CVI v Children's Guardian

[2017] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CVI v Children’s Guardian [2017] NSWCATAD 76
Hearing dates:	7 February 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member A Limbury, General Member
Decision:	1. The decision of the Children’s Guardian dated 10 October 2016 to refuse to grant the applicant a working with children check clearance is affirmed. 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited.
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 – refusal of Working with Children Check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – where proceedings commenced for offences against a child. Offences include stalking/intimidation – whether applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69 Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category:	Principal judgment
Parties:	CVI (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: In Person (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	1610724
Publication restriction:	See Order (2)

REASONS FOR DECISION

1. The applicant, CVI, seeks review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (“the Act”).

2. On 21 April 2016, the applicant applied to the Office of the Children’s Guardian (the respondent) for a working with children check clearance.

3. The respondent conducted a risk assessment of the applicant, and on 10 October 2016, determined to refuse the applicant’s application for a working with children check clearance.

4. On 4 November 2016, being dissatisfied by that decision, the applicant made this application for review of the respondent’s decision.

5. The matter was subject to directions hearing during which orders were made for the filing and service of documents. On 7 February 2017, a hearing of the application was held. At the conclusion of the hearing, the Tribunal reserved its decision.

The Child Protection (Working with Children) Act

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

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

8. 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: s 8(1).

9. Section 18 sets out how the respondent is to determine an application for a clearance. Subsections 18(2) and (3) provide:

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

10. A person is subject to a risk assessment if any of the matters specified in Schedule 1 of the Act apply. These include matters in respect of which proceedings have been commenced against a person for an offence specified in Schedule 2 of the Act if the offence was committed as an adult and the person is not because of those proceedings a disqualified person.

11. In making an assessment, the respondent may consider the following factors set out in section 15(4) of the Act:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,

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

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

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

In addition, section 15(4A) provides:

The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that:

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

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

12. Having undertaken a risk assessment under section 15, on 10 October 2016 the respondent determined to refuse the applicant’s application for a clearance as she was satisfied, pursuant to section 18(2), that the applicant poses a risk to the safety of children.

Review of respondent’s decision

13. Section 27 of the Act makes provision for administrative review by the Tribunal of decisions of the respondent, including a decision to refuse a working with children check clearance.

14. Subsection 30(1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the respondent may have regard when conducting its risk assessment):

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.

15. In addition, section 30(1A) of the Act provides:

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.

16. In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children.

17. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“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."”

18. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [39], and BKE at [26].

19. To assist in the interpretation of the Act, regard may also be had to the second reading speech for the Bill which became the present Act. Mr Dominello, the then Minister for Citizenship and Communities, on 13 June 2012 stated:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

20. The Minister stated further:

"While the Bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

21. In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

Role of the Tribunal

22. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children’s Guardian. Administrative Decisions Review Act 1997, s 63.

23. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

24. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]

25. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.

26. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.

27. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but 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 Balencio (1987) 8 NSWLR 436.

28. In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

“33 … [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.”

29. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Harrison J noted that in determining risk the Tribunal first had to consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had “no hesitation in rejecting the allegation as groundless”. His Honour explained that even if no positive finding can be made be “[the] court or tribunal is still obliged to consider the question of risk that may be indicated by all the facts, unless it is determined that the allegation is “groundless””.

30. At [16] and [17] his Honour stated:

Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred……..”

Administrative Decisions Review Act 1997

31. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders:

(a) to affirm the decision of the respondent, or

(b) to vary the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside, or

(d) to set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal.

32. At any stage of proceedings, the Tribunal may remit the decision to the respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Burden of proof

33. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164 at [32].

34. Although the applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

35. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

36. The applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

37. The respondent tendered into evidence the respondent’s risk assessment report and documents provided by government departments and agencies, including the NSW Police, the NSW Courts, and NSW Family and Community Services.

38. The applicant relied on his application, character references, documents relating to his tertiary studies and his income and employment. The applicant also relied upon a report of Mr Sam Borenstein, Clinical Psychologist, dated 28 October 2016.

