CLK v Children's Guardian

[2016] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLK v Children's Guardian [2016] NSWCATAD 183
Hearing dates:	6 May 2016
Date of orders:	16 August 2016
Decision date:	16 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member R Royer, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 22 February 2016 is refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under section 61L of the Crimes Act 1900 (NSW)for indecent assault upon his then wife – conviction in Local Court and on appeal to District Court discharge with a recognizance under s556A of the Crimes Act–treated as a conviction under section 5 Child Protection (Working with Children) Act 2012 (NSW) - common assault conviction on a female victim in a separate incident - 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Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) 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:	CLK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent)   Solicitors: CLK (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610114
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

1. This is an application commenced on 22 February 2016 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 “CLK” in these proceedings, that due to his conviction on16 March 1993, and the outcome of a subsequent appeal from that conviction, of an offence of indecent assault under section 61L of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children check clearance. The applicant was found guilty and sentenced for that criminal matter to 125 hours Community Service and court costs of $45 by a Local Court Magistrate. In the District Court Appeal from that sentence the offence was found proved and the appeal dismissed without proceeding to conviction and the applicant was dealt with by a recognizance for 2 years under section 556A of the Crimes Act. For the purposes of the Act the determination of the District 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.

2. 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.

3. The applicant was advised that he was a disqualified person on 7 October 2014 and that notice was received by him on 10 October 2014. The applicant should have applied to the Tribunal for an enabling order within 28 days of the notification due to rule 23(3)(b) of the Civil and Administrative Tribunal Rules 2014. The Civil and Administrative Tribunal Act provides at section 41 as follows:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

4. On 3 March 2016 Principal Member Higgins made an order pursuant to section 41(1) Civil and Administrative Tribunal Act extending time for the applicant to file the application for an enabling order by 22 February 2016. This was the date upon which the application was filed.

5. The matter was heard on the 6 May 2016. The applicant represented himself.

6. 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 children’s sporting teams. An enabling order would permit the applicant to work with children in any child-related work even though the applicant seeks the order for a limited purpose. The respondent opposes the application for an enabling order and the grant of a working with children check clearance.

The Evidence

7. The matter was commenced by an Application filed 22 February 2016 attaching a letter from the Children’s Guardian dated 7 October 2014, and the application for Stay or Interim Order. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

1. Statement referring to section 30 of the Act filed 5 May 2016: Exhibit A1;

2. Documents summarising the applicant’s work with children’s sporting teams filed 2 March 2016: Exhibit A2;

3. Bundle of correspondence from the Crown Solicitor’s Office and the applicant in response: Exhibit A3;

4. Emails from March 2016 between the applicant and a lawyer (no claim of privilege/ waiver of any client privilege - s122 Evidence Act 1995 (NSW)): Exhibit A4;

5. Email string of correspondence between the applicant and the Crown Solicitor’s Office dated 13/4/2016: Exhibit A5;

6. Bundle of documents filed by the respondent on3 March 2016: Exhibit R1;

7. Further documents filed by the respondent on8 April 2016: Exhibit R2;

8. Documents produced by a sporting club with which the applicant is associated : Exhibit R3;

9. Further documents filed on behalf of the respondent on 18 April 2016: Exhibit R4;

10. Further material filed by the respondent on 27 April 2016: Exhibit R5;

11. Further material filed by the respondent on 29 April 2016: Exhibit R6;

12. Submissions filed by the respondent on 28 April 2016: Exhibit R7.

8. There was no objection maintained by either party to the receipt of this evidence by the Tribunal.

9. The applicant gave oral evidence and was cross-examined.

10. The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided by the applicant and respondent.

11. 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

12. 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.

13. 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.

14. 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.

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

16. 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”

17. 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.”

18. 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).

19. 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 indecent assault upon an adult woman who was at the time his wife, in the circumstances referred to later in these reasons.

20. The applicant seeks a working with children clearance to work with children because he wants to coach children’s sporting teams.

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

“28 Orders relating to disqualified and ineligible persons

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

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

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

(a) the person has been refused a working with children check clearance, or

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

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.”

22. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act.

23. A person is not permitted to engage in “child-related work” unless they hold a working with children check clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work, or work which requires him to attend places where children are located, which therefore requires that the applicant obtains a working with children check clearance.

Standard of Proof and Onus of Proof

24. 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

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

“30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

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

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

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

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

26. 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 and referred to earlier in these reasons: Exhibits R1-R4.

27. 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].

28. 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

29. 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.

30. 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.

29. 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].

30. 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.

33. 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 common assault on a young woman (not a child) on 25 November 1992 in circumstances which are referred to later in these reasons.

Other matters

34. 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.

35. 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 on 3 August 1992 (for which the applicant has been sentenced under section 61L of the Crimes Act on 16 February 1993 in the Local Court when he received 125 hours community service and, on appeal, the offence was found proved and without proceeding to conviction so the applicant was dealt with under section 556A of the Crimes Act in the District Court): 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.

36. 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.

37. 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

38. 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

39. The offence is conceded by the applicant in his submissions to the Tribunal to be a serious offence. However, the applicant submits that because he received the benefit of a recognizance for 2 years under section 556A of the Crimes Act and no conviction was recorded, there is a mitigating factor concerning the seriousness of the offence which should be taken into consideration.

40. The offence occurred on 3 August 1992. The offence happened in the afternoon. The applicant participated in the record of interview with the police later in the afternoon of the same day. The applicant denied assaulting his wife in any way. The applicant told the police that he arrived home and the front door was locked. When he was let into the house by his wife’s eldest child (a teenager) and had a conversation with his wife who told him that the relationship was over. The applicant said a lady pulled up out the front of the house and his wife went out to see her. There was a phone call which he answered and then gave to his former wife. The applicant denied to the police the allegations which were put to him.

41. The evidence of the applicant’s former wife is that she was preparing to leave the home when the applicant arrived at the house. The applicant’s former wife and children spent the previous night in a refuge due to what the applicant had done to the two-year-old child. It is not specified what was actually done to the child, but clearly it was something from which the mother considered it was necessary to protect the child. The former wife said that she was packing more than the few essentials that she had packed the previous night for the refuge “so [she] could go and stay somewhere safely.” The applicant came into the house and grabbed her by the shoulders and she fell towards a window. The applicant grabbed her from behind and laid on top of her, putting his hand under her shirt and hurt her breasts by roughly squeezing and rubbing them. One of the young children came into the room and that allowed her to escape from the applicant. The applicant followed her and backed her against a window. A lady then arrived at the front of the house in her car. The police were called.

42. The applicant denied in sworn evidence in the Court case that anything like she described happened between him and his former wife. The applicant did not consider that his former wife was upset at all. The witness who was the lady in the car described that the former wife was crying and sobbing and upset. The police also observed she was upset. The Court accepted her evidence and rejected the evidence of the applicant. The Court preferred to reject the applicant’s evidence rather than reject the evidence of the police and the independent lady. The children were present when this offence occurred.

43. The offence is serious particularly because the children were present. The deleterious and long lasting effect upon children of witnessing conflict and violence between adults in a domestic situation is now better known that it was in 1993. The exposure to adult violence and conflict constitutes behaviour capable of a classification as ‘child and young person abuse’ because of the harmful and negative psychological and emotional impact upon young children.

44. There was an incident between the applicant and his former wife in 1990 prior to their marriage. The applicant contacted the police to tell them that he had just thrown the woman he described then as his ex-girlfriend, off his property. It was the evidence that she had a small laceration to her right wrist, pain in her lower back and inner thigh of the right leg, was visibly distressed and crying. The applicant gave a signed statement to the police in which he said that she came onto his property and when she was asked to leave she refused. The applicant said that he grabbed her by the arm and twisted it slightly and pushed her off the property, (he told police this happened three times). The applicant stated that she did not fall over or lose her balance. The applicant denied kicking her and said that she had made death threats towards him and her fingerprints were on his car and caravan. The applicant also said that she had been drinking (alcohol) because he could smell it on her. The charge of assault (domestic violence) which was laid against the applicant was dismissed by the Court on 26 March 1990. There is no transcript of those proceedings tendered to the Tribunal.

