BQR v Children's Guardian

[2024] NSWCATAD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BQR v Children’s Guardian [2024] NSWCATAD 248

Hearing dates:

8 August 2024

Date of orders:

23 August 2024

Decision date:

23 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Senior Member
R Royer, General Member

Decision:

The application for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 is refused.

Catchwords:

ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a disqualified person having been convicted of disqualifying offences (indecent assault) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None

Category:

Principal judgment

Parties:

BQR (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
GS Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00008513

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. BQR (the Applicant) seeks an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (the Act). The Children’s Guardian (the Respondent) refused the Applicant a working with children check clearance (WWCCC) because he is a disqualified person under the Act.

2. The Applicant seeks a finding by the Tribunal that he does not pose a risk to children. The Applicant is presumed to be a risk to children because in 2014 he was found guilty of three indecent assault offences.

3. The Respondent opposes the application for an enabling order.

4. The Applicant applied for a WWCCC on 18 November 2023 which was refused by the Respondent on 29 November 2023. The Applicant applied for the enabling order on 3 January 2024.

5. The Applicant is referred to as BQR because, to protect the victim, an order was made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that the name, or anything likely to lead to the identification, of the Applicant and any person referred to in the proceedings is not to be disclosed, published or broadcast without leave of the Tribunal.

Material before the Tribunal

6. The Applicant provided an affidavit, a bundle of documents that included a statutory declaration, a resume, letters of reference, a psychologist’s report, and a 2014 letter from the Respondent, as well as two written submissions to the Respondent and the Tribunal.

7. The Applicant gave oral evidence and was cross examined by audio visual link at the hearing on 8 August 2024.

8. The Respondent provided two bundles of documents, the second including a USB drive, an affidavit from an officer of the Respondent and written submissions to the Applicant and the Tribunal.

Role of the Tribunal

Jurisdiction

9. Section 28 of the Act provides that applications may be made to the Tribunal for enabling orders under the Act. The Tribunal is satisfied it has jurisdiction to hear and determine the Applicant’s application: see ss 9 and 55 of the Administrative Decisions Review Act 1997 (the ADR Act) and s 30 of the CAT Act.

The Applicant’s case

10. The Applicant submits he has discharged his onus to prove he is not a risk to children and should be granted an enabling order. The Applicant submits he has demonstrated he has knowledge of and willingness to comply with the child protection scheme established under the Act and that the passing of time since his convictions and good record since that time should weigh in his favour. The Applicant submits he is of good character, has been open and transparent and can be trusted to work with children.

The Respondent’s case

11. The Respondent opposes the making of an enabling order and submits the Applicant has not discharged the onus to prove he poses no risk to children. The Respondent submits the Applicant has not proved he is not a risk to children on the basis of his past and more recent conduct.

Legislation

12. The object of the Act is to protect children by requiring people to hold a WWCCC if they engage in child-related work: see ss 3 and 28(1) of the Act. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations under the Act: s 4 of the Act.

13. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Respondent for the relevant clearance, and a breach of s 8(1) is an offence.

14. Section 18(1)(a) of the Act provides the Respondent must not grant WWCCC to “disqualified persons” which is relevantly defined to include:

(a)   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,

15. The relevant disqualifying offence of indecent assault is specified at cl 1(1)(e) of Schedule 2 to the Act, being an offence under s 61L of the Crimes Act 1900. Section 5(1) of the Act defines conviction to include a finding that the offence was proven even if a court does not proceed to a conviction.

16. Section 28 of the Act permits the Tribunal to make an enabling order and 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 under section 23,

because the person is a disqualified person.

(4)  The Children’s Guardian 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 Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

(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.

17. Section 30(1) of the Act sets out the considerations the Tribunal must take into account when deciding whether to grant an enabling order:

(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 criminal history and the conduct of the person since the matters occurred,

(i)  the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1) any order of a court or tribunal that is in force in relation to the person,

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

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

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

18. Section 30(1A) prohibits the Tribunal making an enabling order unless satisfied that:

(a)  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 any child-related work, and

(b)  it is in the public interest to make the order.