39. The applicant and Mr Borenstein gave oral evidence at the hearing and were cross-examined by Counsel for the respondent. Ms V, the applicant’s current girlfriend, also gave oral evidence

40. The evidence is now considered under each of the subheadings of sections 30(1) and 30(1A) of the Act.

(a) Seriousness of any matters that caused the refusal of the applicant’s application for a clearance

41. The matters that caused the refusal of the applicant’s application for a clearance were offences as follows:

1. Assault with Act of Indecency (3 counts) – (charges withdrawn)

2. Take/detain person with intent to obtain advantage domestic violence related - (charge withdrawn)

3. Break & Enter with intent to commit indictable offence - (charge withdrawn)

4. Aggravated enter dwelling with intent, knowing people there (charge withdrawn)

5. Stalk intimidate intend fear of physical or mental harm (domestic violence offence). Pursuant to section 32(3)(a) Mental Health (Forensic Provisions) Act 1990, charge dismissed and discharged conditionally to obey all lawful directions of Sam Borenstein Clinical Psychologist and participate in counselling as per treatment plan.

42. Each of the above offences triggered a risk assessment by the respondent notwithstanding that four of the five offences were subsequently withdrawn and there was no conviction recorded in respect of the trigger offence that was not withdrawn. The offences triggered a risk assessment as they were either offences prescribed in schedule 2 (see clause 1(1)(b) of Schedule 1), or were offence/s under section 13 of the Crimes(Domestic and Personal Violence) Act 2007 committed against a child (see clause 1(2)(f) of Schedule 1 of the Act).

42. In this matter, the trigger offences relate to a series of incidents in May 2012 involving the applicant and a 17 year female child with whom the applicant was in a prior domestic relationship. The applicant was also charged with other non-trigger offences arising out of the incidents, namely:

• Common assault (domestic violence related); and

• Dishonestly obtain property by deception.

44. Records obtained by the respondent from NSW Police and NSW Courts include witness statements from the child victim and various police officers, a transcript of a police record of interview with the applicant in 2012, a written prosecution submission for the purposes of committal proceedings, and NSW Police Full Facts. As well, the documents include the Agreed Facts tendered to the Court upon the applicant’s pleas of guilty to the trigger offence of stalk/ intimidate intend fear physical mental harm and the non-trigger offences of common assault and obtain property by deception.

45. As the trigger offences include both the withdrawn offences and one of the offences to which the applicant pleaded guilty, it is appropriate that the evidence is summarised according to all of the material produced by the NSW Police and NSW Courts as well as the Agreed Facts. The evidence which is not contained in the Agreed Facts is italicised in the paragraphs below.

46. The applicant and the victim were in a two-year relationship which ended in March 2012. After the relationship’s end, the applicant commenced harassing the victim to get back together. During 2012, the victim, who was a high school student, was working on the cash register at a local supermarket. The applicant approached the victim, who asked him to leave. The applicant refused and continued to watch the victim while she worked. At the completion of her shift, the victim went into her manager’s office. She started to receive a number of text messages from the applicant asking her to come out and talk to him. The victim sent the applicant a text message telling him to go away. The victim remained in the office until a staff member assured her the applicant had left the area.

47. The victim left the supermarket and began walking to her car. She noticed the applicant’s car was parked next to hers. The applicant moved out from behind a tree. The victim stopped walking and said to the applicant: “What do you want from me? Why do you keep coming back?” The victim walked to the driver’s seat of her car and unlocked the door. The applicant grabbed the victim’s forearm and pulled it back, saying: “I’ve got your P-Plates, unlucky”. He continued to harass the victim about getting back together and going on a holiday he had booked for them. The victim told the applicant that she wanted to go home and asked him to leave her alone. She entered the driver’s door and locked it.

48. According to victim, the applicant insisted that she open the window to say goodbye. When she opened the window, the victim alleges the applicant forced the window down further and the victim was afraid the applicant would hit her.

49. The victim started to reverse her car and the applicant stood by the driver’s door pleading with her to let him in to talk for a couple more minutes.

50. According to the victim, as she started to reverse the car, the applicant flipped the lock to the back driver’s side door and entered the back seat of the car.

