CTM v Children's Guardian

[2016] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CMT v Children’s Guardian [2016] NSWCATAD 280
Hearing dates:	12 August 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member A Jones, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 31 March 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 63 of the Crimes Act 1900 (NSW) for assault with intent to rape - 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 (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth)
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 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 CFT v Children’s Guardian [2016] NSWCATAD 92 CHB v Children’s Guardian [2016] NSWCATAD 21 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 New South Wales Bar Association v Stevens [2003] NSWCA 95 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:	CMT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Karp (Respondent)   Solicitors: Bennelong Legal/ Down Under Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610202
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

Introduction

1. The applicant is known by the pseudonym “CMT” in these proceedings in order to protect the identity of the applicant and any other person’s privacy. On 31 March 2016 CMT filed in the Tribunal an application for an enabling order under section 28 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”).

2. The applicant applied for a working with children check clearance on 15 February 2016. On 4 March 2016 a notification letter was sent by the Children’s Guardian to the applicant informing him that due to his conviction of an offence under section 63 of the Crimes Act 1900 (NSW), of assault with intent to rape, he was not eligible to be granted a Working with Children Check Clearance.

3. The Act came into force on 15 June 2013. The amendments introduced into the Act inserted by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015 apply to this particular matter: Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. These amendments introduced amongst other things, an additional matter in section 30(1A) which reads:

(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.

4. It was held in CHB v Children’s Guardian [2016] NSWCATAD 21, at [107]

As with the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267

5. The provision will thus be considered at the appropriate juncture once the risk has been assessed.

6. 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.

7. 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. An enabling order would permit the applicant to work with children in any child-related work even though the applicant may seek 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

8. The matter was commenced by an Application filed 31 March 2016 attaching a letter from the Children’s Guardian dated 4 March 2016. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

1. Application filed 31 March 2016 attaching letter from the respondent pursuant to section 18 of the Act dated 4 March 2016: Exhibit A1;

2. Affidavit of the applicant filed 7 July 2016: Exhibit A2;

3. Affidavit of the applicant’s wife: Exhibit A3;

4. Report by clinical psychologist I W Kilpatrick dated 15 June 2016 and filed 23 June 2016:Exhibit A4;

5. Submissions of the applicant filed 14 July 2016: Exhibit A5;

6. Documents filed by the respondent on 27 May 2016: Exhibit R1;

7. Documents filed for the respondent on 9 June 2016: Exhibit R2;

8. Further Documents filed for the respondent on 29 July 2016: Exhibit R3;

9. Static 2002R Coding Form filed for the respondent on 5 August 2016: Exhibit R4;

10. Respondent’s Outline of Submissions dated 22 July 2016: Exhibit R5;

9. The Tribunal received and was assisted by the written submissions provided by both the applicant and respondent.

10. 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

11. The Act came into force on 15 June 2013, as previously stated.

12. 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.

13. 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.

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

15. 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”

16. 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.”

17. 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).

18. The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(aa) 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.

19. An enabling order is 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.”

20. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act and may oppose or support the application.

21. 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 that the applicant obtains a working with children check clearance. The nature of the work is irrelevant, if it simply involves child related employment.

Standard of Proof and Onus of Proof

22. 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

23. 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.

(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.

(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.”

24. The Children’s Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence.

25. 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].

26. 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

27. 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 the 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.

28. 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.

31. In CFJ v Office of the Children’s Guardian [2016] NSWSC 1625, at [84] Justice Schmidt found that the Tribunal was correct in its application of the principles previously set out in these reasons.

32. In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant pleaded guilty to that offence. The applicant has also been charged with other offences which are referred to in more detail later in these reasons.

Other matters

33. 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.

34. 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: 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.

35. 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.

36. 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

37. The evidence received by the Tribunal is required to be considered under each of the 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

38. The offence is a serious offence. The applicant was convicted on 30 April 1982 of the offence of “assault with intent to rape” for which he was convicted and sentenced on the same date to 6 months periodic detention. There are no remarks on sentence provided in the material before the Tribunal. There is transcript of the committal proceedings in the Local Court. The victim was cross-examined in the committal proceedings.

