CGN v Children's Guardian

[2016] NSWCATAD 138

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGN v Children’s Guardian [2016] NSWCATAD 138
Hearing dates:	6 May 2016
Date of orders:	06 July 2016
Decision date:	06 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member S Davison, General Member
Decision:	(1) The decision of the Respondent to refuse a Working with Children Clearance is set aside. (2) The Applicant is granted a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes (Sentencing Procedure) Act 1986 Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 NSW Family Law Act 1975 (Cth)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BQE v Children’s Guardian [2015] NSWCATAD 89 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 The Commissioner for Children and Young People v V [2002] NSWSC 949 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFC v The Children’s Guardian [2014] NSWCATAD 90 BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children’s Guardian (no 2) 2014 NSWCAT 164 Brigenshaw v Brigenshaw (1938) 60 CLR 336 Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Category:	Principal judgment
Parties:	CGN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: Santone Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510717
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. The Applicant referred to as “CGN” is a single 66 year old man born in the former Yugoslavia. He married in 1971 and migrated to Australia with his wife in 1973. They had one child, a son born in 1990. He and his wife separated in 2001 and the Applicant has not seen his wife or son since then.

2. The Applicant was working as a bus driver for a private company from September 1981 and, in July 2014, was asked by his employer to obtain a Working with Children Check (WWCC) clearance in order to comply with the relevant legislative requirements. He made this application to the Respondent on 3 July 2015 and was permitted to continue working while his application was being processed. Section 14 and 15 of the Child Protection (Working with Children) Act 2012 (the Act) provide that an applicant for a WWCC clearance is subject to a risk assessment requirement if any matters specified in Schedule 1 of the Act apply to the person (trigger offences). The Respondent identified two trigger offences that fell within Clause 1.1 (b) of Schedule 1.

3. Section 18(2) of the Act provides that the Respondent must grant a WWCC clearance to a person who is subject to a risk assessment unless it is satisfied that the person poses a risk to the safety of children. On 16 October 2015 the Respondent notified the Applicant that a WWCC clearance had been refused. His employment as a bus driver was subsequently terminated.

4. The Respondent’s Reasons for Decision state that a WWCC clearance was refused due to “the risks stemming from your alleged violent behaviour towards women between 1977 and 2004, and the lack of any mitigating information, it has been determined that you pose a risk to the safety of children”. The Applicant lodged an application for review on 13 November 2015 pursuant to s 27 of the Act.

5. A Hearing was held on 6 May 2016 in Sydney. The Applicant was present and the parties were legally represented.

6. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the Applicant without leave of the Tribunal.

7. The Tribunal must decide what is the “correct and preferable” decision having regard to the material before it, including material which may not have been before the Respondent: Administrative Decisions Review Act 1997 (NSW) s 63 (1). The Tribunal may affirm, vary, set aside or make a decision in substitution for the decision under review.

Do the 2015 amendments to the Act apply?

8. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. These amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and

2. It is in the public interest to make the order.

9. Written submissions made by both parties argued that the amendments should not apply to these proceedings. The Tribunal also found that the transitional provisions contained at Schedule 3 have the effect that the amendments do not apply to an application made to the Respondent before the amendments came into effect. As the Applicant lodged his application for a WWCC clearance before the amendments commenced operation, the amendments do not apply to these proceedings.

The object of the Act

10. The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have WWCC clearances: the Act, s 3 and s 8. Child related work is defined by s 6 of the Act and there is no dispute that the Applicant’s job as a bus driver requires him to obtain a WWCC clearance.

11. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. The Act does not define “abuse” however guidance can be drawn from other legislation aimed at protecting children such as the Family Law Act 1975 (Cth), where the “best interests” of a child include the primary consideration of the “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”: Family Law Act 1975 (Cth) s 60 CC (2) (b). This supports the view that the concept of protection from “child abuse” also includes protection from actions which are likely to cause psychological harm.

12. The object of the Act is to eliminate risk of harm to children. The Tribunal is to determine whether the Applicant poses a risk to the safety of children having regard to the factors set out in section 30 (1) of the Act (as it was at the time of the Applicant lodging his application to the Respondent for a WWCC clearance).

13. The word “risk” in the Act is construed to mean a risk that is “real and appreciable”. In BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word “risk” in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW):

What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’: at [42]

14. The Tribunal has followed this meaning of risk: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69; BFC v The Children’s Guardian [2014] NSWCATAD 90; BFX v Children’s Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164.

15. The Tribunal’s jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The Applicant must also fully disclose to the Tribunal any matters relevant to his application for a WWCC: section 28 (5) of the Act.