51. The victim started crying and shaking. According to the victim, she stopped reversing after the applicant told her she almost hit a car. She turned the engine off and attempted to exit the car with the intention of running back into the supermarket. The applicant grabbed her arm and prevented her from exiting the car. The victim told the applicant to let go and that he was scaring her. The applicant asked the victim to sit in the back seat of the car and speak with him, which she did. The victim told the applicant that she did not wish to get back together with him.

52. The victim and the applicant sat in the back seat of the car and words were spoken. After a short period of time, the applicant got out of the car, put the P-Plates on the victim’s car and the victim drove away.

53. Later that evening, the victim received a number of text messages from the applicant. In one such message, the applicant informed the victim that he had transferred $500 from her bank account to pay for a holiday he had arranged for them to take together. Upon checking her account via internet banking, the victim saw that the applicant had in fact taken her money from her account. The victim begged the applicant to return the money via telephone calls and text messages. The applicant refused to return the money until three days later when he transferred the money back into her account, and confirmed it with a text message.

54. Later that month, the victim returned from school and was at home alone when the landline telephone rang. She picked up the phone and said “hello” but there was no reply. She hung up the phone and a short time later the victim heard a car horn beep. She walked to the front of the house and saw the applicant getting out of his car. The applicant rang the doorbell and started calling out the victim’s name. The applicant kept ringing the doorbell, knocking on the door and calling out the victim’s name.

55. The applicant remained outside the premises for about 15 minutes. The applicant went to the side gate of the house and to the rear deck before knocking on the back door. He kept knocking and the victim continued to ignore him. The applicant went to the side of the house and started throwing rocks at the victim’s bedroom window. The applicant returned to the front of the house and knocked on the garage roller door. He continued to knock on the door and send text messages to the victim, including one where he stated “I’m not leaving. This is ridiculous”.

56. At 3.05pm, the victim sent a text message to her younger sister, who would be due to arrive home school, informing her the applicant was outside of their house. According to the victim, she was scared that the applicant would hurt her sister or use her to get inside the house.

57. A short time later, the applicant talked his way into the victim’s home by convincing the victim that he needed to go to the toilet. Upon entering the premises, the applicant began begging the victim to rekindle their relationship.

58. In her witness statement the victim alleges the applicant entered her home through a garage roller door which was slightly open, and made his way up stairs to a locked glass door. The victim alleges the applicant started banging on the door and continued to send text messages to her stating that he wasn’t leaving. The victim approached the glass door and told the applicant to leave and that he shouldn’t be there. She threatened to call the police or her parents. According to the victim, the applicant started begging saying that he needed to go to the toilet. When the victim refused to open the door, the applicant got very angry and threatened to go to the toilet on the floor, and started pulling down his pants and bending over. The victim told the applicant if he promised to go to the bathroom and then leave straight away she would let him in. The applicant agreed to this and the victim opened the door. The applicant went to the bathroom, asking the victim to check his Facebook account on her phone. On his return, the victim told the applicant to leave. The applicant took the victim’s phone off her and put it on the bench away from her. The applicant picked up the victim and forced her into her bedroom. He placed the victim on her bed and pinned her down with his body weight, all the while the victim was screaming and telling the applicant to put her down, to stop and to leave. The victim alleges the applicant started kissing her, touching her breasts and rubbing her vagina, and suggested that they have “break up sex”. The victim further alleges that she was telling the applicant to stop while this was occurring, and telling him to get off her and to get out. The victim said she was scared the applicant was going to rape her and she suggested they cuddle instead, and tried to talk to him and distract him from touching her, including by saying that he should see another girl and not her. The victim alleged the applicant said to her that he would go with her (the other girl) and leave if the victim gave him a hand job. The victim alleges she agreed to this as she believed it would be better than forcefully having sex with the applicant.

59. A short time later, the victim’s mother, Mrs M, arrived at the home. Mrs M saw the applicant and demanded he leave the premises. While Mrs M was attempting to move her car from the driveway, the applicant approached her vehicle and began yelling at her and pointing his finger in her face. He also said words to Mrs M, including telling her that she was the reason that he and the victim broke up. Mrs M felt threatened and told the applicant to leave.

60. The victim and her mother reported the events to the police, and a provisional apprehended violence order was made against the applicant.

