CPL v Children's Guardian

[2017] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CPL v Children’s Guardian [2017] NSWCATAD 203
Hearing dates:	23 March 2017 & 26 April 2017
Date of orders:	22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member R Royer, General Member
Decision:	The Tribunal affirms the respondent’s decision to refuse to grant the applicant a Working with Children Check Clearance
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – notifications to FACS regarding child abuse – no police statements and no charges – whether applicant poses a risk to the safety of children – assessment of risk – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Office of the Children’s Guardian v CFW (2016) NSWSC 1406 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949. R v Commission for Children and Young People [2002] NSWlRComm 101  ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CPL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) Self-represented (Applicant)
File Number(s):	2016/00378115, 1610351
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.

reasons for Decision

1. This is a review of a decision to cancel the applicant’s Working With Children Check clearance (WWCCC). In October 2013, the applicant was granted a WWCCC. In August 2015, the NSW Ombudsman provided information to the Children’s Guardian that the applicant may be a risk to the safety of children. The applicant had been a person of interest in several police investigations into child sexual abuse spanning a period of 30 years. He had never been charged by police. The Children’s Guardian cancelled the applicant’s WWCCC on 17 December 2015. The Tribunal has considered all the relevant information and material and agrees the applicant does pose a risk to the safety of children and affirms the decision to cancel his WWCCC.

Background

2. The applicant will be referred to as ‘CPL’ in this decision. He is a 73 year old man and lives in regional NSW. His partner of 10 years, ‘AB’ is an authorised foster carer and cares for three children in out-of-home care, aged between 10 and 14 years, in her home. CPL wants a WWCCC to live in the same household with his partner, AB and the three children.

3. In April 2015, following allegations of child sexual abuse against CPL, the Department of Family and Community Services (FACS), placed conditions on AB’s placement that CPL was not permitted to stay overnight at the home and was not allowed unsupervised time with the children. Since that time, CPL has resided with his partner’s mother who lives close by.

Preliminary issue about out-of-home care placement conditions

4. During the hearing, an issue was raised as to whether the granting of a WWCCC to CPL would override the FACS conditions of the out-of-home care placement and enable him to spend unsupervised and overnight time with the children in his previous household. The Tribunal explained to CPL that the process of removing or changing any placement conditions imposed by FACS was not within the jurisdiction or power or scope of these proceedings. These proceedings are exclusively about whether or not to grant CPL a WWCCC. CPL would need to obtain other advice to change or remove any conditions imposed by FACS on the out-of-home care placement of children.

Allegations of Child Sexual Abuse

5. The NSW Ombudsman wrote to the respondent by letter of 25 August 2015 providing the office with information that CPL was the subject of a current JIRT investigation regarding child sexual abuse allegations occurring in 2015 and he was also a person of interest in several previous police and FACS investigations of sexual assault against children between 1986 and 2015. CPL has not been charged with any of these matters. On the 17 December 2015, the respondent cancelled the CPL’s WWCCC based on the information provided by the NSW Ombudsman letter and their own investigation. The details of the alleged child sexual assault offences are set out below.

Child 1 – Alleged offences in 2015

6. In April 2015, Child 1 had been in out-of-home care in a respite placement with CPL’s partner, AB. She was 12 years old and disclosed to FACS that she has been frightened by CPL. CPL had touched her private parts. She told a FACS caseworker, he had come into the bathroom and attempted to take off her clothes and rip off her shirt. She kicked CPL away and screamed out and he left. The following night Child 1 was lying in bed and saw CPL in the doorway. She turned over with her back to the wall and she then felt CPL put his hand up her shorts and feel her private parts. She claimed she hid in a wardrobe in the bedroom where she slept for the rest of the night. Child 1 also told FACS that when she was in the bathroom she saw CPL trying to unlock the door with a butter knife and she tried to climb out the bathroom window to get away from CPL. Child 1 later retracted this last part of her statement. FACS also investigated the premises and found the bathroom window was screwed shut and immoveable. Child 1 was removed from the home.