The material before the Tribunal

16. The Tribunal was provided following material to consider in determining this application:

1. Bundle of documents filed by the Respondent on 16 December 2015 (section 58 documents);

2. Supplementary section 58 documents filed on 8 February 2016;

3. Affidavits of the applicant dated 22 January 2016 and 1 March 2016;

4. Affidavit of RI dated 22 January 2015;

5. Affidavit of Patrick Sheehan dated 15 March 2015 attaching a psychological report dated 25 February 2015;

6. Outline of Applicant’s submissions dated 11 April 2016;

7. Applicant’s further written submissions dated 20 May 2016;

8. Applicant’s further written submissions dated 26 May 2016;

9. Outline of Respondent’s submissions dated 8 February 2016 and 5 May 2016;

10. Respondent’s supplementary submissions dated 29 March 2016; and

11. Respondent’s supplementary submissions dated 20 May 2016.

17. On the day of the Hearing, oral evidence was given by the Applicant with the assistance of an interpreter. Mr Sheehan also gave oral evidence in person.

18. At the Hearing the Applicant’s solicitor made submissions to exclude certain evidence before the Tribunal on the basis that it was highly prejudicial to the Applicant and would deny him procedural fairness. This evidence included documents with respect to the trigger offences and to another charge in 1975 that was withdrawn and did not proceed to trial. The Applicant cited Commission for Children and Young People v FZ [2011] NSWCA 111 with reference the Tribunal’s discretion to act on material which is rationally probative but in doing so it must determine, in all the circumstances, whether it is proper to act on such material, and to act fairly towards the parties. The Respondent opposed the exclusion of this evidence on the basis that this evidence formed part of the decision made by the Respondent and the Tribunal could afford it the appropriate weight in all the circumstances.

19. The Tribunal held that it has to consider the evidence presented by the parties in light of its obligations to consider the factors set out in section 30(1) of the Act. To the extent that some of the evidence is distant, unsupported and untested, if the evidence is relevant, the Tribunal could accord it the appropriate weight in determining whether the Applicant poses a risk to the safety of children.

20. The burden of proof in the finding of facts and determining whether the Applicant poses a risk to the safety of children is on the balance or probabilities. The High Court in Brigenshaw v Brigenshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test. This was affirmed by Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court said “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. Guidance is provided by section 140 (2) of the Evidence Act 1995 (NSW), which establishes that where a court is required to make a decision based on the balance of probabilities, it may take into account the nature of the course of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.

History of criminal charges that led to the refusal of a WWCC clearance

21. The following matters were brought to the Respondent’s attention in determining the Applicant’s request for a WWCC clearance:

1. Charge of rape in November 1975 (trigger offence 1);

2. Charge of sexual intercourse without consent in 1981 (trigger offence 2);

3. Charge of common assault in August 1975;

4. Apprehended Violence Orders (AVOs) made during the period 1999 and 2004; and

5. Firearm offence in 2000.

Trigger offence 1 – incident in November 1975

22. The Applicant was charged with the rape of a 21 year woman, alleged to have occurred in November 1975 at a restaurant in a suburb of Sydney. The alleged victim did not know the Applicant when he was said to have approached her in the restaurant. She eventually agreed to let him sit with her and they talked and then danced together. At some point later in the evening it was alleged that the Applicant followed her to the toilet and raped her.

23. The Applicant’s Affidavit of 22 January 2016 stated that he did not remember being charged in relation to this incident. He does not know the identity of the complainant and has only a “vague” recollection of going to court around that time. He said he never had sexual intercourse with anyone without consent. At the Hearing the Applicant could not shed any further light in relation to this incident. He did not recall the restaurant and when asked if he ever had sex in a public toilet he replied “never in my life”. He could not remember being interviewed by the Police. He could not recall any specific details of attending Court.

24. The document obtained by the Respondent from the Police at page 25 of the section 58 documents appears to be a brief prepared by the Police in relation to this event. It states that the Applicant was legally represented by “Mr Menart” who entered bail of $500 for the Applicant. In cross examination the Applicant said he could not remember this. This document refers to the Applicant being interviewed by the Police and he said to them that he did have sex in the toilet but it was consensual. The Tribunal did not see the record of interview of the Applicant by the Police. Under the heading “OBSERVATIONS”, it describes the strengths and weaknesses of the Crown case against the Applicant and notes that the Crown case has “quite obviously a lot of weaknesses”. A trial was held in August 1977, and the Applicant was found not guilty by a Judge in the Supreme Court in Sydney. The Tribunal has not seen the transcript of this trial or the reasons given for the Applicant’s acquittal.

25. In the Applicant’s Affidavit of 1 March 2016 he responds to the reference to him saying to the Police that he had sex in the toilet but it was consensual. It states that he finds it “very hard to believe” that he would have sexual intercourse in the toilet of a restaurant. At the Hearing, the Applicant maintained that he did not have sex in a public toilet. The Applicant’s solicitor made submissions about the lack of corroborating material about this incident and that it is not possible to test the veracity of any of the matters contained in the Police brief, and as such this document should be afforded little or no weight.

26. It is undisputed that a complaint of rape was made against the Applicant in relation to an incident said to have occurred in November 1975, and this formed the basis of a charge of rape against him. In relation to whether the Applicant admitted to Police having consensual sex in the toilet, he does not recall making this statement and denies he would ever engage in such conduct. These are serious allegations and in light of there being no corroborating material, the Applicant’s acquittal and his adamant affirmation that would never have had sex in a public toilet, the Tribunal cannot on the balance of probabilities, make any positive findings as to whether this incident occurred or the Applicant’s conduct in relation to it.

