CJL v Children's Guardian - [2017] NSWCATAD 63

No judgment structure available for this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CJL v Children's Guardian [2017] NSWCATAD 63
Hearing dates: 8 August 2016, 15 November 2016
Date of orders: 28 February 2017
Decision date: 28 February 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Emeritus Professor P Foreman, General Member
Decision:
1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 23 December 2015 is refused and dismissed.
2) 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.

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 61N(2) of the Crimes Act 1900 (NSW)for an act of indecency with a person 16 years and over – conviction in Local Court to a bond under section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months – sentence treated as a conviction under section 5 Child Protection (Working with Children) Act 2012 (NSW) - 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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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 (Sentencing Procedure) Act 1999 (NSW)
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
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: CJL (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J Ghabrial (Applicant)
A Douglas-Baker (Respondent)
Solicitors:
Michael Abboud & Co (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510810
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

This is an application commenced on 23 December 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 “CJL” in these proceedings, that due to his conviction in 2015, of an offence of an act of indecency with a person 16 years and over, contrary to section 61N (2) of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children Check Clearance. The applicant was sentenced to a bond under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months. For the purposes of the Act the determination of the Court is treated as a “conviction” pursuant to section 5 (1) of the Act. The offence is one which is specified within Schedule 2 of the Act.
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. A further similar order will be made as part of this decision.
The applicant was advised that he was a disqualified person on 26 November 2015 and the application for an enabling order under section 28 of the Act was filed on 23 December 2015.
The matter was heard on 8 August and 15 November 2016. The applicant was legally represented.
The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to coach adult and children’s sporting teams. An enabling order would permit the applicant to work with children in any child-related work in a paid and voluntary capacity 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

The matter was commenced by an Application filed 23 December 2015 attaching a letter from the Children’s Guardian dated 26 November 2015, and the application for Stay or Interim Order filed also on 23 December 2015. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

Affidavit of the applicant dated 17 February 2016: Exhibit A1;

Report of Dr Allnut dated 27 March 2016: Exhibit A2;

Report of Dr Allnut dated 18 June 2016 and filed 27 June 2016: Exhibit A3;

Report of Dr Srinivasan dated 12 March 2016: Exhibit A4;

Report of Dr Sringeri dated 23 March 2016 and filed 30 March 2016: Exhibit A5;

Letter from Michelle Jackson, clinical psychologist: Exhibit A6;

Submissions of the applicant filed 25 July 2016: Exhibit A7;

Index of documents (with references as an aide memoire): Exhibit A8;

Application filed 23 December 2015: Exhibit A9;

Report of Dr Stephen Allnut dated 5 September 2016: Exhibit A10

Bundle of Documents filed 25 January 2016: Exhibit R1;

Further documents filed by the respondent on 17 February 2016: Exhibit R2;

Further Documents filed by the respondent on 9 March 2016: Exhibit R3;

Further Documents filed by the respondent on 8 April 2016: Exhibit R4;

Further Documents filed by the respondent on 15 July 2016: Exhibit R5;

Further Documents filed by the respondent on 25 July 2016: Exhibit R6;

Submissions on the respondent filed 1 August 2016: Exhibit R7.

There was no objection maintained by either party to the receipt of this evidence by the Tribunal.
The applicant gave oral evidence and was cross-examined.
The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided by the applicant and respondent.
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

The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working with Children Check Clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.
The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.
There is no relevant definition of “child abuse” contained in the Act.
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”

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.”

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).
The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(e) 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. The offence with which the applicant was charged was an act of indecency with a person 16 years and over, contrary to section 61N (2) of the Crimes Act, in the circumstances referred to later in these reasons.
The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to coach children’s sporting teams.
An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter:

“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.”

The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.
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 which therefore requires that the applicant obtains a Working with Children Check Clearance. The applicant does not require such a clearance to perform his primary professional occupation.