7. There is also a further second-hand report of an alleged disclosure by Child 1 that she had penile-vaginal penetrative sex with CPL.

8. These 2015 allegations are the subject of ongoing JIRT investigation.

Child 2 – Alleged offences in 2015

9. Child 1 disclosed to FACS that she and Child 2 aged 13 years old at the time were sleeping in two separate beds in the bedroom and CPL came into their room and started touching their feet and their legs. Child 2 had a panic attack and Child 1 gave her a puffer to help her breathe. CPL left the room. Child 2 was interviewed by FACS and denied CPL had touched her. FACS caseworker described Child 2 as being fiercely loyal to CPL.

Child 3 – Alleged offences in 2004 and 2007

10. In 2004, a third party report was made to FACS in respect of Child 3. She is biologically related to CPL and was 10 years old at the time. The report stated that Child 3 had packed her bags and left her home in a NSW regional town because she was upset with CPL and had said to him; “You’re not going to do this to me again”.

11. Child 3 was interviewed by JIRT but did not disclose any sexual abuse by CPL. She stated that she lived in the NSW regional town with her mother and siblings and the applicant who also lived in the same town, regularly visited her.

12. In 2007, Child 3 disclosed to FACS that one year earlier, she was woken by Child 4, who was 13 years old at this time and told by Child 4; “he [CPL] was standing near me and touched me on the granny (sic: vagina)”. Child 3 then disclosed that a few weeks later CPL did the same thing to her when she was lying on the lounge. The report also suggests CPL tried to make Child 3 and Child 4 watch pornographic videos with him. When Child 3 was interviewed by police she described the video cover to police. In March 2007, Child 3’s grandmother agreed to a written undertaking that she would not allow CPL to reside overnight at the home or have any unsupervised time between CPL and Child 3. The status of the police investigation into the allegations made by Child 3 is suspended until Child 3 makes a formal statement.

13. After Child 1 made the allegations in April 2015, Child 3 provided a letter of support for CPL to police in July 2015. She was 19 years old at the time and stated in the letter that she had lied in her earlier statement and had been coerced to make up the allegations against CPL by her aunt.

Child 4 – alleged offences in 2005 and 2006

14. Child 4 is biologically related to CPL. In 2005, she had been living in the same home as Child 3. She was 11 years old and disclosed to FACS that she woke up in the middle of the night and a man was touching her private parts. She began to cry and the man left the room. She was interviewed by JIRT officers but did not disclose the identity of the man. The report states that CPL was the only person home at the time of the alleged assault. A week after the disclosure to FACS a further report was made about Child 4 that she had been asleep in the lounge with Child 3 and someone was standing over her, touching her. She disclosed that CPL had said to her, “You are a big girl and could sleep alone”. She also disclosed that she felt ‘scared’ and ‘sick’.

15. In 2006, a report to FACS was made in respect of Child 4, who was 12 years old at the time that CPL made Child 4 watch pornographic videos with him and he also molested Child 4.

16. The allegations about Child 4 had been investigated by JIRT but were not pursued due to, “insufficient info to establish criminal offence”.

Child 5 – Alleged Offence in 1986/ 1987

17. Child 5 is biologically related to CPL. In December 2007, Child 5 who was then 25 years old, attended a police station and disclosed to police she had been sexually abused as a child by CPL for approximately 10 years starting when she was 4 or 5 years old. The applicant had forced her to perform oral sex on him. She reported he would dress and undress her and the sexual abuse often occurred when CPL was drunk and his partner was asleep. She also disclosed that she would hide under the bed so CPL could not find her or she would try to get away.

18. At the time of the report in 2007 the police decided not to charge CPL as the allegations were historical and it would be Child 5’s word against CPL.

Applicant’s response to the allegations

19. CPL filed an Affidavit in which he denied all the allegations of sexual abuse against him. During the hearing, he was cross-examined by Counsel for the respondent and each of the allegations regarding child sexual abuse were put to him in detail and CPL denied all of them stating the allegations were ‘all lies’. He stated he had never been charged by police on any of the allegations and this fact supported his view that the allegations were all lies. He was unable to explain or offer any insights as to why the persons making the allegations were lying or mistaken.