Consideration

The Applicant’s history

19. The Applicant is a 70 year old man who holds several qualifications including in International Business Law and Marketing, Distribution, Consumerism both to a PhD level and an MBA. He is retired and is a pensioner but in the past has travelled widely and worked in many countries. He has operated a karate Dojo for various periods since 2011 at which children have been taught karate since 2012. The Applicant has never held a WWCCC.

The disqualifying offences

20. On 15 August 2014 the Applicant was found guilty of three counts of indecent assault and a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 for two years was imposed on the Applicant.

21. The circumstances of the offending include that the Applicant, then 59 years old, met the 25 year old victim at a café in May 2013. They had a conversation and a few days later the victim went to the Applicant’s home in an isolated location for Reiki treatment. In a spare bedroom, while the Applicant was out of the room, the victim removed most of her clothes and lay on the bed. The Applicant kissed the victim on the lips while the victim’s eyes were closed. The court determined the following conduct of the Applicant then occurred and each is a disqualifying offence:

1. The Applicant placed his hands on the victim’s breasts;

2. The Applicant placed his hands on the victim’s breast and pressed his erect penis against the victim’s buttocks; and

3. The Applicant pushed his erect penis against the victim’s buttocks.

22. The Applicant pleaded not guilty and continues to deny all aspects of the conduct of the three disqualifying offences that the court found proved beyond reasonable doubt. The Applicant told the Tribunal he could not afford an appeal and was emotionally distressed at the convictions. The Applicant admits the kiss and stated that the victim could have left the room at any time following the kiss.

23. Following the convictions for the disqualifying offences, the Applicant only performs Reiki on close family and friends who are like family.

Notice as to disqualification and previous application

24. The Applicant previously applied for a WWCCC on 6 November 2013 which was refused on 27 November 2014. The Applicant was notified by letter on that occasion that he must immediately stop any paid or voluntary work with children and that to continue to do so was a criminal offence.

25. In January 2015 the Applicant applied for administrative review of the 2014 decision to refuse him a WWCCC. In the application the Applicant stated he had been teaching children and adults martial arts since 1979 and was suffering financial hardship because he was unable to teach horse riding and martial arts. The Applicant withdrew the application for administrative review later that month.

26. The Applicant was told by an officer of the Respondent in a phone conversation on 29 November 2023 that he was barred from working with children and it was an offence to do so.

27. The Applicant has taken no formal steps to educate himself as to the requirements of the Act following the disqualifying offences. Instead, his evidence was that he continues to be on “a spiritual journey”.

Teaching of children at the Dojo

28. The Applicant’s Dojo commenced teaching adults in 2011 and children in 2012. The Applicant’s evidence was that following notification of his status as a disqualified person in 2014 his Dojo stopped teaching children for a period but commenced again in 2017 until March 2020. In July 2022 the Dojo recommenced teaching including teaching children.

29. On the material before it, particularly on the photographic and video evidence (exhibit R2) the Tribunal is satisfied the Applicant taught children karate at his Dojo at times between 2017 and 2023. Further, during cross examination the Applicant admitted to teaching children in Australia over a period of ten years without a WWCCC.

The Applicant’s understanding of child protection scheme

30. The Applicant’s evidence was that before a lawyer lodged an application for a WWCCC on his behalf in 2013 he was unaware of the need to have a WWCCC in order to teach children. His understanding at the time, which continued for many years, was that contact with children requiring regulation needed to be direct physical conduct which he contended does not occur in either horse riding or karate teaching.

31. The Applicant’s evidence in his statutory declaration was he had been under the misapprehension he was subject to a five year bar from working with children following the disqualification offences in 2014. However, under cross examination the Applicant admitted he had recommenced teaching children karate at his Dojo from 2017 which was within the non-existent bar period he thought applied to him.