45. The applicant was convicted on 25 November 1992 of common assault of young woman whom he approached on a semirural road at approximately 5:40 pm in June 1992. The applicant had been to some car races on that day and was on his way home when he stopped his car, got out of the car, and followed the young woman into a darkened area of the roadway. The young woman engaged him in conversation when she realised she was being followed, during which he told her that his car was broken down. The young woman attempted to give the applicant directions to a public telephone located in the opposite direction to that in which they were walking. The applicant grabbed the young woman around the neck in a chokehold and began dragging her to the bushes on the side of the road, when the traffic stopped in both directions. The young woman struggled and screamed and saw car lights approaching. The applicant then let her go and began running back in the direction from which he had approached her. The applicant was seen running down the road by a witness, the driver of the approaching vehicle which was hailed by the young woman when she stood in the middle of the road. The victim hopped into the car with the driver. That driver and the young woman followed the applicant back to his car. The applicant started his car and drove off with the witness and young woman following behind. The woman and driver identified the applicant by his description and by later recognising him, and the witness and the victim both identified him by reference to the registration number plate of the motor vehicle. The victim and the driver then went to the nearest police station.

46. The applicant participated in an electronically recorded interview with the police. The applicant agreed that it was his vehicle that was seen by the driver and the victim. The applicant denied that he committed the offence. The applicant was psychiatrically examined and displayed no evidence of any psychiatric illness. The psychiatrist recorded, presumably because the applicant told him, that the applicant’s parents separated three and a half years previously and that he had coped well with the relationship breakdown and continues to have an amiable relationship with both his parents. The applicant said he was found guilty even though he did not do it. The applicant said to the Tribunal that he was unrepresented and asked the victim whether he was the person who attacked her. The victim answered affirmatively. The applicant said it was a case of mistaken identity and he was in the wrong place at the wrong time. The applicant simply told the psychiatrist that he just happened to be in the area in his car at the time of the assault.

47. The applicant told the police that he stopped at a service station for directions and also stopped his vehicle on the road in order to use a telephone on the other side of the road. The applicant said that he telephoned his wife but the line was busy. After the applicant made the telephone call he said he then got back in the vehicle and drove home. There is no corroboration of any of these explanations as to why the applicant stopped. These were the only things he told the police.

48. The applicant, as a result of his conviction and sentence on 25 November 1992, was under the supervision of the Community Correction Service, who conducted an interview with him on a number of occasions. The supervision ceased in approximately 25 February 1994. The supervision/probation order required supervision until 24 November 1995. During an interview on 22 September 1992 the applicant is recorded to have said that he parked his car on the side of the road to urinate in the bushes, but was unaware of his location and was trying to remember directions given by a service station attendant. The applicant also disclosed that he been sacked for making an obscene phone call to a member of staff and had not worked since. The applicant was also studying in 1993, dropped a computer course and took up a full-time photography course.

49. It is probable that the applicant at a later point made up the story of urinating in the bushes at the side of the road. It was not something he told the psychiatrist or the police. The applicant has also not been consistent about the phone call or seeking directions from the service station worker.

50. The Tribunal is satisfied that it is highly probable that the applicant committed the assault observing that he was convicted and did not successfully appeal, despite his protestations of innocence. The conviction has not been overturned. In those circumstances, each of the explanations that the applicant offers most probably are fabrications. It is more than probable that if the victim had not escaped she could have been sexually assaulted or more seriously physically harmed. It is even possible that she could have suffered fatal injuries if the attack had escalated and had not been interrupted. Fortunately, the worst case scenarios did not happen because the assault was interrupted just after it had started.

51. The applicant also told his supervisor from the Community Correction Service that his former wife accused him of sexually assaulting his children and later denied that she had made the allegation to his stepmother: Exhibit R5 p18. It is also recorded that the applicant was surprised, hurt, devastated when his mother left home and that was the reason he got involved with his former wife. This is not consistent with the history related to the psychiatrist.

