated 4 February 2014 (Exhibit R10).
Although Ms Vidler assessed the applicant as being "in the Low risk range for re-offending in a sexual manner," she did qualify her actuarial risk assessment by stating it was "not a comprehensive risk assessment" given certain limitations of her "consultation". To wit, she did not interview the applicant (in person, by telephone or other communicative means) but rather relied solely on "historical and file information only", which led her to conclude that certain information "such as individual characteristics that relate to recidivism rates" were not explored. This is a significant failing of the psychological report upon which the Tribunal ordinarily seeks to rely on to assist in its determination. In his oral submission, Counsel for the Children's Guardian argued this should be of concern to the Tribunal to which I concur.
In her oral submission the applicant's solicitor argued that given his good behaviour since the offence that the likelihood of his re-offending is low. But in the absence of a thorough psychological examination that involves actually interviewing the applicant the Tribunal is not persuaded otherwise.
The fact that the applicant did not seek counselling in regard to his offence is apparent by his lack of insight into his offending, particularly his lack of awareness of the power dynamics that are present where there is significant age and gender differences. This lack of insight is evidenced by the applicant's inability to explain his behaviour and actions at the time and even some six years later since the offence was committed. The applicant's explanation of his behaviour is simply that it was "out of character" or that he "did the wrong thing." Indeed from the evidence the applicant had difficulty explaining his actions to the police according to their Fact Sheets (Exhibit R2) at page 3 where they state, "The accused was unable to offer an explanation of his actions towards the victim" and to the Community Corrections Officer in his Pre-Sentence Report dated 4 February 2014 (Exhibit R8) where the writer says at page 2 that the applicant "remains unable to explain his actions."
The Tribunal heard that that he did apologise to the victim moments after he fondled her breast and made lewd comments but the sincerity of his apology is questionable given his actions immediately thereafter. Just moments after the offence the applicant came up behind the victim, placed his hand around her waist and stomach area saying, "I know you didn't want me to do that but it felt good." (Police Facts Sheet, Exhibit R2). Counsel for the respondent submitted this was a further violation of the victim in circumstances where he knew it was wrong.
By not seeing a psychologist or counsellor in relation to the offence the applicant was unable to explore or demonstrate to the Tribunal strategies he could put in place to assist him in not repeating his actions or behaviours in the future, especially where young women are concerned. This omission only serves to compound an unsatisfactory psychological report that does not reassure the Tribunal of the unlikelihood of his reoffending.
Any information given by the applicant in, or in relation to, the application
During the hearing it was put to the Tribunal that the applicant would suffer economic harm or be financially disadvantaged if he did not obtain an enabling order to allow him to undertake child-related work through his training courses on fire safety. However, for the purpose of s.28 the Tribunal is primarily tasked to determine whether the applicant has discharged his onus to rebut the statutory presumption that they do not pose a risk a risk to the safety of children. Therefore a person's right to work or that the applicant would lose business if he did not obtain an enabling order is not a relevant consideration. As noted earlier at paragraph 14, the safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making decisions under the Act: see section 4 of the Act.
Any other matters that the Children's Guardian considers necessary
During cross-examination the applicant had difficulty recalling events on the day when the offence was committed despite the fact that he pleaded guilty to the offence in February of this year. Counsel for the respondent argued the fact that he failed to do so, so soon after pleading guilty, is a cause for concern as to the applicant's candour. Given the requirement under section 28 (5) of the Act which states that an applicant "must fully disclose to the Tribunal any matters relevant to the application," I am inclined to agree with that assessment.
Conclusions and orders
Given the significant limitations and inadequacy of the psychological report, the applicant's failure to seek psychological counselling or undertake any educational workshops or seminars in relation to his offence, his lack of insight into his offending, his lack of appropriate strategies to prevent similar offences from occurring in the future and without evidence to the contrary, the Tribunal finds the applicant did not discharge his onus to prove he is not a risk to children or young people. Accordingly his application for an enabling order is refused.
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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: 20 November 2014
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