Standard of Proof and Onus of Proof

It can be seen from section 28 (7) of the Act that 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

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 relevantly for this application:

“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.”

The Children’s Guardian received information pursuant to section 31 of the Act from the applicant’s employer and various government agencies, including the police and the courts. That information was tendered in evidence.
It must also be observed that 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): BKE v Office of the Children’s Guardian, at [4], [25], [27].
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

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 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.
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.
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].

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.

In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant has also been convicted of traffic offences relating to alcohol use/abuse in 2002, 2003, 2005, 2006, and 2007. Additionally the applicant has been convicted of indecent exposure or offensive behaviour matters in 2006.

Other matters

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 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 in all the circumstances whether 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.
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 in September 2014 which led to the charge of committing an act of indecency towards a person 16 years and over: 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.
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.
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

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

The disqualifying offence occurred in a public bar. The offence occurred in the early hours of the morning. The victim of the offence was aged 49 and she was standing behind the applicant while he was purchasing an alcoholic beverage. The applicant says that he felt someone grab his buttocks. The applicant turned around and faced the victim. After the victim took a step backwards the applicant reached around his back and brought the same arm back and moved his hand towards the victim’s face extending his middle finger towards the victim. This of itself is an unnecessarily aggressive act on the part of the applicant. There was an allegation that the applicant had placed his finger in his rectum and the victim said she smelt something that smelt like faeces on his finger.
The applicant executed an affidavit for the criminal proceedings in which he explained the offence as follows:

Although I was intoxicated at the time, I do remember feeling someone grab me on my bottom. I turned around and saw the lady who I now know as [the victim]. I honestly assumed that she had been the one who grabbed my bottom. I said to her, jokingly, “did you enjoy grabbing me on the butt?” At no time did she tell me that someone else had done it and run away. I did not know this had happened. I only found this out when I saw the court papers for this matter. At the time I was joking around with her. I put my hand down the back of my pants and pulled my hand out and said: “look my butt is clean”. I never put my hand or finger in my bottom crack, like she must have assumed when she spoke to the police. I have no idea why [she] smelt something that smelt like faeces. The only reason I laughed at the time was because I honestly thought it was funny. I wasn’t meaning to offend her. I thought she had just grabbed my bottom. I honestly did not mean for [the victim] to be offended in any way. I was having a joke around with her. I feel gutted and so sorry that she was offended and upset.
…
It was only after I had been charged and read the papers that I began to recall the incident that they [the police] were interviewing me about.
…
I now know that I have to stop drinking, which I have done, so that I can act and think more clearly in my life. I also now understand the importance of addressing my deepest psychological issues in a more healthy way, so that I get better. I now know and understand that alcohol is not the solution but simply adds to my problems. I can assure the court and the community that I will adhere to the treatment that Dr Allnut has proposed for me.

The offence occurred in 2014. The applicant pleaded guilty and was found guilty but the court, without proceeding to conviction, directed him to enter into a good behaviour bond for 12 months under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on condition that he is of good behaviour and appears before the court during the bond if required, to “obey all reasonable directions of Dr Sringeri and accept treatment as and when directed to address alcohol rehabilitation and mental health”.
The evidence shows that the applicant had a pre-existing issue with alcohol consumption. The submission of the applicant is that the facts relating to the offence were not very serious. It is also submitted that on the scale of “indecency”, it was at the very lowest end of the range which is reflected in the decision of the Local Court and the sentence which was imposed.
There were four witnesses at the hotel whose recollections were consistent with the victim’s description and witnessed the applicant’s actions. The applicant was removed from the hotel by security. The applicant later returned to the hotel. The applicant was charged with attempting to re-enter licensed premises within 24 hours of being turned out. In relation to that offence the applicant was convicted pursuant to section 10A of the Crimes (Sentencing Procedure) Act which is a conviction with no other penalty. The applicant told the police that he had a few drinks and denied any recollection of the incident occurring.
The conduct of the applicant in relation to the disqualifying offence of which the applicant was convicted was serious because it is evidence of his recurring alcohol-related offences and disinhibition when affected by alcohol. The applicant said that he thought the behaviour was funny. The victim did not. The pattern of offending prior to this offence resulted from the applicant binge drinking from the age of 16 according to his evidence. The offence itself and the sentence imposed by the court reflects that it is not a serious criminal offence. The offence is serious enough however, to be placed on schedule 2 of the Act and for the applicant to be required to displace the onus placed upon him by the Act. The surrounding circumstances of the offence including the additional offence of re-entering the premises gives the offence a more serious context.