61. The applicant participated in a police record of interview during which he denied the majority of the allegations. In particular, he denied stalking the victim at her workplace and disputed the victim’s allegations about what occurred on the day, claiming that it was a mere coincidence [1] that the victim happened to be working on the day he attended her workplace. The applicant denied grabbing the victim on her arm. The applicant denied sending the victim text messages about transferring money from her account. He also denied in fact transferring money from her account and denied having access to the victim’s password on the victim’s online banking account. Rather, the applicant claimed in the police record of interview that the victim herself transferred the money to his account. The applicant also denied stalking the victim at her home. Rather, he claimed the victim let him into her home ‘straight away’ [2] . The applicant denied indecently assaulting the victim and claimed that the victim tackled him, jumped on top of him and put her hand down his pants.

    1. Exhibit R1, p 137

    2. Ibid, p 145

62. As indicated in a previous paragraph of these Reasons, the applicant was charged with a number of criminal offences. The offences of assault with act of indecency, take/detain person with intent to detain, break & enter with intent to commit indictable offence, and aggravated enter dwelling with intent were subsequently withdrawn. The Tribunal was not informed of the reasons for the withdrawal of those charges.

63. The applicant pleaded guilty to the offences of stalk/intimidate (in relation to the applicant’s conduct towards the victim and Mrs M), the offence of common assault (relating to the grabbing of the victim’s arm in the supermarket car park on 24 May 2012), and dishonestly obtain property by deception (in relation to the transfer of $500 of the victim’s funds to his own account). The Agreed Facts outline the basis to which the applicant entered those pleas of guilty.

64. The applicant relied on a report of Mr Sam Borenstein, Clinical Psychologist, dated 2013 in which Mr Borenstein stated that at the time of the offences the applicant was suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with the onset coinciding with his parent’s separation.

65. On the application of the applicant, the offences were dealt with under section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990. The Court dismissed the charges and discharged the applicant on condition that the applicant obey all lawful directions of Mr Borenstein and participate in counselling as per the treatment plan set out by Mr Borenstein in his report dated 30 September 2013.

66. A final apprehended violence order was made by the Court in 2013 preventing the applicant from coming within 300 metres of the victim’s home and workplace, and approaching the victim’s school.

67. In his oral evidence before the Tribunal, the applicant said he pleaded guilty to the offences as recorded in the Court documents. Whilst he agreed in the main to the Agreed Facts, there were some parts of the Agreed Facts which he disputed. For example, he denied he threw rocks at the applicant’s bedroom window, and claimed he was let into the house by the victim via the front door during 2012.

68. In his evidence, the applicant maintained his denial of the withdrawn trigger offences. He stated that he did not force his way into the victim’s car. He also stated that he did not break into the victim’s home and did not indecently assault the victim. In contrast to what he told the police in his record of interview, in his oral evidence before the Tribunal the applicant said that there was no sexual activity at all between himself and the victim on the day in question.

69. In cross examination, the applicant admitted to sending the text messages to the victim as alleged by the victim in her witness statements. They included approximately 67 text messages sent by the applicant to the victim one day alone and a number of other messages over eight days.

70. The text messages detail the intimidation by the applicant as he sought to coerce the applicant into agreeing to his demands to rekindle their relationship and allowing him access to her. The text messages also provide an indication of the level of distress experienced by the victim about her money being taken from her.

71. In cross examination, the applicant admitted to informing the victim that he would only return her money if she complied with his conditions, namely, that she give him access to her Hotmail email account, that she give him access to her new internet banking password, that she go out to dinner with him that week, and that she give their relationship another try. The applicant also admitted to sending messages to the victim suggesting he could sue her mother for improperly accessing a patient file in her workplace, and informing the victim that if she went to the police about the money he could tell the police that she paid for the holiday herself when they were together and is now claiming that she wants the money back because the relationship has ended. Indeed, the Tribunal notes that during his interview with police, the applicant told the interviewing officers that the victim herself had transferred the money into his account and it had nothing to do with him. [3]

    3. Ibid, p 141

72. The Tribunal accepts that the applicant entered his guilty pleas on the basis of the Agreed Facts only. Relevantly, he does not agree with all of the victim’s account of the events in 2012. The Tribunal takes into account the withdrawal of a number of the applicant’s trigger offences, namely assault with act of indecency, take/detain person with intent to obtain, break & enter with intent to commit indictable offence, aggravated enter dwelling with intent knowing people there. The reasons for the offences’ withdrawal are not known to the Tribunal, and the Tribunal was unable to make positive findings that those matters occurred as alleged. However, the Tribunal was unable to conclude that the allegations in relation to the withdrawn matters are groundless.