Trigger offence 2 – incident in July 1981

27. The Applicant was charged with sexual intercourse without consent following an incident alleged to have occurred on an evening in July 1981 in a remote location in Sydney.

28. The Respondent obtained a Crime Information Report dated 12 August 1981 (at tab 9 of the section 58 documents) which describes the complainant as 16 years old. It states that the Applicant was visiting a woman at her home and the complainant was also there. He asked the complainant to go with him to visit her father’s restaurant. She refused but at about 11 pm, the other woman put her son to bed, and the Applicant allegedly grabbed the complainant’s wrist and said she was coming with him “whether you like it or not”. He allegedly dragged her into his vehicle and drove along the Hume Highway and turned off somewhere in the Cabramatta area and parked on a dirt road. He then allegedly forced her into the back of the car and removed her jeans and panties and had sexual intercourse with her against will. They then went together to a restaurant in Cabramatta but she left and went to Cabramatta Police Station.

29. There is a record of interview with the Applicant (at page 31 of the section 58 documents) dated the day following the incident. It notes that a government interpreter was present. It states that the Applicant agrees he was at the woman’s home, and that he and the complainant had a conversation about going to her parent’s restaurant. He says that she wanted to go to talk to her mother about some problems. He denied forcing the complainant to come with him. He said on the way they stopped in the parking area of a Kentucky Fried Chicken shop and had sexual intercourse with the complainant’s consent in the back of his car. He said they then went to another restaurant to make a telephone call to see whether the restaurant in Newtown (presumably the parent’s restaurant) was still open. He says they were sitting having a drink and then he went to make the call. When he got back they got up to the pay the bill and she was waiting for him but then she disappeared and he was unable to find her. Some other patrons said she had gone and “she left nicely and nobody mistreated her so they said not to worry”.

30. The Applicant’s Affidavit of 22 January 2016 states that the complainant was his girlfriend at the time and they had been dating for approximately 1 to 2 months before the incident. He describes her as Serbian and that she did not tell him her age but was under the impression she was over 18 years of age because he saw her drinking alcohol. At the Hearing the Applicant maintained that the complainant was his girlfriend and the incident involved consensual sex in his car. Under cross examination he explained he had a girlfriend whilst he was married and his relationship with the complainant was problematic because she asked him for money. After the night of the incident he said their relationship ended. He was asked whether he wondered why she made these allegations against him. The Applicant said he didn’t know why. In his Affidavit he said that he was “shocked” by the complaint against him. The Tribunal found this aspect of the Applicant’s evidence troubling because it gave the impression that the Applicant was not being entirely forthcoming about his relationship with the complainant.

31. The Applicant was, however, found not guilty of this charge by a jury under the criminal standard and the Tribunal has not seen the transcript of proceedings or any material tendered at the trial. The Applicant provides an explanation of this incident that is plausible and his evidence to the Tribunal is consistent with the historical evidence he gave at the time that the Tribunal has seen. The Tribunal is not able to test the Applicant’s version of events with the version provided by the complainant.

32. It is undisputed that a complaint was made following an incident involving the Applicant. The historical material that the Tribunal has seen must also be weighed against the Applicant’s evidence before the Tribunal. It is possible that the Applicant may not have been entirely forthcoming about his relationship with the complainant; however on the evidence that is available the Tribunal concluded that no positive finding on the balance of probabilities can be made as to whether the Applicant sexually assaulted the complainant on the night in question. The Tribunal also accepted the Applicant’s evidence that he was not aware that the complainant was 16 years old at the time of the incident.

Charge of Common Assault – incident in August 1975

33. The records obtained by the Respondent allege that in August 1975 the Applicant went to a woman’s home in Redfern with another man she knew as “M”. The woman knew M through her friend “V”. They were there because the Applicant was interested in buying her car. It was prearranged for the four of them to go to a hotel in Surry Hills. The Applicant went with the woman in her car and the other two drove separately. The woman had reservations about the Applicant’s intentions towards her but at the end of the evening, after also going to the Pizza Hut together, she offered to drive him home. On the drive to his home in the outer suburbs of Sydney, it is alleged that the Applicant made a sexual advance which she rebuffed. The Applicant asked her to stop and he grabbed her right leg around the ankle, pulling and twisting it. She says “it hurt that much I thought he had broken it”. She was not sure if the Applicant threatened to kill her but she was “petrified, I didn’t know what he would do next”. She said “I know some Yugoslavs carry knives and have very bad tempers”. She said “I knew I had no choice but to do what he wanted and give in to him. He was still pulling at my slacks, I was so frightened and I didn’t want him to hurt me anymore so I undid my slacks and he pulled them right off. My panties came off with my slacks. I was still crying”. Afterwards he drove her car to his place. On the way he said “me sorry, me sorry, me good boy, me like you, you good girl”. After he got out of her car she drove to a petrol station and asked directions to the nearest Police station because she had been raped “by a wog”. She drove to Fairfield Police station and spoke to a Police officer. The next day she says she went to Rachel Forster Hospital in Redfern because her leg was very sore.