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

The offence of an act of indecency towards another person occurred in 2014.
The conduct of the applicant since that time has not been the subject of any further criminal offences.
The lapse of time between the offence of an act of indecency and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. However, it is apparent on the evidence that the applicant has struggled to maintain abstinence from alcohol.
The applicant has a pattern of offending which involves binge drinking and a failure to maintain abstinence despite professing to be abstinent at various stages. The applicant commenced binge drinking at an early age and continued until at least the age of 34. The applicant repeatedly acknowledged that he had a problem with alcohol to be addressed in therapy. The Children’s Guardian submits that the applicant’s commitment to seeking professional help and abstaining from alcohol peaks at times when the applicant is charged with alcohol-related offences and falls away after those matters have been dealt with by the courts, only to resurface again with another alcohol-related charge. The applicant commenced counselling in May 2006, continued in 2007, and alcohol rehabilitation was a condition of the good behaviour bond in respect of the disqualifying offence.
During the first day of the hearing of these proceedings the applicant was questioned by the Tribunal as to whether he was taking any medication such as “Antabuse”. By the second day of the hearing of these proceedings the applicant was prescribed this drug by his doctor.
The submission of the Children’s Guardian is that the applicant has done too little and what has been done is too recent to be convinced that the applicant is genuinely abstinent from alcohol. During periods when the applicant has said that he is abstinent he has relapsed within a short period of time. It was also submitted that there had not been significant behavioural change. It was also submitted that the Tribunal would be cautious to find anything other than early remission in terms of the applicant’s alcohol issues.
The applicant submitted that he is currently abstinent and did not breach the bond imposed by the Local Court. The applicant also submits that he has not behaved in an inappropriate or offensive way towards any children throughout his whole life. The applicant had been involved in coaching prior to receiving the notice of disqualification from the Children’s Guardian for about 16 years without incident or complaint. The applicant provided supportive references concerning his good behaviour.

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

The applicant was aged 33 at the time of the offence of disqualifying 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

The victim of the disqualifying offence was aged 49 at the time of the offence. It was submitted on behalf the applicant that the victim was not a vulnerable person and was a stranger to the applicant. It was also submitted that it was a brief interaction in unusual circumstances.
In relation to the applicant’s behaviour for the other offences which he committed when affected by alcohol, it was submitted on behalf the Children’s Guardian that the applicant poses a real and appreciable risk to members of the public generally, including children, when he engages in that antisocial conduct.

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

The difference in age between the victim of the act of indecency and the applicant was 16 years, with the victim being older than the applicant. The victim was an unknown person to the applicant but a fellow patron at the public house in which he was drinking.

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

The victim was not a child. The disqualifying offence had nothing to do with children.
The applicant’s other behaviours when affected by alcohol are a potential risk to the members of the public generally, including children, when he engages in antisocial conduct.

The person’s present age

The applicant is currently 35 years old.