39. The offence occurred on 31 May 1981. The applicant participated in a record of interview with the police on 1 June 1981. The applicant agreed that he went to an address at which he previously lived. The applicant saw a woman through the front bedroom window. The applicant knocked on the door to leave a forwarding address and a young woman answered the door wrapped in a towel. The young woman found and gave him a pen to write the forwarding address on a piece of paper. The applicant then left the premises but determined to go back to the premises to have sexual intercourse with the young woman. When he arrived at the front door he noticed that there was a key in the lock. The applicant entered the home without announcing himself. The applicant proceeded to the bathroom where he found the woman standing in a bath tub with a towel wrapped around her. The applicant picked her up out of the bath, threatened to kill her if she did not have sex with him, and carried her to the bedroom and put her down on the bed. The applicant threatened her again and proceeded to commence to have sexual intercourse, after removing his clothing. The applicant said he changed his mind before he had sexual intercourse with her and then proceeded to dress himself and left the premises. The victim did not consent to sexual intercourse with the applicant. The victim alleged that he did not have an erection when he stopped attempting sexual intercourse. The applicant then went back to the premises to obtain the piece of paper he had previously left with the young woman. On his way back to his car another young woman arrived. The applicant told police that he was intoxicated from drinking Victorian beer.

40. The Tribunal is satisfied on the balance of probabilities that the record of interview sets out accurately how the event occurred. The victim’s cross examination in the committal proceedings together with the admissions in the record of interview provide sufficient detail for the Tribunal to be satisfied to the requisite standard that the events occurred as set out in the previous paragraph.

41. The applicant in 1989 was also charged with ‘assault female’ for which the applicant received a sentence under the then section 556A of the Crimes Act 1900 (NSW), by way of a fine and released upon entering a good behaviour bond for a period of 3 years. The circumstances of that offence were that the applicant was alleged to have visited the premises of the victim to ask to borrow something. When the victim walked past him he grabbed her by the shoulders and pulled her towards him. The applicant was alleged to have then said that he wanted to have sex with the victim. The victim said “No” and walked away. The applicant then left. The applicant said that he merely touched her on the shoulder and did not hurt her. The applicant says there was a misunderstanding which went too far. The applicant says he realised that it was the wrong thing to do. In his statement to the police the applicant said that he knocked on the neighbour’s door who invited him inside. When he was inside the applicant asked whether her husband was home and he wasn’t. The applicant then asked to borrow an extension cord and she picked up her keys for her car and walked towards the applicant. As she got close to him he put his hand on her shoulder and said to her words to the effect that he wanted to make love to her and he thought she wanted to make love with him. The neighbour said “No”. The applicant says that he “let go” and walked out the door.

42. The Tribunal accepts on the balance probabilities that this version of events set out in the previous paragraph is what happened. The applicant told Mr Kilpatrick the psychologist who gave evidence that the victim was aggressive and confronting so he pushed her away. Clearly, what the applicant told Mr Kilpatrick is not what occurred.

43. The applicant was also the defendant on 6 September 2006 in relation to an Apprehended Violence Order which was brought by police to protect his sister. The applicant left an abusive message on his sister’s voicemail. The applicant threatened her. The applicant was alleged to have said: “wait till I get my hands on you, stupid mongrel, do what you want to do, ring me if you want to. I’ll be glad to take the fucking phone call you stupid maggot. You haven’t heard the last of this you stupid bitch, you’re going down big time.” The order was made by the Local Court for 12 months. The Tribunal finds on the balance of probabilities that the events occurred as set out in this paragraph.

44. On 3 May 2006 police were called to a neighbourhood dispute between the applicant and his neighbours. It was alleged that the applicant was punched in the arm and the neighbours alleged that the applicant was swearing at them. On the balance probabilities this event occurred as recorded by the police.

45. On 19 February 2006 a report was made to the police that someone had thrown out of a car window a can over which the applicant drove. The applicant overtook the vehicle and asked them to pull over from his car, and an argument ensued. The police contacted the driver of that vehicle who alleged that he was approached by an aggressive male who drove alongside his vehicle at the time. No charges were laid against any person. The applicant did not recall this incident and had nothing further to say about it in the Tribunal hearing. The Tribunal has no reason to doubt the accuracy of the record produced and finds on the balance probabilities that this occurred as set out in this paragraph.

46. On 28 July 2003 an incident occurred at KFC where the applicant allegedly told another person to get to the end of the queue because they had pushed in. That person became agitated and started swearing. The applicant allegedly grabbed that person by the throat and pushed him up against the wall and told him to calm down. That person went to the front entrance to prevent the applicant from leaving and threatened the applicant. The police obtained details from the applicant who did not wish to proceed with any charges against that other person. There was no further police action. The applicant did not recall this event and had nothing to say about it in the Tribunal hearing. On the balance of probabilities the Tribunal finds that the events occurred as recorded by the official record which is quoted.