34. There is a record by a Detective Senior Constable (at page 15 of the section 58 documents) who interviewed the woman that night at Fairfield Police station. It refers to her saying she was not injured and did not feel threatened, only that the Applicant had taken advantage of her. This was not consistent with the statement she gave to other Police officers at Waverley Police Station 5 days later (at page 17 of the section 58 documents). The Fairfield Detective notes in his report there is “obviously no evidence to support a complaint of rape”. It says “she agreed a complaint of rape could not be substantiated and left the station desiring no further action”.

35. This Fairfield Detective Senior Constable made a statement (at tab 10 of the section 58 documents) which contains quotes from the interview with the woman. There are some inconsistencies with the report he made as it includes quotes from her that she was frightened of the Applicant. It states that she said she was not threatened or assaulted but it refers to the Applicant twisting her leg. It says “you have told me that he said nothing that would indicate that he would do you any harm. He was not armed with a knife or other weapon, with which to threaten you. Why do you wish to make a complaint of rape against this man? She said ‘because he frightened me into it’. I said ‘how did he frighten you?’ She said ‘it’s something I can’t explain. You wouldn’t understand.’ I said ‘did he make any threats of violence to make you afraid of him?’ She said ‘not really’”. The statement goes on to quote the complainant saying “I feel silly now. I shouldn’t have driven him home”. The statement concludes with “I said ‘we are fully prepared to investigate this matter for you’. She said ‘no, there was no one else there and it’s my word against his. It’s not worth the trouble.’ I said ‘from that I take it, you do not wish to make an official complaint’. She said ‘that’s right’”.

36. A document addressed to the Attorney General from the Crown Prosecutor’s Chambers (at tab 8 of the section 58 documents) recommends a Bill not be filed. It states that the Applicant was committed for trial from Fairfield Court of Petty Sessions on a charge of common assault. It refers to the complainant going to Waverley Police because no action had been taken by Fairfield detectives. It notes that the woman “has now forwarded a request that the matter not proceed due to the state of her health and the adverse effects the proceedings would have on her”. This was accompanied with a medical certificate which contained doctor’s advice that the complainant’s condition could deteriorate if the complaint continued. The Crown agreed the matter should not proceed.

37. The Applicant’s affidavit of 22 January 2016 states that he does not recall being contacted or charged by the Police in relation to this incident and does not know who the complainant was. In trying to explain why he has no recollection at all of this event he said had been only in Australia for 2 years and his understanding of English and the legal system was very limited. He reiterated that he would not have had sexual intercourse with someone without first obtaining their consent. In his subsequent Affidavit of 1 March 2016, he adds he did not attend a flat in Redfern on the date in question for the purpose of inspecting a motor vehicle for purchase. He said he did not know any of the people referred to in the complainant’s statement.

38. The Applicant told the Tribunal in 1975 he moved to Merrylands from Canley Vale. At that time he was driving an Austin 1800 and then he owned a Holden Premier. He remembers these details because he did not own many cars around this time. He said he only bought cars from a car yard and at the time in question had no need to buy a car.

39. The Respondent submitted at the Hearing that obtaining evidence from complainants in matters involving historical allegations of sexual assaults should be considered in the context of potentially re-traumatising them so many years after the event. The Tribunal has some sympathy for this view but nevertheless must place appropriate weight on the evidence it has at hand in considering whether particular facts can be established on the balance of probabilities.

40. It is undisputed that a complaint was made about the Applicant in relation to an incident said to have occurred in August 1975. The material contained in the s 58 documents in relation to this incident suggest that the complainant went to the Police on two separate occasions in one week, and on each occasion provided a detailed and consistent account of being assaulted by the Applicant. The report made by the Detective at Fairfield also suggests that she was struggling to understand the legal ramifications of what she said had happened to her. The historical documents about this incident are however weighed against the Applicant’s evidence to the Tribunal. He denies any knowledge of this event. The charge did not proceed and the complainant’s evidence was not presented or tested in Court. Although the complainant’s version of events as contained in her police statement could have happened as she described, the Tribunal is not able to test the veracity of the complainant’s version and unable to determine whether this evidence can be relied upon to make a positive finding. There is also no corroborating material that might assist in this regard. Given the serious nature of this matter, the Tribunal is not satisfied on the evidence before it that it can make any positive findings about the conduct allegedly attributed to the Applicant in relation to these matters.

Apprehended Violence Orders

41. In refusing a WWCC clearance the Respondent also took into account:

1. Apprehended Violence Orders made in 1999, 2000 and 2004 against the Applicant for the protection of his ex-wife and son; and

2. Apprehended Violence Order (AVO) made in 2002 against the Applicant by a former girlfriend.

42. The Respondent submits these AVOs were made for the protection of persons with whom the Applicant had a domestic relationship, and included an allegation that the Applicant struck his ex-wife with a belt in the presence of his son. In relation to the 2002 AVO made in favour of the Applicant’s girlfriend at the time, this is accompanied with an allegation of assault resulting in some minor injuries.