52. The Community Corrections Officer who prepared the Presentence Report dated 23 September 1992 recorded that the applicant was reluctant to allow her to contact any significant person in his life. The applicant described his early home life as stable and supportive. The applicant told the officer he was surprised and hurt when his mother moved to another State when he was aged 17 as he considered they had a happy relationship: Exhibit R5 page 68. This, again, is not consistent with the history related to the psychiatrist.

39. The applicant stated in his response to the letter from the Crown Solicitor’s Office dated 4 March 2016 that he received some warning letters with one of his former employers “for the tone of an email [he] sent, because [he] called someone incompetent, and there was one for not handling a query within a set time frame.” That former employer provided a letter dated 30 November 2011 identifying that he had been employed in a permanent capacity and then resigned. The applicant stated in his response to the documents produced by summons that in fact the applicant was terminated from this employment and the letter provided was as a result of unfair dismissal proceedings brought by the applicant against this employer. Following an investigation, the employer found on the balance of probabilities that the applicant engaged in fraudulent conduct with a customer, and substantiated previous complaints from customers and other staff about the applicant’s behaviours which related to the breach of the “Code of Conduct, Equal Opportunity Policy and values”. This investigation resulted in the applicant’s immediate termination of employment. The applicant clearly was not honest in his disclosures about his previous employment. More importantly, the reason for termination was due to primarily fraudulent behaviour on top of prior inappropriate behaviour. The applicant agreed that his response to questions about his history was incomplete.

40. The applicant identified that he has worked as a photographer and trained to take photographs. There are a number of reports in the police material shown to the respondent to which the applicant has responded in writing, concerning reports of the applicant taking photographs of young women in swimsuits in public places. In 2005 it was alleged that the applicant was taking photos of female models at a magazine’s swimsuit contest without their consent. The applicant says that he was the official photographer for the club and that he ran a modelling agency. The applicant says that there were no complaints about his behaviour nor was there any inappropriateness in relation to any of the photo shoots that he conducted. There are a number of information reports made to the police to which the applicant has responded in writing. This material does not establish on the balance of probabilities that the applicant has engaged in voyeuristic behaviours as seems to be insinuated and alleged by unnamed persons in the material.

41. The conduct of the applicant in relation to the offences which the applicant was convicted was concerning and serious.

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

56. The offence of indecent assault occurred some 24 years ago.

57. The conduct of the applicant since that time has not been the subject of any further criminal offences.

58. The lapse of time between the offences of indecent assault 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 vehemently denies and has no understanding of the reasons for the offending behaviour and is therefore unlikely to be able to determine whether circumstances which then prevailed might lead to further offences currently or in the future.

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

59. The applicant was aged 22 at the time of the offence of indecent assault. The applicant was approximately the same age at the time of the common assault upon the young woman.

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

60. The victim of the indecent assault was aged approximately 30 years at the time of the offence. The children were aged approximately one and two years old. It is assumed that the daughter of the applicant’s former wife was older than those children. There is no evidence of the age of the young woman who the applicant assaulted by the side of the road.

61. The vulnerability of the victims of the applicant’s criminal behaviour is closely related to their gender and lack of physical strength to fight off the applicant’s attack. The applicant engaged in behaviour which relied upon his dominance over his victims. The children are vulnerable witnesses of conflict and domestic violence.

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

62. The difference in age between the victim of the indecent assault and the applicant was seven and a half years, with the victim being older than the applicant. The victim was the wife of the applicant.

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

63. The victim was not a child. The applicant has submitted that the offence had nothing to do with children. However there were child witnesses to his domestic assault of his former wife. They are victims of that assault because the effect upon them was deleterious to their psychological and emotional development.

The person’s present age

64. The applicant is currently 46 years old.

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

65. The applicant has a criminal record for offences other than the offence which renders him a disqualified person.

66. The applicant has denied that he was guilty of the offence which renders him a disqualified person.

67. The applicant admits to having stolen some items of clothing for his children for which he was convicted and sentenced to community service although the criminal history records show a fine and Court costs, subsequent to the indecent assault ‘conviction’. There are also some traffic offences of little relevance to this application.