32. Despite the previous notice to, and experience of, the Applicant detailed above, the Applicant’s evidence was that he had forgotten the need for anyone teaching children to hold a WWCCC and other requirements under the Act because his mother fell ill in 2015 requiring him to regularly travel overseas to care for her until her death in December 2021, which continued to affect him throughout 2022.

33. The Applicant’s evidence was that in November 2023 the Applicant was told by a parent that WWCCCs were needed for anyone teaching children. The Applicant applied for a WWCC in November 2023.

34. The Applicant’s evidence was that he did not understand, until informed by an officer of the Respondent in March 2024 that as the head of his Dojo he was the head of a child safe organisation, an organisation that involves child related work that employed workers in child related work. At that time the Applicant was also informed he could not engage in child related work or be the head of a child safe organisation without a WWCCC.

35. The evidence of the Applicant regarding his lack of knowledge of the requirements under the Act relating to the teaching of children is not plausible because the Applicant was put on notice on several occasions that he required a WWCCC to teach children and had on one occasion applied for a WWCCC and sought review of a decision to refuse a WWCCC.

36. The Applicant’s evidence is demonstrative of, at the very least a lack of understanding, if not disregard, of his obligations under the Act over a long period of time with no steps taken by the Applicant to obtain relevant knowledge or properly inform himself of those obligations.

37. The Applicant submitted he had been candid in making admissions and had also volunteered information to the Respondent’s officer in March 2024. The Tribunal cannot accept the submission of the Applicant that he has been open and transparent. The Tribunal cannot accept the Applicant’s evidence denying the conduct of the disqualifying offences for which he has been convicted. In his oral evidence the Tribunal observed that the Applicant sought to minimise and deflect responsibility for his conduct both in relation to the disqualifying offences and also in his other failures to comply with the requirements of the Act. For example, in oral evidence the Applicant stated before March 2024 his obligations and responsibilities under the Act in relation to the teaching of children “were never explained to me”.

38. A further example is that when shown a video of children approaching the Applicant to extend their hand to hit the Applicant’s stomach during a karate exercise the Applicant sought to justify the conduct on the basis he did not touch the children instead they touched him, and the Applicant also noted that parents of the children were in the room at the time. This example is also demonstrative of the Applicant’s continued lack of understanding of the requirements of the Act at the time of the hearing.

Psychologist’s report

39. Dr Katarina Fritzon performed a sexual risk assessment on the Applicant and provided a report. The report contains the following conclusion (at [51]-[52]):

It is noted that individuals who commit sexual offences against children possess different risk factors to those whose offences relate to adults. These unique risk factors include more mental health difficulties (distress, neuroticism and use of mental health services), and being more likely to experience social problems, and have active substance use problems (Pullman et al, 2017). Furthermore, individuals who commit sexual offences against children often experience significant conflict within, and difficulties sustaining adult intimate relationships, and this is considered a factor in explaining why those individuals may seek to have their emotional and sexual needs met by children. This risk factor is also not present for [the Applicant].

The Tribunal may therefore consider that the results of this risk assessment does not warrant any significant caution around granting a Working with Children card.

40. The report also found the Applicant’s interest in and motivation for treatment was “somewhat below average” (at [43]), essentially seeing no reason to change and that the Applicant’s test results suggested his risk of sexual reoffending is low (at [50]).

Letters of reference

41. The Applicant provided a number of letters of reference, some attached to his statutory declaration and others attached to his subsequent affidavit. The initial letters do not detail each author has full knowledge of the disqualifying offences and therefore can be given little weight. Of the later letters, while the evidence of the Applicant was that he did not tell them what to write and instead asked them to confirm they were informed of the circumstances of the disqualifying offences, all but one of the letters contain the same words for the first two sentences and on that basis the Tribunal cannot be satisfied as to how those letters were prepared and can therefore give them little weight. The remaining letter is from the Applicant’s partner and also can be given little weight.