43. Six AVOs were made from November 1999 to July 2004 in relation to the Applicant’s ex-wife and son. The first AVO was precipitated by an incident on 2 September 1999. The Police records state that the Applicant’s ex-wife alleged that the Applicant had been drinking and became abusive towards her. It was alleged that the Applicant picked up a belt and hit his ex-wife twice across the shoulders with it. When the Police arrive they say they could smell alcohol on the breath of the Applicant’s ex-wife, but not on the Applicant. Parramatta Local Court was contacted in relation to making a Telephone Interim Order but this was refused on the grounds of “no confirmed threat of violence towards the victim the victim only wished to leave the premises and there was no immediate danger to the victim”.

44. The Applicant’s ex-wife and their son went to a refuge. A notification to Family and Community Services was made on 22 September 1999. There is a file note in the section 58 documents that records a phone conversation which suggests that the Applicant’s ex-wife and son were scared that the Applicant would find them, and were being assisted to find alternative accommodation and discussing the possibility of obtaining an AVO.

45. At the Hearing the Applicant gave evidence about the incident on 2 September 1999. He agreed there was an argument between himself and his ex-wife. This argument precipitated the end to their relationship. He denied that he had been drinking alcohol that day. He says that it was his ex-wife who had been drinking. This is consistent with the Police report following their attendance at the scene. He says he had been working until about 5.30pm, came home and was angry about her drinking because he thought it prevented her from properly taking care of their son. He denied hitting anybody with his belt. He said when the Police arrived they did not speak to him but took his ex-wife and their son away. He recalls the Police speaking to his son. He believed at the time that his son would verify that his mother had been drinking.

46. The Applicant’s Affidavit states that a short time after this incident he was contacted by a Police officer attached to Cabramatta Police Station and told the Police were not proceeding with charges or a Domestic Violence Order against him. It was not until later in March 2000, when he attended court following an application for parenting orders (which he made in late September 1999) that he found out his ex-wife had moved to Coffs Harbour with their son and she had applied for an AVO against him. He believes he consented to the AVO on the advice of the solicitor who was helping him with the family law application. The Applicant was asked at the Hearing about the Orders made to spend time with his son. He understood he was allowed to send letters, cards and presents, which he did but they were returned to him, except for a gold chain, which he said his son appeared to have kept. He has not seen his son since they left in September 1999 but he is hopeful that maybe they will some day in the future.

47. The Tribunal has not seen a copy of the AVOs made against the Applicant in favour of his ex-wife and son. It does appear to have been made from a private application and not by the Police. The Tribunal accepts the Applicant most probably consented to the making of the AVOs even though he strongly denied the allegations made by his ex-wife in relation to the incident in September 1999. The further AVOs that were made, were not based on any new complaints made against the Applicant by his ex-wife. There is no suggestion or evidence that the Applicant was ever violent or abusive towards his son. There is also no suggestion that the Applicant breached any of these AVOs.

48. An AVO was made on 2 April 2002 in favour of a woman (SS), with whom the Applicant was in a relationship at the time. The Applicant was charged with common assault arising from an incident that was alleged to have occurred in late March 2002. The Police report contained in the section 58 documents states that the Applicant and SS became involved in a verbal argument about the Applicant’s drinking. It states the Applicant kicked SS in the right knee with his left foot. SS tried to leave the premises and the Applicant is alleged to have hit SS on the left side of her neck with his right hand. The Applicant is said to have grabbed SS by the arms in an attempt to move her out of the bedroom where they were standing. SS was shaking and tried to get away. The Applicant allegedly pushed her out of the door continuing to threaten her. SS was noted to have had red markings on her arms and two fingers on her left hand were swollen. The Applicant was arrested and taken to Cabramatta Police Station and charged with assault. Bail was refused and he was remanded to see the Magistrate at Liverpool Court.

49. In his Affidavit of 22 January 2016, the Applicant said he had an argument with SS about their relationship but does not remember what they said to each other. At the Hearing the Applicant denied the argument was about his drinking. He said it lasted about an hour and he wanted her to leave his place. He denied physically or verbally assaulting SS at any time during the argument. He denied grabbing her by the arms or hitting her on the side of her neck. He denied pushing or threatening her. He denied she had red markings or that her fingers were swollen. He recalls going to Liverpool Court but was not clear about what happened after that.

50. He said SS came to his house a couple of weeks later and said “sorry about this problem, I want to drop the AVO”. He went with SS to Liverpool Court and she told a police officer that she did not want to proceed with the complaint. The Applicant states he was sitting at the back of the court when he thinks the complaint against him was dismissed. He states he was not aware that a final AVO was made. He does not recall receiving a copy of an interim order, he was not legally represented and, to the best of his knowledge, did not receive a copy of the final AVO.

