Cpu v Children's Guardian

[2017] NSWCATAD 131

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CPU v Children’s Guardian [2017] NSWCATAD 131
Hearing dates:	6 October 2016
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member S Davison, Senior Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – working with children check clearance – enabling order – applicant is a “disqualified person” by reason of a 2010 conviction for the offence of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900 – the victim was not a child – the applicant was sentenced to four years imprisonment with a non-parole period of two years - as a “disqualified person” the applicant is presumed to pose a risk to the safety of children unless he proves the contrary – whether the applicant discharged his onus - onus not discharged
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CPU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Chhabra for the Applicant G Moore for the Respondent   Solicitors: Cain Kensit Messenger, Solicitors and Attorneys for the Applicant Office of the NSW Crown Solicitor for the Respondent
File Number(s):	1610372
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Introduction

1. The applicant, CPU, seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act). The applicant seeks an enabling order so that he can obtain a working with children check clearance (a clearance) as he wishes to work as a volunteer in child-related work.

2. The applicant made his application for a clearance to the respondent, as he was required to do: see WWC Act ss 13 and 28. On 10 May 2016, the respondent determined to refuse his application for a clearance under s 18(1) of the WWC Act, because he is a “disqualified” person for the purpose of that Act. He is a “disqualified person” because, on 17 September 2010, he was convicted of a Sch 2 “disqualifying offence”: see WWC Act, s 18(1). The conviction was for an offence of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900: see WWC Act, s 18(1), Sch 2 cl 1(1)(e). The victim of the offence was the applicant’s former partner and the mother of his daughter. The applicant was sentenced by the New South Wales District Court to four years imprisonment with a non-parole period of two years.

3. The applicant defended the charge on the grounds of the sexual intercourse having been consensual.

4. In proceedings for an enabling order, s 28(7) of the WWC Act contains a presumption that an applicant for such an order poses a risk to the safety of children unless he/she proves to the contrary.

5. Given the sensitive nature of these proceedings, at the initial directions hearing in this matter, Tribunal made a non-publication order under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication and broadcasting of the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child without the leave of the Tribunal. For this purpose the pseudonym CPU has been used when referring to the applicant’s name.

6. The applicant’s application was heard on 6 October 2016. At the conclusion of the hearing we made orders for the filing and serving of further submissions by the parties.

7. The applicant contends we can be satisfied, on the material before us and the applicable law, that he has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children: see WWC Act, s 28(7).

8. The respondent opposes the making of the orders sought on the grounds that the applicant has not discharged his onus, and even if we were satisfied that he had discharged that onus, the requirements of s 30(1A) of the WWC Act were not satisfied.

9. For the reasons that follow, we find the applicant has not discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children and on this ground alone we make an order dismissing his application for an enabling order. On the basis of our findings we have not considered the matters in s 30(1A) of the WWC Act. We note that the parties did not disagree as to the application of that subsection.

Relevant WWC legislative scheme

10. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows:

“3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

11. Section 4 of the Act provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration” in the operation of the Act.

12. The word “children” is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word “child” has the same meaning.

13. Subsection 8(1) of the Act prohibits a person from engaging in “child-related work”, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

14. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ, a person in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

15. Section 6 and 7 define what is meant by “child-related work.” It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. A clearance, once granted, is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

16. A “worker” is defined in s 5(1) of the WWC Act to mean:

“ … any person who is engaged in work in any of the following capacities:

(a)  as an employee,

(b)  as a self-employed person or as a contractor or subcontractor,

(c)  as a volunteer,

(d)  as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),”

17. Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants for a clearance, who are “disqualified persons.” That section relevantly provides as follows:

“18   Determination of applications for clearances

(1)  The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)  a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

…”

18. As can be seen from the terms of s 18(1), where a person is a “disqualified person” the respondent must refuse that person’s application for a clearance. That is, in such circumstances the respondent has no discretion and can make no further enquiries, as a decision to refuse the application for a clearance is mandatory in such circumstances.