Does the Applicant pose a risk to the safety of children?

42. The Tribunal’s approach to fact finding was set out in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, after discussing M v M (1988) 166 CLR 69, as (at [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.

43. This approach was confirmed by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

44. The Tribunal begins by presuming the Applicant poses a risk to the safety of children and the Applicant must then prove he does not pose a risk to the safety of children: see s 28(7). Section 5B of the Act defines risk to the safety of children to be “a real and appreciable risk”. If the Applicant does not discharge his onus, the Tribunal cannot grant an enabling order.

45. An enabling order cannot be subject to conditions and the grant of such an order would permit the Applicant to potentially engage in a range of child related work. Therefore the assessment of risk the Tribunal is to perform is not limited to consideration of only the Applicant’s teaching of karate to children as relevant child related work.

Consideration of s 30(1) criteria

46. The disqualifying offences were moderately serious, involving sexualised touching of a much younger person. The offences involved the Applicant crossing an important boundary and breaching the trust of a 25 year old woman who was in a position of some vulnerability. There was a large age gap between the Applicant and the victim, approximately 34 years. The Applicant was 59 years old at the time of the disqualifying offences and is now 70 years old. The victim was not a child.

47. The Applicant continues to deny all of conduct of the disqualifying offences in contradiction to the findings of a court made beyond reasonable doubt. The Tribunal accepts the submission of the Respondent that this demonstrates the Applicant’s lack of insight and suggests he may not be able to distinguish between appropriate and inappropriate behaviour which may cause the Applicant to harm or to act inappropriately with children, without even realising it, or to fail to prevent behaviour of concern occurring to children.

48. The Applicant submits the report of Dr Fritzon is comprehensive and should carry significant weight regarding the risk of safety to children. The Tribunal cannot accept this submission. The report addresses only sexual risk, not the full scope of risk to the safety of children to be assessed by the Tribunal in this matter. Further, the report supports a finding that the Applicant is unlikely to be willing to change or address any of his behaviour.

49. There is no information obtained under s36A of the Act in this matter. The two year bond for the disqualifying conduct expired in 2016 and no court or tribunal orders currently apply to the Applicant.

50. While there has been a long period of time since the disqualifying offences and the Applicant has not been charged with any criminal offences since, the Applicant’s conduct has not been without concern.

51. During cross examination the Applicant admitted to teaching children in Australia over a period of the past ten years without a WWCCC and that he had committed a number of breaches of the Act.

52. On the material before it the Tribunal is satisfied the Applicant has at times taught children without a WWCCC, in breach of the Act since at least 2012, including after he became a disqualified person and was notified of that status in 2014.

53. Further, on the material before it, the Tribunal is satisfied the Applicant operated a Dojo at times between 2017 until March 2024 where instructors did not hold WWCCCs in breach of the Act and that the Applicant performed no verification and kept no record of any WWCCCs for those instructors during that time, in breach of the Act.

54. The Tribunal is therefore satisfied the Applicant has demonstrated a disregard for the child protection system established under the Act. As a result of this conduct of the Applicant, including the Applicant’s history of non-compliance with the Act and lack of appropriate steps taken to inform himself as to the requirements and obligations of the Act the Tribunal cannot be satisfied there will be no repetition of non-compliant conduct by the Applicant.

55. Therefore the Tribunal is satisfied the Applicant poses a real and appreciable risk to the safety of children.

Conclusion

56. In all the circumstances and considering the s 30(1) criteria, on the material before it, the Tribunal is satisfied the Applicant has failed to discharge the onus placed on him to prove he is not a risk to the safety of children.

57. It follows the application for an enabling order must be refused.

58. Given the Tribunal’s decision that the Applicant has not discharged his onus to prove he does not pose a risk to the safety of children, it is not necessary to consider s30A matters in these reasons.

Order

1. The application for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 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: 23 August 2024