47. The applicant has not undertaken any anger management courses because he considers that he does not need to complete such a course. It would appear that a common thread in these incidents is a level of anger and aggression which the applicant does not realise is there or which he cannot control.

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

48. The disqualifying offence occurred approximately 35 years ago.

49. The conduct of the applicant since that time has been the subject of criminal proceedings and since then the applicant has engaged in abusive and intimidatory behaviour in his workplace and in public.

50. The lapse of time between the disqualifying offence and the current application is 35 years.

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

51. The applicant was aged 18 at the time of the disqualifying offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

52. The victim of the disqualifying offence was aged 25 years at the time of the offence.

53. The victim was observed by the applicant in her bedroom prior to his attendance at the front door. The applicant determined that he would have sexual intercourse with the young woman and returned to the premises. The victim was in her own home having a shower and was vulnerable due to her inability to physically resist the applicant and due to the stealth and element of surprise which he utilised to commit his criminal offence.

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

54. The difference in age between the victim of the disqualifying offence and the applicant is 7 years. The victim was older than the applicant.

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

55. The victim was not a child. The offence had nothing to do with children.

The person’s present age

56. The applicant is currently 53 years old.

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

57. The applicant has a criminal record to which reference has already been made under a previous sub heading.

58. The applicant was given the benefit of a section 556A of the Crimes Act, good behaviour bond for the offence of assault female 27 years ago. The equivalent sentencing provision today is section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Act provides in section 5 that “conviction” is defined as including “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. In other words, for current purposes the section 556A bond is treated under the Act as a ‘conviction’. The ‘conviction’ may be taken into account by the Tribunal in assessing the risk the applicant may pose to children.

59. The applicant has been the subject of disciplinary action in the workplace. On 5 September 2003 the applicant was alleged to have had shown aggressive behaviour and abusive language towards the Manager. On 3 April 2003 the applicant was alleged to have used abusive language, rudeness, and an unprofessional manner with contractors. The applicant’s previous employer stated in a letter dated 2011 that they have no reason to believe that the applicant would pose a risk to the safety of children.

60. The applicant provided evidence from his wife which states that he is a model father and husband. The applicant has not come to the attention of the police for 10 years. There is, however, clearly a tendency to aggression which has remained during the applicant’s adult years.

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

61. The applicant relies upon his evidence and that of his psychologist to support his assertions that he does not pose a risk to children.

62. The applicant admits that there have been times when he has been angry when people are doing something he thinks they should not be doing, and that people do not take kindly to his approach when being confronted robustly by him. The applicant says that he would never treat a child in that way.

63. There is no evidence that the applicant has harmed children. The message which the applicant left on his sister’s answering machine was clearly intended for her but was also directed to his nephew who is under the age of 18 and a child for the purposes of this assessment.

64. The principles which are relevant in assessing the likelihood of repetition of abusive behaviour in relation to children are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes of and the ability to address the risk of further threatening or damaging behaviours expressing the underlying psychological issues of a perpetrator of violence, are relevant matters to be considered. There is no in depth analysis provided to the Tribunal of the underlying psychological motivators for the offence other than some anger. There is no exploration provided to the Tribunal of the explanation of the capacity of the applicant to behave in the way he did. Nor is there evidence as to the steps taken to address these issues in a reparative manner by some form of considered analysis by the applicant, except to say that there has been a passage of time and reduction of alcohol intake which are positive steps, but not apparently sufficient steps to explain and prevent a repetition of the behaviours.

61. The written evidence from Mr Kilpatrick, psychologist is generally supportive of the applicant and identifies that he has a low risk of reoffending. However, Mr Kilpatrick’s opinion is not based upon the facts which have been found by the Tribunal. If the score pursuant to the Static-2002R was adjusted to take into account an accurate history, the risk of reoffending is no longer low. The evidence of Mr Kilpatrick is accorded little weight in those circumstances because it is based upon incorrect factual assumptions.

62. If there were to be a repetition of the conduct clearly that would be of highly adverse impact upon the safety and well-being of any children who might be the victims or witnesses to such conduct. The victims of the disqualifying offence and the applicant’s other conduct were not children.

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

67. The applicant has provided information which he considers appropriate for the Tribunal to consider. The material received by the Tribunal is set out earlier in these reasons.

68. The psychologist Mr Kilpatrick was also of the view that the applicant may have been reluctant to admit his faults and shortcomings.

69. The applicant submits that having served a sentence for his crime, he will be punished twice if he does not receive an enabling order.

Any other matters that the Children’s Guardian considers necessary

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

71. The applicant applied for a clearance from the NSW Commission for Children and Young People and was refused an order on 25 October 2011. The reason for refusal was that Commission was unable at that time to determine that the applicant did not pose a risk to the safety of children.