19. There is no dispute the applicant is a “disqualified person” by reason of his 2010 conviction.

20. As we have already noted, s 28(7) of the WWC Act contains a statutory presumption that the applicant poses a “risk” to the safety of children, unless he proves the contrary.

21. The Tribunal has accepted the word “risk”, in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.””

22. Section 28(5) provides an applicant for an enabling order must fully disclose to the Tribunal any matters relevant to the application.

23. Section 30 of the WWC Act sets out the factors the Tribunal must consider in determining an application for an enabling order, or a review application under s 27 of the WWC Act. At the time the applicant made his application for a clearance that section provided as follows:

“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 … ,

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

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

(d)  the age of each victim of any relevant offence … 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.

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

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

(b)  it is in the public interest to make the order.”

24. In CHB v Children’s Guardian [2016] NSWCATAD 214, at [107], the Tribunal held that, in accordance with a similar provision in the equivalent Victorian legislative scheme, s 30(1A) only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children because it is satisfied the applicant does not pose a risk to the safety of children (that is, where the person is a disqualified person, that person has discharged his/her s 28(7) onus): see also ZZ v Secretary, Department of Justice [2013] VSC 267.

25. Finally, s 28(8) of the WWC Act provides that an enabling order may not be made subject to conditions.

Evidence before the Tribunal

26. In support of his application the applicant relied on the following material:

1. an affidavit sworn by the applicant on 17 August 2016;

2. a psychological risk assessment report, dated 28 July 2016, by Margaret Johnson, forensic psychologist;

3. a statutory declaration, dated 16 August 2016, made by Mr A, a friend and former solicitor of the applicant; and

4. three character references, including a character reference from his former wife and mother of the applicant’s son.

27. The respondent relied on the following documents in the following bundles of material:

1. the applicant’s criminal history, responses received from the Local Court in regard to the applicant’s sexual offending (2008) and his earlier alleged offending of common assault and destroy or damage property (2002), the applicant’s Apprehended Violence Order history, responses received from Corrective Services, Family and Community Services and previous employers of the applicant and correspondence between the office of the respondent and the applicant’s solicitor;

2. excerpts from the response received from Corrective Services in regard to the applicant’s 2008 offending and 2010 conviction. Included in this material was the Police Facts Sheet, the Trial Judge’s remarks on sentence, pre-sentence reports and parole documentation;

3. further responses received from previous employers of the applicant; and

4. relevant material produced by the Family Court, pursuant to a summons issued by the Tribunal at the request of the respondent. That material included an affidavit of the applicant sworn on 22 November 2012 and an affidavit of the victim of the sexual offence dated 19 December 2012. The proceedings related to the applicant’s application for access to his child of that relationship.

28. The applicant and Ms Johnson gave oral evidence at the hearing and they were each cross-examined by counsel for the respondent.

29. Each party also relied on their respective written submissions filed and served prior to the hearing. As we have noted, at the request of the parties orders were also made for the filing of further written submissions. The respondent filed further written submissions on 13 October 2016, together with some further material produced by the Family Court pursuant to the summons. That material included a copy of the 2011 judgement and orders of Federal Magistrates Court in regard to an access application the applicant made while in custody.

30. The applicant also filed short submissions in reply on 1 November 2016.

Consideration

31. We note the jurisdiction of the Tribunal in matters under the WWC Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

32. The term “safety to children” is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children’s Guardian [2016] NSWCATAD 65 at [9] – [15] and [67] and BFX v Children’s Guardian [2014] NSWCATAD 115 at [19] to [30].

33. In regard to the s 30(1) matters, set out below is a summary of the evidence and our findings on each matter listed in that subsection.

(a) - The seriousness of the offence with respect to which the applicant is a disqualified person

34. The applicant’s disqualifying offence occurred in early August 2008. At the time, the applicant and the victim had been involved in a relationship for a number of years. They have a daughter together and she was about 2 years of age at the time of the applicant’s offending. Six months prior to the night in question, the victim had separated from the applicant and he moved out of the family home. During that six month period there were several attempts at reconciliation between the applicant and the victim. However, three weeks prior to the offending the victim informed the applicant that she had decided to end the relationship.