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

The applicant has a criminal record for offences other than the offence which renders him a disqualified person.
The Children’s Guardian submitted that the criminal history discloses significant and sustained antisocial conduct related to the applicant’s long-term alcohol dependency.
The applicant was convicted of driving with a middle range prescribed content of alcohol in his blood (PCA) in 2002. The applicant collided with a telegraph pole and fortunately no other vehicles were involved in the collision. The applicant was convicted of driving with a high range PCA in 2005. The applicant collided with another vehicle at 5 am in a public street. These are not minor drink driving offences.
The applicant was convicted in 2006 of behaving in an offensive manner in or near a public place and wilful and obscene exposure in or near a public place. The applicant was urinating on a car in full public view with his penis exposed at 10:30 am in the morning, in circumstances where the applicant was highly intoxicated and aggressive towards the police. The applicant was again heavily intoxicated when he was arrested for the wilful and obscene exposure by waving his penis around with his right hand in a public place.
The applicant also failed to submit to a breath test in 2006 after having been stopped for a random breath test. The applicant was convicted in 2007 and 50 hours of community service was imposed by the court. In a report prepared by Ms Jackson in February 2007 she identifies that the applicant had abstained from alcohol and had learnt methods to prevent and help with lapses or when relapse occurred. Ms Jackson identified that at the time of his attendance he was diagnosed with paranoid personality disorder and felt he could not manage his life very well. The offending behaviour was in response to the antisocial features of his paranoid personality disorder which predisposed him to acting in an antisocial manner while under the influence of alcohol. The referral from the applicant’s GP was for counselling due to alcoholism and depression. Ms Jackson gave a report giving the applicant a clean bill of health in March 2016 on the basis that he no longer drinks alcohol and his depression has gone.

The applicant submitted that his criminal history is not a serious one. None of the offences involved children. The applicant has not come to adverse notice during his coaching. There have not been any Apprehended Violence Orders. The applicant has provided excellent references.
It is also submitted by the Children’s Guardian that the conduct of the applicant since the applicant’s other offences has not demonstrated that he is committed to rehabilitating and suggests that his engagement with rehabilitation services is motivated by the application to the Tribunal.

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

The applicant submitted, in the written submissions filed on his behalf, that he has been effectively sober since the disqualifying offence. The applicant submits that it is highly unlikely that he will commit any offences or conduct himself in any way that would impact negatively or harmfully on children.
The applicant relies upon the reports and letters from his treating health practitioners.
The applicant was diagnosed by Dr Allnut in 2015 as suffering from a constellation of depressive and anxiety symptoms. It was also his diagnosis that the applicant had an alcohol use disorder of mild to moderate severity. It was recommended that the applicant see a psychiatrist Dr Sringeri for a minimum of six months duration and frequency to be determined in collaboration with the psychologist to assist him to find better ways than alcohol to cope with his underlying issues. It was also recommended that he attend Alcoholics Anonymous indefinitely and on a regular basis.
In June 2016 Dr Allnut provided another report in which he records the applicant told him that he had last consumed alcohol two weeks prior. The applicant had deposed in an affidavit to the court for the disqualifying offence that he had stopped drinking alcohol and would continue to attend AA. Dr Allnut stated in his June 2016 report that the applicant said he had attended AA until about March 2016 but then had only gone to another AA meeting two weeks prior to seeing Dr Allnut. In his affidavit to this Tribunal dated 17 February 2016 the applicant says that he has “dramatically reduced” alcohol consumption. The applicant also stated that he had “abstained from the consumption of alcohol recently”.
Dr Allnut provided another report dated September 2016 which was obviously prepared during the adjournment of the hearing in this matter. The purpose of that report was “to provide an opinion on his risk for general offending”. Dr Allnut did not observe the applicant to display or manifest any active symptoms of a major mental illness but continues to manifest an ongoing propensity to social anxiety. Dr Allnut states that the applicant is regarded by him as having an alcohol use disorder with abstinence more recently supported by his use of Antabuse. It is Dr Allnut’s opinion that the applicant falls into a “group of offenders who have low risks/needs for general offending as compared to other offenders.”
Dr Allnut also gave oral evidence. The effect of that evidence is that the longer the applicant remains abstinent, the better the prognosis and it would be helpful for the applicant to continue with regular AA attendance. The issue confronting the applicant is a lifelong problem and a sustained remission is 12 months proven abstinence. The use of Antabuse is effective to deter relapse only as long as the applicant continues to take it. The applicant is in early remission. The Tribunal was impressed by Dr Allnut’s oral evidence and the acceptance that there is a lifelong need for action by the applicant will assist the applicant to achieve complete remission.
Ms Jackson also gave oral evidence. It was her evidence that it took a number of sessions to get the applicant to realise his effect on children on or off the sporting field and to accept that responsibility. Those conversations apparently occurred in August 2016. This is a positive step towards the right direction.
It is apparent that the applicant has formed a secure relationship with his current partner who also gave evidence. This may act as an incentive for total remission on the part of the applicant.

