CGA v Children's Guardian

[2016] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGA v Children's Guardian [2016] NSWCATAD 241
Hearing dates:	16 June 2016 and 1 July 2016
Date of orders:	26 October 2016
Decision date:	26 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member S Davison, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 November 2015 is refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW - Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - disqualifying offence under section 215 of the Criminal Code Act 1899 (Qld) for carnal knowledge of a person under 16 years of age equivalent to section 61J Crimes Act 1900(NSW) – disqualifying offence due to clause 1(1)(z) and clause 1(1)(e) of Schedule 2 to the Child Protection (Working with Children) Act 2012 (NSW) – applicant was placed on probation for 2 years with no conviction recorded - definition of “conviction” under section 5 of the Child Protection (working with Children) Act 2012 (NSW) - offences of using a carriage service to make a threat to kill and convictions related to the carnal knowledge charge - assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - Tribunal not bound by the rules of evidence - onus of proof - onus of proof not discharged by applicant - enabling order refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1899 (Qld) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 CFT v Children’s Guardian [2016] NSWCATAD 92 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985
Category:	Principal judgment
Parties:	CGA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Karp (Respondent)   Solicitors: CGA (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510695
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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. This is an application commenced on 4 November 2015 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “CGA” in these proceedings, that due to a disqualifying offence included in his criminal history, he was not eligible to be granted a Working with Children Check clearance.

2. The applicant was charged with carnal knowledge of a person under the age of 16 and the applicant made full admissions in relation to the offence but received a sentence of “No Conviction Recorded Probation 2 years”, according to the criminal history of the applicant. The offence is one which is specified within Schedule 2 of the Act.

3. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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.

4. The application to the Children’s Guardian was lodged with the Children’s Guardian on 7 September 2015. The applicant was advised on 6 October 2015 that he was a ‘disqualified person’ due to the offence with which the applicant was charged.

5. The hearing was conducted on 16 June 2016 and 1 July 2016. The applicant’s treating psychologist gave evidence and was cross-examined, and oral submissions by the parties were made, on 1 July 2016.

6. In support of the enabling order under section 28 (1) of the Act the applicant told the Tribunal that he wishes to be able to participate in an active way with his child’s school and sporting activities and requires a Working with Children Check clearance in order to fulfil that ambition. An enabling order would permit the applicant to work with children in any child-related work even though the applicant seeks the order for a limited purpose. The respondent opposes the application for an enabling order and the grant of a Working with Children Check clearance.

The Evidence

7. The Application in this matter attached a letter from the Children’s Guardian dated 6 October 2015 informing the applicant that he is a disqualified person under the Act. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal, is as follows:

1. Application filed 4 November 2015: Exhibit A1;

2. Submissions of the applicant dated 2 February 2016 addressing the matters under section 30 of the Act: Exhibit A2;

3. References from members of the community in which the applicant resides dated February 2016, and an academic transcript in relation to the applicant’s studies 2015 and 2016: Exhibit A3;

4. Report of psychologist Anne-Maree Bennett dated 15 February 2016: Exhibit A4;

5. Memory stick and video of the applicant: Exhibit A5;

6. Documents filed for the respondent on 15 January 2016: Exhibit RB1

7. Further documents filed for the respondent on 3 March 2016: Exhibit RB2;

8. Further documents filed for the respondent on 11 March 2016: Exhibit RB3;

9. Further documents filed for the respondent on 16 March 2016: Exhibit RB4.

8. The Tribunal received and was assisted by the written submissions provided by both the applicant and respondent.

9. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

10. The Act came into force on 15 June 2013. The amendments introduced into the Act on 2 November 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.

11. 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.

12. 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.

13. There is no relevant definition of “child abuse” contained in the Act.

14. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a)   the physical injury or sexual abuse of a child or young person, or

(b)   a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c)   the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units”

15. 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 and the protective purpose or objects underlying 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.”

16. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

17. The offence with which the applicant was charged was carnal knowledge of a child under the age of 16 years pursuant to section 215 of the Criminal Code Act 1899 (Qld), in the circumstances referred to later in these reasons. The Act in section 5 defines ‘conviction’ as including “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. The offence with which the applicant was charged and ‘convicted’ is one which falls within clause 1(1)(z) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a Working with Children Check 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 is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence.

18. An enabling order is sought pursuant to section 28 of the Act, which provides:

“28 Orders relating to disqualified and ineligible persons

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

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

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

(a)    the person has been refused a Working with Children Check clearance, or

(b)    the person’s clearance has been cancelled,

because the person is a disqualified person.