35. On the night in question, the victim had gone out for a few drinks. She left her daughter in the care of her mother, at her mother’s home. During the course of the evening the applicant and the victim unexpectedly ran into each other at a local hotel. On meeting the victim, the applicant is alleged to have pestered her as to why she did not wish to give him a second chance with their relationship. It appears they spoke about this for some time, but the victim then decided to go home alone.

36. At about 4:00am that morning, the victim was woken when the applicant turned on the light in her bathroom. He told her that he had let himself in with his key. He had a key to the victim’s home in the event he needed to pick up their daughter from day care and take her home. The applicant told the victim he only wanted to talk to her. When she said he should wait until the morning the applicant asked if he could sleep in her bed. She allowed him to do this, however he was fully clothed and there was no physical contact between them.

37. At about 9:00am that morning the victim woke and showered. While she was washing her hair the applicant entered the shower and the applicant again sought to discuss the reasons for the breakup of their relationship. The victim left the shower and went into her bedroom to dress. The victim had just finished putting on her underwear when the applicant entered the room. He gave the victim a bear hug and said he wanted to cuddle and play around while they talked. The victim replied and said, “I don’t want to play, I just want to get dressed.” The applicant asked the victim for a hug which she allowed even though she did not feel comfortable about this. The applicant then positioned himself on top of her and manoeuvred himself so that he was lying between her legs.

38. The applicant continued to ask the victim about why she was breaking up their relationship. The victim became more and more agitated and told the applicant that he was being too forceful and pinning her down. After a struggle, the applicant again got on top of the victim and had sexual intercourse with her. It is alleged the applicant told the victim it was her fault in that she had brought out his bad side. He also said that if she went to the police no-one would believe her and that he would have a third party kill her family. The victim dressed and left her home.

39. After leaving her home, the victim called her mother and told her what had happened. Her mother told her to go to the police, which the victim did. Later that afternoon, police attended the applicant’s home, arrested the applicant and brought him to the local police station. He declined to be interviewed and was charged.

40. As we have already noted, the applicant defended the charge. He did not give evidence at his trial nor was he required to do so. The jury found him guilty of the offence charged.

41. The applicant was sentenced in September 2010. In his remarks on sentence, the Trial Judge noted that the offence carried a maximum penalty of 14 years imprisonment. The Trial Judge added that Parliament regarded the offence as so serious that it had also provided for a standard non-parole period of 7 years, as well as a maximum sentence.

42. The Trial Judge found that the applicant’s offending was in the lower range of objective seriousness of such offending, but it lay towards the top of that range and very close to the middle of the range of objective seriousness. His Honour found that the applicant’s offending conduct was at the lower range of objective seriousness because it was of relatively short duration, unplanned and a momentary offence. His Honour went on to say, however, that he found the offending conduct was towards the top of the lower range because it involved a breach of trust in that the victim trusted him to stay at her home. That trust he said was based on the fact that the victim had a long term relationship with the applicant and he was the father of their child. His Honour went on to say that this was a significant trust for a woman to allow a man and the applicant had abused that trust. His Honour also went on to note that in addition to this serious breach of trust the applicant had uttered a number of threats to the victim and also inflicted a number of significant bruises on her body.

34. In his sentencing remarks, the Trial Judge also referred to the impact statement the victim had prepared for the purposes of sentencing the applicant. In her statement the victim set out how the sexual assault had affected her. This included flashbacks, not being able to stay in her home again, unable to concentrate in her new job and social withdrawal.

35. We have noted the applicant was sentenced to a four-year jail term, which commenced on the day he was sentenced and expired in September 2014. His Honour also set a non-parole period of 2 years that commenced the same day as his conviction and it was noted that the earliest date on which the applicant was eligible for release was in September 2012.

36. The applicant lodged an appeal against his conviction and sentence with the Court of Criminal Appeal. That appeal was subsequently abandoned in May 2011.