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

The applicant has provided information which is referred to previously in these reasons and the documentary parts of that information were accepted as exhibits. In addition, the applicant, his partner and various witnesses have given oral evidence to the Tribunal.

Any other matters that the Children’s Guardian considers necessary

The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.
The Children’s Guardian submits that the applicant should not be granted an enabling order.

CONSIDERATION AND DETERMINATION

The applicant has been convicted of an offence of an act of indecency towards a person 16 years and over 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 offence was apparently unplanned and opportunistic and exhibited a lack of self-control and incapacity to implement any strategies to prevent their occurrence. The applicant has not been able to show that he currently has the capacity to prevent repetition of the offences. That may will be achieved in the future.
The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse. It is fortunate that children have not been directly impacted by the behaviour of the applicant. The applicant has only come recently to realise that his behaviour has an impact upon children particularly if he is their coach or if they hear about his exploits as identified by Ms Jackson in her oral evidence.
The significant issue for the applicant is that he has repeatedly vowed to remain abstinent and then relapsed. Since 2007 the applicant’s commitment to seeking professional help and abstaining from alcohol peaks at times when the applicant is charged with alcohol-related offences and falls away after those matters have been dealt with by the courts, only to resurface with another alcohol-related charge.
The applicant poses a real and appreciable risk to members of the public generally, including children, when he engages in antisocial conduct which appears to be disinhibited by excessive alcohol consumption.
Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is remorse expressed by the applicant. The applicant has not been able to sustain a long enough period of remission to confidently say that he is in anything other than the early stages of remission. The applicant has done too little and what has been done is too recent for the Tribunal to be persuaded to the requisite standard that the applicant is genuinely abstinent from alcohol and will remain in remission.
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 which 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 but it is not the only factor which must be considered.
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.
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 to children. As identified by Ms Jackson the capacity of the applicant’s previous behaviours to have an effect on children is something which should not be underestimated.
The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

In all the circumstances, on the balance of probabilities and 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.
The order of the Tribunal is that:

The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 23 December 2015 is refused and dismissed.

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.

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: 28 February 2017

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Citations

CJL v Children's Guardian [2017] NSWCATAD 63

Cases Citing This Decision

0

Cases Cited

31

Statutory Material Cited

11

BFX v Children's Guardian [2014] NSWCATAD 115

BKE v Office of the Children's Guardian [2015] NSWSC 523

Children's Guardian v BQJ [2016] NSWSC 869

Medium Neutral Citation:	CJL v Children's Guardian [2017] NSWCATAD 63
Hearing dates:	8 August 2016, 15 November 2016
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member Emeritus Professor P Foreman, General Member
Decision:	1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 23 December 2015 is refused and dismissed. 2) 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.
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 61N(2) of the Crimes Act 1900 (NSW)for an act of indecency with a person 16 years and over – conviction in Local Court to a bond under section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months – sentence treated as a conviction under section 5 Child Protection (Working with Children) Act 2012 (NSW) - 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 (Sentencing Procedure) Act 1999 (NSW) 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 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:	CJL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Ghabrial (Applicant) A Douglas-Baker (Respondent) Solicitors: Michael Abboud & Co (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510810
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.