51. The Tribunal has not seen a copy of the final AVO made in favour of SS and there is no evidence that the application was contested. There is no conviction recorded against the Applicant in relation to a charge of assault. There is also no suggestion that the Applicant breached this AVO. The only evidence of SS’s alleged injuries is what is described in a document obtained from the Police prepared by the Operational Information Agency, Court Services, which is dated 26 September 2014, following a search of the records maintained by that Unit.

52. Evidence of the extent of SS’s injuries appears to have been drawn from a historical Police record that the Tribunal has not seen. There is no other evidence of SS’s injuries or any evidence that corroborates her initial complaint. This is weighed against the Applicant’s evidence to the Tribunal that SS withdrew her complaint and that he did not cause SS any injuries or see SS with any injuries. He described a somewhat tumultuous relationship with SS. There were no children involved in the relationship. An AVO was made but it is not known what the terms of this Order were or the basis on which the Order was finally made. On the evidence available to the Tribunal it is not satisfied that a finding can be made on the balance of probabilities that the Applicant was violent towards SS or caused her any injuries.

Firearm offence

53. On 16 May 2000, a charge of Possess Prohibited Weapon was made against the Applicant, which was discharged pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1986. The Respondent concedes that with the benefit of further evidence provided by the Applicant about this matter, it falls at the lower end of seriousness. The Applicant provided evidence to the Tribunal which explains how he came to be in the possession of some the prohibited items, which includes evidence from a man (BP) who says he gave some of these items to the Applicant to fix. Under cross examination the Applicant could not recall why he had other items in his possession. He said he “can’t remember these things”.

54. The Tribunal had regard to the fact that this offence occurred but, in all the circumstances, considered that it did not have a significant bearing on the assessment of the Applicant’s suitability for a WWCC clearance.

The Applicant’s evidence in these proceedings

55. The Act imposes a duty on the Applicant to disclose all relevant matters: s25 of the Act. The Tribunal found the Applicant’s oral evidence at times guarded and not forthcoming. His recollection of critical events was notably poor. Some of these events did, however, take place over 40 years ago. Given the seriousness of the two incidents in 1975, especially in relation to the November 1975 matter (trigger offence 1) which led to the Applicant engaging a solicitor to represent him and bail being posted for him, it is noteworthy that the Applicant has so little recollection of the incidents and of the court proceedings.

56. The report of Mr Sheehan, psychologist, referring to an interview he conducted with the Applicant, states that the Applicant’s “chronology of events appeared accurate, but his memory of the historical events related to the current application was notably poor”. He opined that the Applicant is “a somewhat unreliable historian in examining the historical charges and not surprisingly, given the circumstances, seeks to portray himself in a positive light”. He also notes that the Applicant was “cooperative and tried to answer all the questions put to him, but there was often a lack of depth in his response, which I took to be at least partly accountable to his general level of cognitive sophistication and basic English skills”.

57. The Applicant appeared to the Tribunal to have a very limited understanding of the legal processes in relation to the criminal charges against him, the AVOs and his family law matter. This extended to the Applicant appearing at times to not follow or understand what was being asked of him in these proceedings, despite the assistance of an interpreter.

58. The Respondent questioned Mr Sheehan about his assessment of the Applicant’s truthfulness in these proceedings. Mr Sheehan’s evidence was that he assessed the Applicant to be cooperative and did not consider him to be deliberately deceptive or misleading.

59. In considering the totality of the evidence given by the Applicant, on balance the Tribunal found the Applicant to be a truthful and reliable witness.

Factors the Tribunal must take into account

The Applicant’s history of criminal charges and seriousness of the offences

60. The decision to refuse a WWCC clearance states that the Applicant’s “criminal record outlines two trigger records from 1977 to 1982 of sexual assaults against females, one of whom was a child. You also have a charge of Unlawful Assault from 1976 which includes another incident of alleged sexual violence against an adult woman”.

61. The trigger offences are serious and required the Respondent to conduct a risk assessment, regardless of whether the Applicant was convicted of either charge. The Respondent’s decision stated that “although you were not convicted of any of the charges, you have three records of alleged sexual violence of a similar nature against three different females over a period of 5 years”. The Respondent also took into account the AVOs, which were made for the protection of persons with whom the Applicant had a domestic relationship.

62. The Tribunal agrees that of the allegations against the Applicant in the trigger offences and the further criminal charge in 1975 are of a serious nature.

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

63. The first trigger offence and the second incident in 1975 occurred 41 years ago. The second trigger offence occurred 35 years ago. The firearms offence was 17 years ago.

64. The last AVO was imposed 12 years ago. There is no record of any breaches of these AVOs and the Applicant has had no contact with the criminal justice system since then.

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

65. At the time of the first trigger offence the Applicant was 25 years old and he was 31 years old at the time of the second trigger offence. He was in his late 40s or early 50s at the time of the AVOs.

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

66. The age of the alleged victim of the first trigger offence was 24 years. The age of the alleged victim of the second incident in 1975 was 19 years old. The age of the alleged victim of the second trigger offence was 16 years old.

67. In relation to the AVOs, SS was 31 years old and it is not known how old the Applicant’s ex-wife was at the time. His son was between 9 and 14 years old.