37. In our opinion the applicant’s offending was serious for all of the reasons stated by the sentencing judge.

(b) - The period of time since the disqualifying offence and the conduct of the applicant since they occurred

47. The applicant’s disqualifying offence occurred eight years ago.       `

48. Since his release from prison in September 2012, the applicant has not committed any further offences.

49. Of concern, however, is the applicant’s conduct in regard to proceedings he commenced, on an ex parte basis, for access to his daughter, not long after he was charged with the disqualifying offence. We have dealt with these proceedings in more detail below.

(c) - The age of the applicant at the time the disqualifying offence occurred

50. The applicant was 35 years of age at the time of the disqualifying offence.

(d) - The age of the victim at the time of the disqualifying offence and any matters relating to the vulnerability of the victim

51. The victim was 25 years of age at the time of the disqualifying offence. As we have already noted the vulnerability of the victim lay in her trust of the applicant. That is, she trusted him when she gave him access to her home for the purposes of helping her with their daughter should the need arise and trusted him when she said he could sleep in her bed.

(e) - The difference in age between the victim and the applicant and the relationship (if any) between them

52. The difference in age between the victim and the applicant is 10 years. They had been in a relationship for some years, but separated six months earlier. Some three weeks prior to the applicant’s offending, the victim had told the applicant she wanted to end their relationship.

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

53. The victim was not a child. She was a young adult.

(g) - The applicant’s present age

54. The applicant is currently 43 years of age.

(h) - The seriousness of the applicant’s total criminal record and the conduct of the person since the offence occurred

55. In early 2002, the applicant was charged with an offence of common assault and also an offence of maliciously destroy or damage property. The incident occurred during a touch football presentation, in the beer garden of a local hotel. The applicant had been playing touch football that day and the victim had been a referee during the course of that game. The victim had penalised the applicant during the course of the game and, during the presentation, the applicant poured a glass beer over the right shoulder of the victim. After having beer poured over him, the victim turned around and the applicant punched him about six times to the left and right cheek. According to the police facts sheet, the victim was thrown to the ground by the applicant and suffered a graze to his right knee. The victim went to the police who recorded not seeing any visible signs of injury on the victims face. However, police noted the victim complained about his upper and lower jaw being painful. Two days later the applicant attended the local police station. He declined to be interviewed about the allegation.

56. In July 2002, the destroy or damage property charge was withdrawn and the Local Court found the common assault charge to be proven but did not enter a conviction. Instead the applicant was placed on a 2-year good behaviour bond.

57. On 25 December 2003, the applicant was charged with an offence of driving with mid-range Prescribed Concentration of Alcohol (PCA). He was convicted of this charge in February 2004. He was fined $600.00 and was disqualified for driving for six months.

58. Other than the 2008 sexual offence, the applicant has no further criminal record. He has, however, been the subject of a number of Apprehended Violence Orders (AVOs) between August 2008 and September 2010. These, consist primarily of provisional and interim AVOs, and one final AVO order in 2010. We understand the orders were sought to protect the victim of the 2008 sexual assault and her daughter.

59. We note the applicant was not subject to any institutional conduct charges during his imprisonment and he was released on parole at the earliest opportunity. There is also no evidence of the applicant having breached the conditions of his parole once released.

60. Other issues of concern are the Family Law proceedings commenced by, and on behalf of the applicant in regard to the applicant’s access to his daughter.

61. In late 2008, about four months after having been charged with sexually assaulting the victim, the applicant sought ex parte orders from the Local Court of New South Wales which made provision for his daughter to be placed into his full time care. The orders sought included the issue of a location order directed to Centrelink to locate the whereabouts of his daughter and a recovery order directed to the Australian Federal Police and all officers of the Police Forces of the states and territories to recover his daughter and return her to his care. The ex parte orders were made as requested and several days later the recovery order was executed by police and the applicant’s daughter was removed from the care of her mother, who was living interstate, and delivered into the applicant’s care. Eleven days later, the ex parte orders were discharged and new orders were made giving the mother parental responsibility for her daughter and ordering that she live with her mother, but spend time with the applicant each alternate weekend and one afternoon during the week.