73. In this regard, the Tribunal notes that the withdrawn matters form part of a course of conduct the victim alleges the applicant engaged in following the end of their domestic relationship. The applicant does not dispute the quantum or content of the text messages he sent to the victim as described in the victim’s statements. Significantly, those text messages appear to be corroborative of, and consistent with, the victim’s evidence of the events. The messages demonstrate the applicant’s demands to access the victim and his harassment of her in circumstances where the victim made it clear that she did not wish to resume their relationship.

74. This is to be contrasted with the inconsistencies in the applicant’s evidence. By his own admission, the applicant was not truthful during his record of interview with police during which he denied the majority of the allegations, including grabbing the victim’s arm, sending text messages to the victim and transferring money from the victim’s bank account. In addition, the applicant’s claim in his oral evidence that no sexual activity at all occurred during the events on sits at odds with his claim in the police record of interview that sexual activity (which he claimed was instigated by the victim) did in fact occur.

75. When considered as a whole, the allegations raise concern. Whilst the Tribunal is unable to make a positive finding that the withdrawn trigger offences occurred as alleged, the Tribunal concludes that the circumstances surrounding those matters means that the existence of a risk has not been disproven. The offences are very serious and the fact that they involved a child is an aggravating factor.

76. Moreover, the Tribunal finds that the trigger offending in relation to the stalking offence to which the applicant pleaded guilty on the basis of the Agreed Facts is, of itself, serious. The Tribunal notes that the Court’s decision to dismiss the charge pursuant to the mental health forensic provisions legislation does not constitute a finding that the charges against the applicant were proven or otherwise. However, the Tribunal notes that the Agreed Facts were accepted by the applicant at the relevant time and continued to be accepted in the main by the applicant. The Tribunal finds that the offending on its own was serious, involving the stalking and intimidation of a child. The applicant’s conduct was manipulative and controlling, causing fear and likely psychological trauma to the victim.

(b) The period of time since the matter occurred and the conduct of the applicant since that time

77. It is approximately 4.5 years since the matters occurred.

78. Since the offences, the applicant has been charged with breaching the apprehended violence order, the final order of which was made by the Court in 2013.

79. The police facts indicate in 2014, the applicant was observed to be standing on the nature strip in front of the victim’s home, approximately five metres from the victim. The following day, the applicant was observed walking on the front nature strip outside the victim’s home. The applicant was later observed walking down the victim’s street within 100 metres of the victim’s home, and subsequently within about 20 metres of the victim’s front door. On those occasions, the applicant did not actually approach the victim or speak with her and subsequently left the vicinity of the applicant’s home.

80. The applicant was arrested by police and charged with three breaches of the apprehended violence order. The applicant declined to participate in a police record of interview, as was his legal right.

81. In 2015, the applicant was convicted of the three breach offences in the Local Court. During the sentencing proceedings, the applicant wrote a letter to the Court apologising to the Court and to the victim for breaching the apprehended violence order. The applicant was ordered to enter into a bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months. The applicant lodged an appeal to the District Court against the severity of his sentence. Without proceeding to conviction, the District Court made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 discharging the applicant on condition that he enter into a good behaviour bond for a period of 2 years.

82. The apprehended violence order was extended for a period of 3 years and was varied to prevent the applicant from going within 20 metres of the victim’s home and workplace, and from approaching her school or educational institution.

83. In his oral and written evidence, the applicant said that he did not realise the apprehended violence order was still in place and it was a “pure mistake and stupid”. The applicant stated that he was doing cardiovascular exercise in the form of walking and jogging at the time and it didn’t occur to him that he could not use the route for his exercise.

(c) The age of the applicant at the time the matter occurred

84. At the time of the trigger offending the applicant was 20 years old.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

85. At the time of the trigger offending, the victim was 17 years old. The applicant submits that the victim was close to being 18 years of age and he did not view her as a child, but rather as an equal in their relationship.