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

68. In relation to the alleged incidents in 1975 the Applicant states that he had no relationship, and indeed does not know the identity of the complainants. It is understood by the Tribunal that they were relatively close in age to the Applicant.

69. In relation to the second trigger offence the Applicant stated that the alleged victim was his girlfriend at the time. Although she was 16 years old at the time, he says did not know and thought she was older. In reality their difference in age was 15 years.

70. SS was 21 years younger than the Applicant. The Respondent understood that the Applicant’s ex-wife was close to his age. His son was born in 1990.

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

71. Apart from the Applicant’s son, the Tribunal accepted the evidence of the Applicant that he was not aware that the alleged victim of the incident which occurred in 1981, was 16 years old.

The person’s present age

72. The Applicant is 66 years old.

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

73. The Applicant does not have a criminal record, except for the firearm offence which was disposed of without conviction.

74. The making of an AVO by consent does not necessarily mean that the allegations are established as a matter of fact. In the case of the allegations made by his ex-wife, the conduct complained of was not substantiated at the time the complaints were made, and the Applicant consented to the making of the AVOs for reasons including not wanting to damage his chances of obtaining Family Law Court orders to be allowed contact with his son. The Applicant was acquitted of both trigger offences and the third charge did not proceed to a trial.

75. Mr Sheehan’s report finds that the Applicant’s “history of charges for sexual violence may not be considered chronic or diverse (limited to a five year period over the life spanning sixty-five years). In relation to the AVOs, Mr Sheehan notes that the Applicant has “no convictions for interpersonal violence but his history of ADVO may raise some questions of hostility and inability to resolve conflict in relationships”. Mr Sheehan considered the Applicant’s “relationship history suggests he is unable to manage conflict or relationship dissolution without hostility”. Mr Sheehan also considered that the Applicant has never been charged with a breach of an AVO which suggests “some capacity to respond to boundaries placed on him”.

76. Since the making of the last AVO some 12 years ago, the Applicant has had no contact with the criminal justice system. Since the charge in relation to the incident in 1981, some 35 years ago, no similar charges or complaints have been made against the Applicant.

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

77. The Respondent submits that it is not possible to assess the likelihood of repetition of the offences and the conduct of the Applicant which led to the refusal of a WWCC clearance. The Respondent draws attention to the Applicant’s lack of recall of many of the details in relation to the offences and is therefore unable to indicate whether he has insight into those matters. In relation to the AVOs, the Respondent submits there is no indication that the Applicant accepts any responsibility or acknowledges any conduct that could warrant the making of those orders against him. The Respondent’s decision states “you have not demonstrated any explanation for the alleged incidents, nor have you shown willingness to accept responsibility for your role in the events. Additionally, you have not demonstrated any insight into the seriousness of the records”.

78. At the Hearing the Applicant conceded that the charges against him were serious, but he strongly denied any culpability in relation to each of them. He gave an explanation for the second trigger offence and for the incidents which led to the making of the AVOs. In relation to both incidents in 1975, he said he had no recollection of them.

79. The only matters that have some involvement with children are the charges relating to the second trigger offence in 1981, when the alleged victim was 16 years old (but the Applicant was unaware of this), and the AVO made in favour of his son and ex-wife from an incident in September 1999.

80. The Tribunal found the Applicant did appreciate that the allegations made against were serious and, if they were true, would be sufficient cause to deny him a WWCC clearance. The Applicant demonstrated to the Tribunal that he is aware of conduct that would be seen to pose a risk to the safety of children.

Any information given in, or in relation to, the Application

81. In addition to his evidence and that of Mr Sheehan, the Applicant provided references and statements from work colleagues in support of his contention that he does not pose a risk to the safety of children.

Any other matters that the Children’s Guardian considers necessary

82. The Respondent provided written submissions in response to submissions made by the Applicant’s solicitor in relation to the Applicant’s objections to some of the material contained in the section 58 documents.

Real and appreciable risk to the safety of children

83. Mr Sheehan’s psychological report said that as the Applicant “has never been convicted of a sexual offence, it may be of questionable validity to assess him against the known risk assessment parameters…in examining (the Applicant’s) risk to children we can be guided by clinical judgment, but with the caveat that without an established history of sexual offending, we are applying principles that would normally not be applied”. Mr Sheehan was asked to elaborate on this at the Hearing and the Tribunal had some difficulty following his explanation. He said that while he did not specifically take into account that there were 3 separate charges over 5 years he said he did look at “chronicity”. He also said the Applicant was not a very “reflective person” and offered the view that, with the exception if intra-familial offending, “denial is not a risk factor to recidivism”.

84. When asked about his assessment of the Applicant’s conduct in relation to the AVOs, Mr Sheehan noted that it may only infer a problem with intimate relationships. He was asked what weight these matters were given in his assessment of whether the Applicant posed a risk to the safety of children, and particularly in the context of the tests he used to inform this assessment. He said that the AVOs carried little or no weight in assessing the Applicant’s risk to the safety of children because they did not involve any sexual risk towards children and the conduct that precipitated the making of the AVOs is confined to the Applicant’s intimate relationships.