62. When seeking the ex parte orders, the applicant swore an affidavit in which he failed to mention that he had been charged some four months earlier with the offence of sexual assault of the victim and that he was on bail pending his trial. That affidavit was relied upon during the ex parte hearing. On becoming aware of this information, the Local Court had no hesitation in discharging the ex parte orders. In the intervening period, however, the child who was 2-years-old, was forcefully removed by police from her mother’s care in Queensland and returned to her father in NSW.

63. In these proceedings, the applicant asserted he had little knowledge of what was contained in the affidavit and that he had signed what he had been asked to sign. In our opinion, this cannot be seen as an excuse for what must have been a very traumatic, and totally unnecessary, experience not only for the child but also for her mother.

64. In May 2011, the Federal Magistrates Court of Australia suspended the December 2008 orders made by the Local Court and gave the mother (the victim) sole parental responsibility for her daughter. We understand that this position has not changed since that time.

65. The Federal Magistrates Court also dealt with the mother’s application that the child travel internationally with her to Thailand, as the applicant had opposed the mother’s request that she travel with her. For this purpose, the Federal Magistrates Court also made an order that the mother could obtain a passport for her daughter without the consent of the applicant.

66. The applicant has not had any contact with his daughter since he was imprisoned, nor has he sought contact.

(i) - The likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

67. The applicant noted that, in his sentencing remarks, the Trial Judge said the applicant was unlikely to re-offend. We note the Trial Judge’s remarks were made in the context of the information before the Court for the purpose of sentencing the applicant for his offending. In this regard, the Trial Judge had found the applicant’s offending was “momentary, uncharacteristic”.

68. As we have already noted, the applicant at all times denied the charge and asserted the alleged offending was consensual. In the material he filed in these proceedings, and when assessed by Ms Margaret Johnson, his position remained the same. Yet, shortly after he was released on parole, in November 2012, the applicant swore an affidavit for the purpose of the proceedings he had initiated in the former Federal Magistrates Court, in which he acknowledged he had pleaded not guilty to the sexual assault, but he went on to say:

“ … [but] I did not ever give evidence to say that I was innocent. I wish to make it clear, if it was not in my previous affidavits before the Federal Magistrates Court, that I admit that I had sexual intercourse with Melissa without her consent.”

69. During cross-examination at the hearing, in response to a question about having made the above sworn statement four years ago, the applicant said he had always apologised to the victim. This is not, however, reflected in the affidavit sworn by the victim in the same proceedings.

70. In her report, Ms Johnson said that in her opinion the likelihood of the applicant re-offending was low. She concluded her report by stating that the applicant:

“… [appears] to be a stable and prosocial individual, who is able to participate gainfully in the community and interact with children and young people in a safe manner without presenting any obvious risk either in the workplace or in a more general sense.”

71. Ms Johnson’s conclusion was based on a consideration of the dynamic risk factors relating to the applicant’s psychological state and life circumstances and rating these under the Risk for Sexual Violence Protocol (RSVP) developed by Hart, Kropp, Laws, Klaver, Logan and Watt (2003). As noted by Ms Johnson, the dynamic factors are considered to provide an index of current “live risk”. This risk can change over time and is, therefore, amenable to intervention.

72. Ms Johnson indicated that having regard to the RSVP dynamic risk factors, the applicant would represent “no risk” of sexual abuse of a child, as his offending did not involve a child. Ms Johnson went on to identify the following matters as being protective against the applicant’s risk of any future sexual offending:

• the applicant’s conviction was perpetrated on his previous partner and not a child;

• there are no other reported concerns expressed about the applicant engaging in sexually abusive behaviour;

• the applicant does not have a notable criminal history and he does not present as inherently anti-social, either by way of attitude or lifestyle;

• there is no reported history of entrenched mental health concerns;

• there is no adult history of substance abuse of concern;

• the applicant does not present with a reported history of established sexual deviancy, sexual self-regulation concerns, hyper sexuality or inappropriate sexual interests;

• the applicant has had long term experience as a mature adult with adult intimate relationships;

• the applicant does not represent with concerns in relation to his interpersonal functioning;

• the applicant has participated productively and professionally in the community over his life span; and

• the applicant was not a victim of sexual abuse.