86. Whilst the victim was not a young child, she was still attending school and was not yet an adult. It is evident that the victim did not wish to reconcile her domestic relationship with the applicant and was fearful of, and intimidated by, the applicant during the events in 2012. It is also clear that the $500 the applicant took from the victim represented a significant amount of the victim’s income and she was very distressed about it. The Tribunal finds that the applicant exploited this fact and used it to exercise control over, and exert intimidation on, the victim.

87. The Tribunal finds that the victim was vulnerable in that the offending occurred while she was alone and without immediate assistance at hand. The Tribunal rejects the applicant’s claim in the police interview that his attendance at the victim’s workplace was a mere coincidence, and it does not in any event explain his subsequent actions in waiting for the victim to exit her workplace to approach her again. The Tribunal also finds that the applicant was aware that the victim was at home alone on the date of the second incident.

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

88. There was a three-year age difference between the applicant and the victim. The applicant and the victim had been in a domestic relationship with each other which had ended a short time prior to the applicant’s offending

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

89. The applicant was aware the victim was 17 years old.

(g) The applicant’s present age

90. At the time of the Tribunal hearing, the applicant was 25 years of age.

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

91. The applicant’s trigger offences are outlined above. The breaches of the apprehended violence order are also outlined above. The applicant has not been convicted of any other criminal offences. There is no evidence of any other complaints against the applicant in relation to his conduct towards children.

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

92. The applicant relied on the oral and written evidence of Mr Borenstein, Clinical Psychologist. Mr Borenstein was originally engaged by the applicant for the purposes of providing an assessment and treatment plan in the applicant’s criminal proceedings. Following the section 32 order made by the Court, the applicant commenced receiving treatment by another psychologist who was unable to provide ongoing treatment. The applicant then approached Mr Borenstein and in October 2013, commenced receiving treatment from Mr Borenstein for the purposes of complying with the order of the Court. The treatment continued until 28 November 2013. Mr Borenstein stated that there was a rapid resolution of the applicant’s Adjustment Disorder with Mixed Anxiety and Depressed Mood without the need for medication.

93. In October 2016, Mr Borenstein was approached by the applicant and requested to provide a report for the purposes of the Tribunal proceedings.

94. Mr Borenstein utilised tools to assess the applicant, including the Personality Assessment Screener (PAS), the Depression Anxiety and Stress Scale (DASS 21), and the Paulhus Deception Scale (PDS), the results of which indicated the applicant is not suffering from mental health issues and that his presentation was genuine. Mr Borenstein also assessed the applicant’s risk of reoffending using the Static-99R, and stated the applicant’s risk factor is assessed in the low range of low to moderate risk.

95. Mr Borenstein reported:

In my opinion, (the applicant) does not present any danger to a child. Most recent assessment confirms he has made considerable progress since assessed in 2013. (The applicant) has developed improved emotional resiliency. There is an absence of any mental health issues of the sort that contributed to the offences for which he was charged in 2013.

96. Under cross examination by Counsel for the respondent, Mr Borenstein conceded that in conducting his assessment he had been provided with only a copy of the Agreed Facts, the applicants criminal record, the letter from the respondent advising of the refusal of the clearance and its reasons for decision, and the respondent’s Submissions. Relevantly, Mr Borenstein had not seen all of the material produced by the respondent. In particular, he had not been provided with the witness statements of the victim or the transcript of the record of interview with police. In evidence, Mr Borenstein said he believed the applicant’s version of events in relation the criminal matters.

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

97. The applicant provided a letter to the Tribunal, a copy of bank statements for the period 1 November 2011 to 1 August 2012, an email from the victim to the applicant, a reference from a person who worked with the applicant in football related activities (Mr R), a character reference from a family friend, and the oral and written evidence of his current girlfriend with whom the applicant has been in a relationship since October 2015.

98. In addition, the applicant entered into correspondence with an officer of the respondent during the course of the risk assessment process. During a conversation, the applicant referred to the offences with which he was charged as involving his “crazy ex-girlfriend” [4] .