(4)    The 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.

(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.”

19. The respondent is a necessary party to the proceedings pursuant to section 28 (4) of the Act.

20. 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. There is no issue in this matter that the applicant wishes to potentially engage in child-related work or work which requires that the applicant obtains a Working with Children Check clearance.

Standard of Proof and Onus of Proof

21. It can be seen from section 28 (7) of the Act that 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; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

Required Considerations

22. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are:

“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) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.”

23. The Children’s Guardian received information pursuant to section 31 of the Act from the various government agencies, including the police and the courts. That information was tendered in evidence.

24. Section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): see BKE v Office of the Children’s Guardian, at [4], [25], [27].

25. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

26. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

27. The discussion which follows is repetitive of matters set out in earlier judgments of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons.

28. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [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); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

29. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.

30. In the disqualifying matter before the Tribunal the applicant had no conviction recorded and was sentenced to 2 years’ probation for the offence referred to in Schedule 2 of the Act. As referred to earlier in these reasons, the Act in section 5 defines ‘conviction’ as including “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. That is what happened in relation to the charge under section 215 of the Criminal Code Act 1899 (Qld). Therefore the charge, and the court adjudicated outcome, is to be taken as a ‘conviction’ for the purposes of the application under section 28 of the Act. The applicant has been convicted (in the usual sense) of other offences which are referred to in more detail later in these reasons and for which he received sentences of a recognizance to be of good behaviour for 2 years on each charge.

Other matters

31. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine whether, in all the circumstances, it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

32. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence which occurred: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges are also able to be considered, if appropriately relevant, for the same reasons.

33. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by Schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

34. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

Consideration of the evidence

35. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others, however each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

36. The offence of carnal knowledge is a serious offence in the context of this application because it falls within the definition of child abuse. The applicant made full admissions in relation to the offence stating to the effect that he knew it was wrong to have sex with a person under the age of 16, but thought it was permitted if it was consensual. There was apparently no coercion. A person under the age of 16 is deemed not capable of giving that consent and is considered to be under the influence of the adult.

37. The applicant was also charged with offences of using a carriage device to threaten to kill, which is undeniably a serious matter. In relation to those matters a conviction was recorded and a recognizance with a 2 year good behaviour bond was imposed. The Tribunal finds on the balance probabilities and accepts that the applicant clearly knew that his threats would frighten the victim and the victim would likely be concerned for the welfare of other people included in those threats. The applicant made threats against his mother and his former girlfriend.

38. The applicant does not deny the seriousness of the matters which have been raised in this application. The applicant states that in his past he was homeless, abused drugs and alcohol, and was subjected to abuse by his mother. The applicant says that he has moved on and bettered himself with help from informal and formal counselling. The respondent in submissions accepted that the applicant suffered abuse at the hands of his mother and described the applicant’s childhood as “horrific”.

The period of time since those matters occurred and the conduct of the person since they occurred

39. The carnal knowledge matter occurred approximately 10 years ago.

40. The conduct of the applicant since that time has been the subject of some negative comment and will be identified later in these reasons, particularly in relation to an incident which occurred outside a primary school in October 2015.

41. The lapse of time between the conviction for the purposes of the Act for carnal knowledge and the current application might be thought to be evidence of a minimal risk of recurrence of the conduct. The Tribunal considers that there are other matters which are more significant in terms of the risk posed by the applicant than his apparent good behaviour since the carnal knowledge matter.

42. The applicant’s treating psychologist states that the events indicate that the applicant had poor judgment as a 19-year-old man with few positive role models, and he did not consider the consequences of his actions at the time.

The age of the person at the time the offences or matters occurred

43. The applicant was aged 19 at the time of the offence.

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

44. The victim of the carnal knowledge matter was aged 15.

45. The victim was vulnerable due to her age and her own impoverished circumstances.

46. The applicant was alleged to have made threats to the pregnant victim to the effect that he wants the baby and will kill the victim to get the baby. The applicant was also alleged to have threatened to kill the victim and the baby, if the baby was not the applicant’s child. The victim was clearly frightened of the applicant and reported these matters to the police.

47. In his remarks on sentence accepting pleas of guilty, the sentencing judge stated:

“Counts 2 and 3 concern threats made over the telephone. The telephone calls were made to your mother. The threats were directed to the complainant in respect of count 1 [the carnal knowledge count] and a person with whom she lived. In the first call, which relates to of (sic) count 2, you said to your mother that if DNA tests showed that you were not the father of the child that your former partner was expecting, then you would kill her. In respect of count 3, you made another call to your mother in which threats were directed to the people with whom your former partner was living.”