Expert Evidence

20. CPL filed a report dated 31 October 2016 prepared by Forensic Psychologist, Dr Seidler who interviewed him by telephone for about one hour and fifteen minutes and made an assessment.

21. She conducted a clinical risk assessment and found that [CPL] presents a moderate risk of future sexual abuse. The factors that elevate [CPL]’s future risk are:

1. Although [CPL]‘s criminal history is limited, his most recent offence was in (2015) and he did not disclose this during the interview,

2. [CPL] has now been a person of interest in four separate allegations of child sexual abuse that span several decades, with the most recent being only last year and all the allegations being similar in terms of behaviour, modus operandi and victimology,

3. On the basis of the allegations, there was a substantial age and power difference between [CPL] and the children by virtue of their relationship and this indicates that the abuse would have occurred with a degree of psychological coercion,

4. [CPL] seems to have a history of hypersexuality,

5. [CPL] denies all the allegations, although the relationship between risk and denial is equivocal,

6. [CPL] endorsed some concerning and distorted thinking in relation to children and sex that facilitate sexual abuse,

7. [CPL] is a low functioning person cognitively and hence, his understanding of complex human concepts, including that related to consent and sexuality, is unsophisticated,

8. [CPL] has little insight into the need for risk management or his responsibilities therein and thus, his capacity for self-management is poor.

22. Dr Seidler stated that CPL had limited insight into and understanding of his personal responsibilities as an adult in respect to child safety. In recommendations, she stated;

“I have concerns about the potential this man has for the sexual abuse of children. Further, given the recency of the last allegation, given the vulnerability of the children in care and [CPL’s] lack of understanding of risk management, I am not comfortable recommending [CPL] be granted a working with children check clearance… [Emphasis added.]

Applicable Law and legal principles

23. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; s.3 of the Act.

24. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s.4 of the Act.

25. Children are defined as persons under the age of 18 years; s.5 of the Act

26. The Children’s Guardian will consider those matters set out in s.15(4) of the Act in making a risk assessment. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children; s.18(2) of the Act

27. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision; s.27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s.27(4) of the Act.

28. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: BJB at [110]; 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; R v Commission for Children and Young People [2002] NSWlRComm 101.

29. The issue for the Tribunal as required by s.18(2) of the Act is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. It is well established that the test to be applied is whether the risk posed by the applicant is ‘real and appreciable in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the words that follow, namely, ”to the safety of children”…’ see Commission for Children and Young People v V (2002) 56 NSWLR 476.

30. In determining this application, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act. CHB at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267.

Consideration of s.30(1) factors and Findings

a)   Seriousness of any matters that caused the assessment in relation to the person

31. The allegations of child sexual abuse against CPL are several and span in time from 1986 to 2015. There are five separate children who were the alleged victims. The allegations involve inappropriate touching, fondling of genitalia, oral sex and penile/vaginal penetrative sex. The children were aged between 10 to 13 years old, apart from the 1986 allegation which occurred when the child was 4 or 5 years old and continued for ten years. The children were either in the care of CPL’s household as foster children or were family members and biologically related to CPL. Therefore, CPL was in a position of trust and obligation to the children. These matters are very serious.

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

32. The several allegations occurred over time spanning 1986 to April 2015.

c)   The age of the person at the time the offences or matters occurred.

33. CPL was 41 years old when the first allegation occurred in 1986 and 71 years old when the most recent allegation occurred in April 2015.

d)   The age of each victim of any relevant offence or conduct at the time it occurred and many matters relating to the vulnerability of the victim.

34. The age of the victim when the 1986 allegations occurred was 4 or 5 years old and the abuse continued until she was 14 or 15 years old. The other victims were between 10 and 13 years old at the time of the allegations. The alleged victims were vulnerable as each was in the care of CPL’s household as foster children or family members and the children were therefore, trusting of and obligated to CPL, given his position of power and responsibility as an adult in the household.