72. The Children’s Guardian submits that the applicant’s conduct involved behaviours which are of significant concern and he should not be granted an enabling order. The Children’s Guardian submitted that the applicant has not discharged the onus of proof.

73. The Children’s Guardian also submitted that a reasonable parent would not permit their child to have unsupervised contact with the applicant.

CONSIDERATION AND DETERMINATION

74. The applicant is now an adult of more mature years than when he committed the disqualifying offence 35 years ago. The applicant has had the benefit of time to consider his offending behaviour.

75. The applicant submits that he has put in place changes to his lifestyle after he committed the offence. The steps he took were to reduce the quantity of beer that he drank on a regular basis, and to change the social group with which he associated. The applicant decided to live a good and respectful life. The applicant acknowledges that apart from verbally “lashing out” from time to time he believes that he has achieved his goals. The applicant accepted what he did was wrong and with the benefit of hindsight says that he was overwhelmed by coming to the city from a country town to live on his own to start an apprenticeship, with all the freedoms associated with moving out of home. The applicant states that he pleaded guilty to the offence. This would appear to have been done after committal by the Local Court for trial in the District Court.

76. The periodic detention punishment which the applicant received was apparently a terrible experience for him. The applicant says that it is a constant reminder of his responsibility to be a very good citizen.

77. Until there is an acknowledgement of the applicant’s behaviour and appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. This is a well-recognised aspect of risk assessment particularly in relation to the risk posed to vulnerable children. The applicant has clearly had a problem with anger which persisted throughout his adult development. The applicant has not undertaken any anger management counselling or therapy, but has restricted his alcohol intake and attempted to change his lifestyle.

78. The applicant has been convicted of one serious offence 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.

79. The behaviour, if repeated, would do significant harm to any victim. The paramount principle under the Act includes protection of children from suffering abuse. Any child victim or witness will suffer serious consequences or experience traumatic psychological and physical harm.

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

81. Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is remorse exhibited by the applicant. It is difficult to distinguish that remorse from the effect of punishment for the crime which the applicant committed.

82. The legislature has proscribed behaviour which results in criminal convictions and classified it as sufficient to render the applicant for a clearance subject to a presumption that the offender is a risk to children. That behaviour does not have to involve allegations or convictions relating to child victims. It is clear that offences listed in Schedule 2 of the Act involve crimes of violence, or have a sexual element or some aspect of violation of the personal integrity of another person, or serious harm to a living creature.

83. In this matter there has been a mixture of sexual and physical violence in the behaviour exhibited by the applicant. The steps which the applicant has taken to change his lifestyle and the length of time since his first offence 35 years ago have been taken into account by the Tribunal. The passage of time has not changed the underlying issues which led to the offending behaviour and subsequent angry and abusive incidents. There appears to be a sense of entitlement underlying the actions of the applicant to correct other people’s behaviours, and pursue the applicant’s own desires using force if the victim is not compliant. The applicant clearly misunderstood the social boundaries which should have contained his behaviours. The evidence does not show that the applicant has developed insight to undertake anger management counselling or similar self-development courses.

84. 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. The effect upon the applicant of the outcome of his application is not the primary concern of the Tribunal: the protection of children is the paramount principle.

85. 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.

86. 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. The type of offence which the applicant committed creates the presumption that he is a risk to the safety of children. The applicant bears a heavy onus to prove a negative.

87. Having regard to all of the evidence 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 thus cannot be satisfied that the applicant does not pose a risk to children.

Section 30(1A) Matters

88. Because the Tribunal has found that the applicant has not proven that he does not pose a risk to children, it is not strictly necessary to consider the application of s 30(1A). This subsection only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children. The Tribunal could only make such an order if it were to be found that he does not pose a risk to the safety of children. The matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.

89. The Tribunal shall consider this provision so that, if the conclusion that the applicant does pose such a risk is wrong or if there is later found to be an error in the Tribunal’s reasoning leading to that conclusion, it is necessary to express a view as to the issue which would arise under s 30(1A).

90. The Tribunal agrees with the submission that a reasonable parent would not permit their child unsupervised contact with the applicant if they were aware of all the circumstances of which the Tribunal is currently aware. It is not in the public interest to make such an order. The public interest is to be given significant weight: see for example New South Wales Bar Association v Stevens [2003] NSWCA 95.

Conclusion

91. 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 on the applicant to prove that the applicant is not such a risk.

92. 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 31 March 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: 29 November 2016