48. The Tribunal finds on the balance of probabilities that the applicant engaged in an underage sexual relationship with the victim knowing that she was a child and subsequently made threats of violence to capitalise upon the vulnerabilities of the victims. The purpose of making those threats is only partially explained by the age and background of the applicant.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

49. The difference in age between the victim and the applicant is 4 years.

Whether the person knew, or could reasonably have known, that the victim was a child

50. The victim was a child. The applicant says in his submissions to the Tribunal that he knew she was under the age of 16 years.

The person’s present age

51. The applicant is currently 29 years old.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

52. The applicant has a criminal record for threatening to kill via a carriage service. The applicant had no conviction recorded for the carnal knowledge matter, but as referred to previously, that outcome is treated as a “conviction” for the purposes of the Act. The applicant submits that he has not been charged or questioned in relation to any criminal activity since those matters occurred. The “conviction” (for purposes of the Act) of carnal knowledge is a serious offence, as is the conviction for using a carriage service to threaten.

53. The applicant met the victim of the carnal knowledge matter by smoking marijuana together every day. After one month of knowing her, they commenced a sexual relationship. They both moved to a caravan park where her family lived. The applicant realised that the family were heavy drinkers and used ice and heroin by injection. The applicant says that he did not condone the use of intravenous drugs and many fights occurred between the applicant, the victim’s family, and other residents of the caravan park. This conflict was reported by the applicant to the psychologist who prepared a report for the Tribunal, as the catalyst for the demise of the relationship. The applicant told the psychologist that he considered their sexual activities were legal because they were in a relationship.

54. The applicant now has been involved in a relationship for approximately 7 years and has a daughter from that relationship aged 6. The applicant currently lives with his partner and daughter.

55. The applicant reports that he does not smoke or use illicit drugs and drinks 3 standard drinks of alcohol per week. The applicant is currently studying. The applicant works 10 to 25 hours per week for a supermarket chain.

56. In late 2015 the applicant approached parents outside the primary school where his child attends and informed them that he was once charged with carnal knowledge with a girl aged 15. The applicant has told parents that he is a safe person and their children can come around to his house because he is no threat to children. It was alleged by other parents that he has attended school and given lollies to children.

57. It is also recorded in the documents produced to the respondent by the school that the applicant attended the school grounds before teachers were on duty and allowed the children to remove lollies from his pocket. The applicant was also observed discussing children’s awards in the kindergarten classroom with those children.

58. The applicant is reported to have responded well to a meeting which was conducted at the school concerning the issues raised by his disclosures about his carnal knowledge offence. The applicant said that the police and the principal told him that he “should keep his mouth shut about it”, however some parents overheard the reasons he gave for not being able to attend reading group. The applicant informed the Tribunal that he would rather the parents heard about his past from him. As the events have shown, this approach was not without consequences for the applicant.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

59. The applicant relies upon limited evidence to support his assertions that he does not pose a risk to children.

60. The principles which are relevant in assessing the likelihood of repetition of abusive behaviour in relation to children are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes of, and the ability to address, the risk of further threatening or sexual behaviours expressing the underlying psychological issues of a perpetrator of those offences, are relevant matters to be considered. The applicant’s treating psychologist stated that the applicant is genuinely interested and motivated in changing and has been attending counselling for a period of 2 years. The applicant has been diligent and reliably attends counselling sessions.

61. According to his psychologist, the applicant reported he has been suffering from anxiety and low mood. He attributes these feelings to believing he is ‘not good enough’ as a result of the way in which he was parented by his mother. The applicant specifically attributed this low self-esteem to the fact that he has had no contact with his father or a father figure, has changed schools many times, and has lived in a drug subculture where he was given marijuana by his mother at the age of 6 years and alcohol at the age of 7 years. The applicant also engaged in sexual activity from a very young age and has had minimal adult support while he was growing up.

62. The applicant’s psychologist has assessed him as suffering from a diagnosed psychiatric condition of: “300.02 Generalised Anxiety Disorder”.

63. His psychologist has also assessed his risk of reoffending using the Static 99R test and has rated the applicant in the ‘low’ risk category for reoffending relative to other adult male sex offenders.

64. The applicant’s psychologist states that the applicant has responded well to counselling and this has significantly reduced some of his anxiety symptoms.

65. If there were to be a repetition of the conduct, clearly that would have highly adverse impacts upon the safety and well-being of any children who might be the victims or witnesses to such conduct.