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

35. The difference in age between CPL and the victims ranged from 35 years to 59 years. The victims were children at the time and knew CPL as they were biologically related to him or were in the care of his family and household as foster children or by other out-of-home care arrangement.

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

36. Given the age difference between CPL and the alleged victims and the fact they were under 13 years of age when the abuse started, CPL would have known that each of the alleged victims was a child.

g)   The person’s present age

37. The present age of CPL is 73 years of age.

h)   The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

38. CPL has a number of offences on his criminal record that occurred between 1961 to 2010. The main offences are driving matters including unlicensed driving, driving under the influence, and drive whilst disqualified. The most recent offending was in 2010 when CPL was convicted of obtaining financial advantage by deception relating to overpayment of social security payments. CPL has no violent offending or matters of sexual assault on his record. However, as already stated he is the subject of an ongoing JIRT investigation for alleged child sexual assaults in 2015. He has also been the person of interest in several previous police investigations for child sexual assault matters.

39. Since April 2015, FACS imposed a condition on CPL and AB in relation to AB’s out-of-home care placement that CPL is not to spend overnight time at his partner’s home and is not to have any unsupervised access to any children. In July 2015 FACS received information that an 8 year old boy, who was in AB’s care spent 3 nights with CPL. The child rode his bike to CPL’s home, stayed overnight and slept in CPL’s bed with CPL (whilst fully clothed). AB allowed the child to stay with CPL as the child was suffering ‘separation anxiety’ from CPL. This was in breach of the condition of the placement and FACS investigated the matter but did not find that anything inappropriate occurred. They confirmed the child was very attached to AB and the placement with his family. However, FACS was very concerned by the lack of insight displayed by CPL and AB, in allowing the breach of placement to occur. CPL agreed in evidence that he allowed the child to stay overnight with him but only for one night (and not three nights as reported). CPL also seemed unclear as to the conditions imposed by FACS and indicated he had not been advised of the condition except through his partner, AB. The respondent confirmed the conditions were discussed in a meeting that CPL attended in April 2015, but the conditions were not put in writing to him until a letter from the respondent to him dated 15 February 2017. CPL stated in evidence that he understands the FACS condition regarding having only supervised time with children and will continue to comply with this condition.

i)   The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

40. CPL was assessed by forensic psychologist, Dr Seidler who expressed concern about granting CPL a WWCCC. In her report, she stated:

[CPL] is considered to pose a Moderate risk of future sexual abuse. I note that age would normally considered to be a protective factor however, in this case, given the recency of allegations of sexual abuse, I have discounted age as a risk reducing factor in this case. I also have concerns that [CPL] would not be able to self-manage given his limited insight, poor intellectual functioning and lack of understanding of his responsibilities as an adult in child safety. For these reasons, the most sensible risk management strategy at this time would be reducing opportunity for abuse through limiting his access to children in an unstructured and unsupervised setting. In terms of future risk, if one assumes the previous allegations against [CPL] are factual for present purposes, they represent a similar pattern of targeting young pre or peri-pubescent female children known to [CPL] whom he can gain access to and sexualize in order to abuse.

41. The Tribunal noted during his evidence, that CPL had some difficulty in expressing himself in response to questions. He did say that if he received a report of a child being sexually abused, he would report the matter to the police. However, he was not able to say why children may be vulnerable and why there is a need to impose risk management and protective strategies in the care of children.

42. Each of the several allegations of child sexual abuse from five different persons were put to CPL in cross-examination and he dismissed the allegations as ‘lies’. In assessing risk and likelihood of repetition, the Tribunal would be assisted by having more information and detail, from CPL’s perspective as to how the allegations came to be made and any possible reasons or explanations for the ‘false allegations’ and ‘lies’. However, CPL did not offer any explanation or insights other than blanket denials.

43. The sexual abuse of children causes devastating impacts on children that can lead to life-long trauma and detrimental consequences.

j)   Any information given in, or in relation to, the application.