73. Ms Johnson concluded by stating that: “there were no recommendations with respect to strategies required to manage risk”. In her report Ms Johnson also noted that while in prison, the applicant had completed an alcohol and drug program and the sex offender’s treatment program and management program. On this basis she said that, in her opinion, the applicant now had a greater awareness into what constitutes abusive and non-abusive sexual behaviour.

74. In cross-examination by counsel for the respondent, Ms Johnson confirmed that, in conducting her assessment, she had relied on the history the applicant had provided as being accurate. She said it was not her role to check the veracity of what he had told her. She said that during his interview they had discussed the applicant’s view of consent to sexual intercourse and sexual boundaries. She said they did not discuss the impact of the offending on the victim, as the applicant had told her he was innocent.

75. During cross-examination, Ms Johnson also conceded that people who fail to acknowledge that they perpetrated the offence for which they were convicted do not undergo the offender’s treatment program. As pointed out by counsel for the respondent, the program was not available at the prison where the applicant was located, so he could not have attended the program in any event.

76. In her report, Ms Johnson recorded the applicant as having told her that his Family Court action continued regarding the applicant’s rights to have contact with his daughter. He advised that he was not permitted to have any contact and that he had been informed that his daughter had been told that he was dead.

77. On being informed of the applicant’s 2012 admission in the former Federal Magistrates Court and that these proceedings were no longer pending, Ms Johnson said she was “annoyed” that she had not received all the relevant material. She said had she been provided with that material she would have asked the applicant questions about this and it would have impacted quite considerably on her assessment.

78. Finally, Ms Johnson also agreed with counsel for the respondent that the RSVP factors were not child specific. In that regard, she agreed no person presents as no risk and on the basis of the 2012 admission she would want to reinterview the applicant.

79. In our view, in light of Ms Johnson’s oral evidence, we can place little weight on her conclusions in so far as they relate to the applicant’s risk to the safety of children.

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

80. In his affidavit the applicant explained that he has spent many years assisting his extended family both emotionally and materially. He has been required to do so due to the early death of three of his brothers, who each had a wife and children. He also lost his mother during that time. He was very close to his mother and he found her passing very hard to deal with. The applicant briefly dealt with his offending and his relationship with his former wife (the mother of his son) and that of the victim (the mother of his daughter). The applicant has an ongoing relationship with his son and since being released from prison the applicant has been employed and actively involved with his community. He explained that not having a clearance impacted on his ability to be more involved in his son’s sporting activities, for which he has relevant training and experience.

81. In his Statutory Declaration, Mr A said that the applicant’s application for an enabling order ought to be viewed with merit and granted. As we have already noted, Mr A is a solicitor and he initially acted for the applicant in the criminal proceedings. He is also a personal friend of the applicant and acted for him in the proceedings initiated by the applicant to obtain access to his daughter. Mr A said he has known the applicant for 40 years and he has seen the applicant interact with his own four children, the children of his friends and the applicant’s own son, who is now 12 years old. Mr A went on to say he has no concerns about the applicant posing a risk to the safety of children.

82. In her reference, the applicant’s former wife and mother of his son noted that the applicant’s conviction was not child related. She also made reference to the applicant’s interest in sport and that it was for this purpose that he was seeking a clearance. In this regard, she said she had no hesitation in having the applicant being issued with a clearance. The remaining two references are from a man and a woman who have known the applicant personally for many years. Each referee makes reference to the applicant’s conviction in relation to the disqualifying offence. Both referees have children of their own and they each state the applicant babysat for them on many occasions.

83. The applicant’s referees, however, do not appear to have any knowledge of the evidence that was before the jury in regard to the criminal proceedings or knowledge of the applicant’s proceedings in regard to seeking access to his daughter.

84. In his written submissions, counsel for the applicant submits that the presumption that the applicant poses a risk to the safety of the children is rebutted. In summary, counsel pointed to the report of Ms Johnson, the applicant’s ongoing relationships with his son and the children of his brothers and friends, the applicant’s acknowledgement of concerns of the victim, the Trial Judge’s remarks that the applicant’s disqualifying offence was uncharacteristic and unlikely to reoccur, and the fact that since leaving prison, the applicant has been fully employed and is a valued member of the community.