85. The Respondent submitted to the Tribunal that Mr Sheehan appeared to have taken the Applicant’s self-report on these matters at face value and did not appear to have challenged the Applicant about the circumstances of the AVOs including the allegations of physical assault by each woman. At the Hearing Mr Sheehan explained that as there was no conviction of any violence, the allegations made in the context of the AVOs were untested and so, at its highest, it pointed to problems with intimate relationships.

86. The Tribunal had some difficulty understanding the explanation given by Mr Sheehan about the theory underlying the tests he used in assessing the likelihood of any repetition of offending conduct. It did, however, appreciate that in the case of the Applicant and his limited capacity to engage in the detail of these matters, and in circumstances where none of the complaints have led to a conviction, Mr Sheehan was faced with a difficult task in conducting this assessment. Mr Sheehan’s overall risk assessment states that the examination of the Applicant against the two tests he administered revealed that he did not meet the characteristics associated with an elevated risk of reoffending as identified in the literature. He said:

“...of particular mitigating relevance as his advanced age (men over the age of 60 years have a far lower risk of sexual aggression or violence unless cognitive decline is a pressing issue) and his 34 years of working in a child-related employment unsupervised in the community with no further complaints of sexual aggression. In my expert opinion, the overall totality of information would suggest that his risk to harm children (through sexual aggression or violence) would be considered very low”.

87. Mr Sheehan’s opinion is that he is “unable to conclude that there is a real and appreciable risk to children”. He goes on to say that the Applicant “has few features associated with risk of reoffending and a number of compelling protective factors”. He states “in my expert view that any residual risk is low and not specific to children”.

88. This is a finely balanced matter. There were three separate complaints of a sexual nature made against the Applicant in a period of 5 years, and indeed there were two in one year. When two of the complaints were tested in court he was found not guilty under the criminal standard. This is not determinative of the matter but it does reduce the weight that can be placed on these allegations as an indication of future risk: BQE v Children’s Guardian [2015] NSWCATAD 89. The third charge of common assault did not proceed to a trial. In relation to all three complaints, seen separately and together, the Tribunal was unable, based on the available evidence, to make any positive findings of fact in relation to them.

89. These three offences were alleged to have occurred more than 35 years ago when the Applicant was a young man and there have been no similar complaints made against him since then. After a gap of some 18 years, the AVOs occurred in a domestic context and the making of the last AVO was 12 years ago.

90. Weighed against this history of charges which date back decades is the fact that the Applicant has not had any complaints made against him since then.

91. The Applicant provided the Tribunal evidence from ‘RI’ in a statutory declaration dated 3 November 2014 and an Affidavit dated 22 January 2016. RI states that he has known and worked with the Applicant since 1983 and the Applicant has been a “valued close family friend”. He is clearly a supporter of the Applicant who describes him as a “kind hearted, hard-working individual”. He says “I have never known him to show any signs of violent or aggressive behaviour”. RI said the Applicant has spent time with his son “on many occasions” and that he would have no hesitation asking the Applicant to look after his son if the need arose.

92. In a more objective sense, RI also states that the Applicant was required to drive school routes, both in the morning and afternoon 5 days a week. He states that he is not aware of any complaint made against the Applicant as a result of his conduct towards children or any other passenger. This is supported by other evidence from the Applicant’s former employer. Attached to the Applicant’s Affidavit of 22 January 2016 is a Professional Reference from an Assistant Depot Manager at Westbus. It says “I was his point of contact manager and dealt with him on a daily basis”. It says the Applicant has “conducted himself in a very professional manner and has an impeccable record in his position as a bus driver with students and adult passengers”. Also attached to the Applicant’s Affidavit are certificates of commendation and appreciation from his employer for his work as a bus driver.

93. The evidence presented to the Tribunal, uncontested by the Respondent, is that throughout his 34 years as a bus driver, the Applicant has had direct contact with children on a daily basis without supervision, and he has never had a complaint made against him.

Conclusion and orders

94. The matters that the Respondent took into consideration in refusing a WWCC clearance were of a serious nature, especially the allegations of sexual assault. None of these charges were, however, substantiated at the time or now before the Tribunal. These complaints arose more than 35 years ago and there have been no similar complaints since then. The AVOs arose in a domestic context and the Applicant consented and complied with them without admitting to any of the conduct that was complained of. He has been assessed by a psychologist, in whose opinion the Applicant does not pose a real or appreciable risk to the safety of children.

95. For the past 34 years the Applicant has had daily contact with children without any incident or complaint made against him. After considering the paramount object of the Act - namely the safety, welfare and well-being of children, and in particular protecting them from child abuse, as required by section 4 of the Act - on the evidence available to it and on the balance of probabilities, the Tribunal is not satisfied that the Applicant poses a real and appreciable risk to the safety of children.

96. The Tribunal orders that:

1. The decision of the Respondent to refuse a Working with Children Clearance is set aside.

2. The Applicant is granted a Working with Children Check clearance.

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: 06 July 2016