44. CPL stated in his affidavit and in evidence that:

1. He has never been charged with or convicted of any sexual assault matters or matters of violence;

2. He has been in a supportive relationship with his spouse for the last nine years and he has helped her in the care of the children and foster children;

3. He has a very strong and safe relationship with one of the foster children who he has helped raise from birth with his spouse and this child is now suffering due to not being able to spend regular and one on one time with CPL.

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

45. The respondent relied on the decision of FACS in April 2015 to ensure CPL has no direct access to children by imposing a condition on the out-of-home care placement to this effect. This decision has not changed and is a clear expression of FACS’s view that CPL is a risk to the safety of children.

46. The respondent submitted that some of the child complainants in the reports from FACS did not feel supported by AB or the family in making the complaints. In a FACS report relating to the allegation by Child 1 against CPL, AB is alleged to have been very angry with Child 1 for making the allegation and is reported to have said, “She wouldn’t want to come back to [regional town], she wouldn’t be at risk from me, but she doesn’t want to come back here”. In evidence AB denied not supporting Child 1 or any children in her care if they wished to make complaints about their placement or carers.

47. The respondent also submitted that in July 2015 either CPL or AB, or both pressured Child 3 to retract her allegation against CPL to the police. Under cross-examination during the hearing, both CPL and AB agreed they discussed with Child 3 that she should tell the truth but they denied asking or pressuring Child 3 to retract her report about CPL.

Consideration

48. The respondent submitted to the Tribunal that the evidence before it was insufficient to make any positive findings about whether the allegations against CPL of sexual abuse are true. That is, there were no signed statements or signed records of interviews from any one of the complainants. None of the allegations resulted in criminal charges or were tested in Court. The respondent, instead, relied on the number and pattern of allegations spanning 30 years against CPL, which enables the Tribunal to find he is a risk to the safety of children.

49. In BKE v Office of Children’s Guardian [2015] NSW 523, Justice Beech-Jones said of the correct approach to fact finding and the ultimate question for the Tribunal in the risk assessment process it 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 there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

50. The Supreme Court has recently provided further guidance to the Tribunal in assessing risk to the safety of children. In Office of Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison provided two propositions:

(a)   The Tribunal should first consider whether (a) “positive findings” can be made as to any alleged act(s) of wrongdoing on the balance of probabilities; or (b) whether the Tribunal has “no hesitation in rejecting the allegations as groundless”; and

(b)   If no “positive findings” can be made, unless the Tribunal can determine that the allegation is “groundless”, the Tribunal must consider the question of risk; whether on the evidence there is a risk of harm occurring (eg sexual abuse, etc).

His Honour said

Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the applicant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance”.

51. On the evidence before it, the Tribunal is not satisfied, on the balance of probabilities, that CPL committed the alleged child sexual assault offences being the matters that triggered the cancellation of the WWCCC. However, given the number of allegations from different people, some from different locations and at different times, the Tribunal does not find that the allegations are groundless. Further, the Tribunal retains “a lingering doubt or suspicion” about the child sexual assault allegations and the information and material properly before the Tribunal. That is, there is a pattern of allegations of child sexual abuse against CPL spanning 30 years. There were five young girls who were interviewed and four of them made allegations of sexual assault against CPL. The victims were young or pre-pubescent and they were vulnerable as each was in the care of CPL and his family as either a family member or as a child in out-of-home care. The allegations were made at different times by different persons, some located in different areas and some without any knowledge of the other complainants.

52. The Tribunal also relies on the expert report of Dr Seidler who found that CPL posed a moderate risk of future sexual abuse. She expressed concerns about the potential CPL has for the sexual abuse of children and expressed concerns about CPL being granted a WWCCC.

53. The Tribunal found that CPL, when giving his evidence, demonstrated little or no insight or understanding of the vulnerability of children and the importance of protective strategies whilst caring for them.

54. For these reasons the Tribunal finds that CPL poses a risk to the safety of children. Having found the applicant poses a risk to the safety of children, there is no requirement for the Tribunal to address the further criteria set out in s.30(1A) of the Act.

Orders

55. The Tribunal affirms the respondent’s decision to refuse to grant the applicant a Working with Children Check Clearance.

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

Registrar

Decision last updated: 22 June 2017