(k) Any other matters that the respondent considers necessary

85. The respondent submits, on the material before us, we cannot find that the applicant has discharged his onus. In this regard, counsel for the respondent submitted that the disqualifying offence was serious, relatively recent, and one for which the applicant has not obtained or sought any treatment. In addition it was submitted that the applicant’s conduct in the initiation of the 2008 ex parte recovery proceedings without disclosing that he had recently been charged with the disqualifying offence was a serious failure on the applicant’s part. Counsel also submitted that if it is accepted that the applicant’s statement in his 2012 affidavit, filed in the former Federal Magistrates Court, is true then, as asserted by the victim in her statement filed in that Court, the applicant unnecessarily had the victim subjected to three days of strenuous cross-examination by his counsel at his 2010 trial. If the statement is found not to be true, then arguably the only purpose of the statement was to obtain a forensic advantage in his access proceedings in that Court.

Risk assessment conclusions

86. As we have noted, the first issue for us to determine is whether, having regard to the material before us and taking into account the matters/factors prescribed in subs 30(1) of the WWC Act, the applicant has discharged his onus and rebutted the presumption that he poses a real and appreciable risk to the safety of children today if he were to be granted a clearance to work in child-related work. In making our determination we must also have regard to the paramount consideration in s 4 of the WWC Act.

87. We accept the applicant has had a difficult family life. We also accept that there are a number of factors in favour of the applicant. He has maintained a good relationship with his former wife, his son and his friends. As noted by Ms Johnson, the applicant does not have a notable criminal history and he does not present as inherently anti-social, either by way of attitude or lifestyle. There is no evidence of adult substance abuse or history of entrenched mental health issues. The applicant has remained engaged with his community since his release from prison and has at all times been employed. It is eight years since the applicant committed his disqualifying offence and there is no further record of any criminal offending.

88. While the applicant has only been convicted of one disqualifying offence, we find the applicant’s offending was serious and note it was found to be a very serious breach of trust. If the applicant were to be granted a clearance to work in child-related work he would at all times be in an important position of trust while engaged in such work. Hence, any future breach of trust in that role is likely to have impact on children.

86. The applicant’s offending was relatively recent and he completed his sentence two years ago.

87. While the victim of the offence was not a child, it is a serious offence for which the applicant did not acknowledge any culpability until 2012. As pointed out by the respondent, it is difficult to accept that this acknowledgement was for a purpose other than to obtain a forensic advantage in his litigation to obtain access to his daughter. That is, we agree it cannot be seen as a genuine acknowledgement of guilt because he has continued to maintain his innocence since that time by asserting that the sexual intercourse was consensual. In our view this demonstrates a lack of insight and understanding of his offending, especially as he has not sought to address this issue since his release from prison.

88. The applicant’s disingenuous 2012 acknowledgement of guilt is not the first time the applicant sought a forensic advantage in proceedings concerning his daughter. His 2008 failure to disclose to the Court that he had been charged with sexual assault of the mother of the child the subject of the proceedings before that Court, and was awaiting trial, directly impacted on his daughter in that she was suddenly and forcefully removed from her mother’s care. Again, the applicant does not appear to have any insight into the seriousness of his failure and the impact it had on his daughter.

89. And as we have also noted, the applicant also failed to disclose these particular matters during his interview with Ms Johnson. That failure of disclosure is of concern to Ms Johnson, whose conclusions as to risk of reoffending we have placed little weight on.

90. In our view, the above are factors that weigh against the applicant at this time, while the issue of understanding and insight into his offending remain unresolved. Hence we find, on balance, on the material before us, the applicant has failed to rebut the presumption that, for the purpose of child-related work, he poses a real and appreciable risk to children.

91. On the basis of this finding it is unnecessary for us to consider the matters in s 30(1A) of the WWC Act.

92. Hence, based on our findings the appropriate order is to dismiss the applicant’s application.

ORDER

96. The applicant’s application for an enabling order is dismissed.

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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: 27 April 2017