68. Prior to his indecent assault conviction the applicant was convicted on 25 November 1992 of common assault for which he received a recognizance pursuant to section 558 of the Crimes Act to be of good behaviour for a period of 3 years.

69. The applicant was studying and working as a photographer. The applicant no longer works as a photographer.

70. The applicant has had the care of his children on a full-time basis. It appears that the applicant’s son lived with him full-time for a period of three years but he returned to live with his mother in December 2015. The applicant’s daughter currently resides with the applicant.

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

71. The applicant relies upon minimal objective evidence to support his assertions that he does not pose a risk to children.

72. The applicant has denied the offence occurred which now renders him a disqualified person.

73. The applicant also denies the common assault conviction which occurred prior to the indecent assault. The applicant states that he did not know, nor did he ever meet, the victim of that assault. The applicant says he was found guilty even though he did not do it. The applicant says he was unrepresented and asked the victim whether he was the person who attacked her. The victim answered affirmatively. The applicant says it was a case of mistaken identity and he was in the wrong place at the wrong time. This is not credible and his misleading explanations of the circumstances of that assault are, on the balance of probabilities, false.

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

74. The applicant has provided information which supports his involvement in a local school from 2010 to 2012 during which time his children attended the school. The applicant was engaged in the School Parents and Citizens’ organisation and the School Council during those years: Exhibit A2 and Exhibit R2, page 14. There were no complaints or details of any disciplinary proceedings reported by the principal of that school.

75. The applicant has been involved in a local sporting club since 2012. The applicant has served on the committee of that sporting club: Exhibit A2. There have been no adverse reports concerning the applicant’s involvement in that club.

76. The applicant did not provide any psychological assessments or similar evidence in support of his application. The applicant was assessed by a psychiatric registrar on 26 October 1992 and found to have no evidence of any psychiatric illness. The applicant clearly did not tell the psychiatrist the truth about his history.

77. The applicant relies upon the character reference from his estranged wife who states that he has never been aggressive, abusive or inappropriate.

78. The applicant has not provided any sworn affidavit but did give oral evidence and was cross-examined. The applicant, at the time of giving his oral evidence, did not correct any of the written material that he provided to the respondent and to the Tribunal.

Any other matters that the Children’s Guardian considers necessary

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

80. The Children’s Guardian submits that the applicant’s conduct involved serious abuse and he should not be granted an enabling order.

Consideration and determination

81. The applicant is now an adult of mature years.

82. The applicant has been convicted of two serious offences one 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 indecent and common assault 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 has the capacity to prevent repetition of the offences. The applicant protests his innocence and does not acknowledge the behaviour was inappropriate.

83. In the circumstances, each of the explanations that the applicant offered in relation to the common assault are fabrications. If the victim had not escaped she could have been sexually assaulted or more seriously physically harmed. It is possible that she could have suffered fatal injuries if the attack had escalated and had not been interrupted. The worst case scenarios did not happen because the assault was interrupted just after it had started.

84. The history related by the applicant to the psychiatrist is inconsistent to the history related to the Community Corrections Officer.

85. Contrary to his disclosures to the respondent the applicant engaged in fraudulent conduct with a customer, and his employer substantiated previous complaints from customers and other staff about the applicant’s behaviours which related to the breach of the employer’s “Code of Conduct, Equal Opportunity Policy and values”. This resulted in his termination of employment which was not disclosed by the applicant to the respondent.

86. In relation to the indecent assault conviction there were children present at the time.

87. The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse.

88. There is a lack of evidence of mitigating factors such as examination and addressing of the reasons for the criminal offending.

89. Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is very little remorse expressed by the applicant, and it would appear that there has been no admission of any reason to be remorseful.

90. 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.

91. 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.

92. 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.

93. 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

94. 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.

95. The order of the Tribunal is that:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 22 February 2016 is refused and dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 August 2016