Any information given by the applicant in, or in relation to, the application

66. The applicant has provided information which he considers relevant and appropriate for the Tribunal to consider.

67. The personal references provided by the applicant are supportive of the application.

68. The applicant’s psychologist provided a detailed report and was cross-examined on 1 July 2016.

69. The applicant provided candid and responsive evidence when he was orally examined.

Any other matters that the Children’s Guardian considers necessary

70. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

71. The Children’s Guardian acknowledges that the applicant is in a stable relationship of some years duration and acknowledges the fact that he is a parent, has been turning his life around, and is assessed as a low risk of reoffending by his psychologist. The respondent also submits, however, that the applicant’s abusive and violent past, particularly the applicant’s past offences, remain of concern. In addition, it was submitted the applicant’s reported conduct outside the applicant’s child’s primary school in the previous year causes concern about the risk the applicant poses to children.

Consideration and determination

72. The applicant is now an adult of more mature years than when he committed the offences. The applicant has had the benefit of time to consider his offending behaviour.

73. The applicant submits that he has improved himself and worked hard at becoming a successful person. He is motivated to be a good parent for his own child. He is reported to have had no beneficial role models while he was growing up and upon whom he can model his own behaviour as a parent and adult with responsibilities towards children.

72. Until there is an acknowledgement by the applicant of his behaviour and he takes appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children. The applicant has acknowledged his behaviour and is on the appropriate path to address some of the issues raised by his tragic and neglect-filled formative years.

73. The applicant has been ‘convicted’ as defined under the Act of one serious offence which renders him a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the threats to kill made by telephone raise serious concerns about the applicant’s propensity for violence and attempts to intimidate vulnerable persons, and do not reflect favourably upon the applicant.

74. The behaviour, if repeated, would do harm to any victim. The paramount principle under the Act is the safety, welfare and well-being of children and, in particular, protecting them from child abuse. It must be assumed that any child victim or witness will suffer traumatic consequences or experience psychological harm by being subjected to abuse.

75. Despite the fact that he has been diagnosed by his treating psychologist with a significant psychiatric illness of generalised anxiety disorder, the applicant has never been referred to, or assessed or treated by, a psychiatrist with medication or other appropriate clinical treatment for this disorder. It is clear that the applicant has not addressed or resolved important issues in relation to his mother. The applicant has been prescribed Pristiq, an antidepressant medication, by his general practitioner. The evidence of the psychologist has been informative but it is clear that she is the treating psychologist rather than an independent expert with authoritative experience in assessing the type of mental illness and life trauma experienced by the applicant.

76. The applicant has expressed remorse for his previous offences. Remorse on its own is not, however, considered to be a factor that mitigates risk. The applicant is in the process of developing skills with which to deal with traumas and anxieties in his day-to-day life. As the incident in October 2015 outside the school illustrates the applicant responds well to intervention but lacks sufficient insight to independently address risk issues as they pertain to children, despite some years of counselling. The Tribunal commends the applicant for his diligence and desire to become a better person. There is, however, a lack of evidence of mitigating factors to control the applicant’s future behaviours. It is apparent to the Tribunal that the applicant still has some distance to travel before he arrives at the destination which he has chosen.

77. The legislature has proscribed behaviour which results in criminal convictions and classified it as sufficient to render the applicant for a clearance subject such a presumption as being a risk to children. That behaviour does not necessarily have to involve allegations or convictions relating to child victims. It is clear that offences listed in Schedule 2 of the Act involve crimes of violence, or have a sexual element or some aspect of violation of the personal integrity of another person, or serious harm to a living creature. However, the matters of concern raised about the applicant relate to a child victim. The Tribunal notes there was a significant age difference between the applicant and the victim.

78. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks that may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus, however it is not the only factor that must be considered.

79. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

80. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed towards children. The risk of relapse remains a significant possibility whilst the applicant continues to harbour unresolved psychological issues about his past relationships, and suffers from an ongoing mental illness, and is not undertaking more intensive or specific psychological or psychiatric interventions.

81. It is acknowledged that the onus on the applicant to rebut the presumption that he poses a risk to the safety of children is an onerous one. The evidence received by the Tribunal establishes, however, that this onus has not been discharged and the Tribunal thus cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

84. In all the circumstances, on the balance of probabilities, taking into account all the considerations required under section 30 (1) of the Act, and having regard to the material before the Tribunal, it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children Check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.

85. The order of the Tribunal is that:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 November 2015 is refused and dismissed.

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: 26 October 2016