    4. Exhibit R1, p 236

99. In his written evidence, the applicant said around the time of the offences his parents had gone through marital separation and he was struggling to deal with the stress and anxiety associated with that event. In relation to the offences to which he pleaded guilty, he said he learned that what he believed was harmless persistence in trying to speak with the victim at her home, was in fact over the top. He stated that he was immature and was not cognitively and mentally sound at the time and his decision making skills were very poor. He stated that he is remorseful for this behaviour and wishes he could have rationalised his thoughts more effectively. The applicant stated that he pleaded guilty to the charges as a means of taking responsibility for his actions and to attempt to reduce the distress on the victim. He stated that he never intentionally tried to harm or cause distress to the victim [5] .

    5. Exhibit A2, Letter by the applicant (undated)

100. The applicant stated that he has worked in football coaching roles with children for approximately 6-7 years without incident and has also been in regular contact with children during this time. The Tribunal notes the respondent sent a notice to the relevant football club whose response indicated no record of the applicant’s employment. Therefore, there was not an opportunity to verify whether the applicant had been subject to any relevant complaints or disciplinary action in relation to his employment or volunteer work.

101. Notwithstanding there were somewhat limited details of his employment, the Tribunal accepts that the applicant has worked in roles coaching children as indicated by a reference by Mr R (whose reference is unsigned and undated and whose actual role in relation to the applicant is not identified in his reference), a payslip, salary details on his bank account, the evidence of the applicant’s current girlfriend, and the applicant’s own evidence.

102. The applicant also said he has regular contact with children, including his young sister and the children of family friends, as indicated in one of the applicant’s character references. The applicant told the Tribunal that he had stayed in the home of a family with young children for a period of time, and although there was no corroborative evidence to this effect, the Tribunal accepts the applicant’s evidence that this occurred.

103. However, it does not appear that the persons who provided character references had been made aware of all relevant details of the trigger offending at the time of writing their references. The Tribunal further finds that the oral and written evidence of Miss V is of somewhat limited weight given that she has only known the applicant for a relatively short period of time and is the applicant’s current partner.

104. The Tribunal notes that in 2015, following an assessment, the applicant was granted a clearance for clinical placements in NSW health facilities by NSW Health.

105. The applicant pointed to his achievements in his studies, including his selection for the Dean’s Honour List. The applicant indicated he requires a working with children check clearance in order to undertake a paediatric placement as part of his Masters in Physiotherapy. He said that if he is unable to undertake the placement he will not be able to complete his degree. However, the applicant provided no supporting evidence to this effect or of any other options available to him for the completion of his studies.

106. The applicant submits that he does not pose any risk to children and should be granted a working with children check clearance.

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

107. The respondent opposes the application. Counsel for the respondent submitted that little weight should be given to the evidence of Mr Borenstein whose opinion Counsel suggested was neither independent nor impartial as a result of the therapeutic relationship that arose out of Mr Borenstein’s professional involvement during the applicant’s criminal proceedings. Counsel also submitted that Mr Borenstein’s opinion is affected by the limited material he considered for the purposes of his assessment. Counsel for the respondent submits that the applicant has sought to minimise his offending and continues to deflect blame onto the victim. Counsel further submits that the applicant’s breach of the apprehended violence order represented a clear disregard for the welfare of the victim. Counsel for the respondent submits that given the relatively recent breach offending, the Tribunal could not be satisfied that the applicant no longer poses a risk to the safety of children.

CONCLUSION

108. In this matter, the role of the Tribunal is to review the decision of the Children’s Guardian to refuse the applicant a working with children check clearance, and to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law.

109. There is no presumption that the applicant poses a risk to the safety of children by reason of his offending, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.

110. The Tribunal’s remarks in relation to the withdrawn trigger offences are referred to in previous paragraphs of these Reasons, and whilst the Tribunal is unable to make positive findings that they occurred as alleged by records produced by the respondent, the Tribunal is satisfied that the allegations are not groundless and the circumstances surrounding the applicant’s course of conduct means that the risk to the safety of children has not been disproven.

111. The Tribunal takes into account the fact that the applicant was not in fact convicted of the offences to which he pleaded guilty, with the Court finding that it was more appropriate to deal with the offences pursuant to the Mental Health (Forensic Provisions) Act 1990 on the basis of the applicant’s mental health at the relevant time, than otherwise in accordance with the law.

112. The Tribunal also accepts that at the time of his offending in 2012 the applicant was affected by his parents’ separation, especially in light of the acrimonious nature of its circumstances and the applicant’s young age. The Tribunal also acknowledges that the applicant underwent counselling as per the treatment plan of Mr Borenstein, and thus complied with the order of the Court made in 2013. In addition, other than the victim of the applicant’s trigger offences, there is no evidence of any other complaints made by a child about the applicant.

113. The Tribunal further recognises that the applicant has achieved significant success in his sporting endeavours and tertiary studies, and has a genuine desire to work in his chosen profession as a physiotherapist.

114. However, the Tribunal finds that the applicant’s trigger offending was serious; involving the stalking and intimidation of a child within the setting of a domestic relationship. Furthermore, it cannot be said that the applicant’s trigger offending in 2012 was an isolated incident. Rather, it involved repeated and persistent behaviours involving manipulation of, and threats to, the victim.

115. Furthermore, approximately 15 months after he was discharged by the Court and approximately 13 months after completing his treatment with Mr Borenstein (and at a time when Mr Borenstein was satisfied the applicant’s mental health issues had resolved), the applicant breached the apprehended violence order which was put in place to protect the victim from the applicant.

116. It is recognised that the applicant’s breaches were on the lower scale of seriousness, involving no physical or verbal contact with the victim and in respect of which the District Court decided to set aside the convictions imposed by the Local Court. The Tribunal notes that in setting aside the convictions it was open to the Court to dismiss the charges unconditionally. However, the District Court elected to make the applicant subject to a good behaviour bond for a period of 2 years.

117. In addition, following the applicant’s breaches, the Local Court was satisfied that the apprehended violence order should be extended for a further three years. The effect of those orders is that the applicant remains subject to a good behaviour bond until September 2017 and is subject to an apprehended violence order until June 2018.

118. The Tribunal finds that if the applicant were to reoffend, the harm to any child victim may well be significant. The Tribunal acknowledges that the applicant has been assessed by his treating psychologist as being in the low range of low to moderate risk of reoffending. Mr Borenstein is also of the opinion that the applicant does not present any danger to a child. The Tribunal takes into account Mr Borenstein’s evidence but viewed with considerable caution his opinion and his assessment of the applicant’s level of risk. Relevantly, it is evident that Mr Borenstein formed a therapeutic relationship with the applicant as a result of his development and delivery of a treatment plan ordered by the Court in relation to the applicant’s criminal matters. Such a relationship necessarily impacts on Mr Borenstein’s ability to provide a truly independent and objective assessment of applicant’s risk. Furthermore, Mr Borenstein did not have before him the material that, in the view of the Tribunal, is critical to any full and proper assessment of the applicant’s risk. Importantly, Mr Borenstein did not have any of the material relevant to four of the offences which triggered the respondent’s risk assessment. In relation to the trigger offence to which the applicant pleaded guilty, Mr Borenstein had access only to the Agreed Facts and other limited material. Significantly, he did not have access to the statements of the victim and police which include all of the allegations against the applicant, including further details in relation to the trigger offence to which the applicant pleaded guilty. Indeed, it is apparent that much of the collateral information on which Mr Borenstein based his report came from the applicant himself, and a large part of the report appeared to focus on the resolution of the applicant’s mental health symptoms rather than on an objective and thorough assessment of the applicant’s risk of re-offence and the risk, if any, he poses to the safety of children. Accordingly, the Tribunal gave only limited weight to the psychological evidence before it.

119. In addition, the Tribunal was troubled by the applicant’s minimisation of his actions. The applicant asserts that his offending was merely persistent pleas with the victim to reconcile their relationship, which went “over the top”. In the Tribunal’s view, this characterisation of his conduct, which was consistent with the applicant’s oral evidence before the Tribunal, minimises the applicant’s behaviours and demonstrates a lack of insight into the seriousness of his actions and the fear and intimidation experienced by the victim. His tendency to minimise and apportion blame to the victim is further highlighted by his description of the victim as his “crazy ex-girlfriend”. That the applicant breached the apprehended violence order, and his lack of awareness that it was still in force at the time of his breaches, indicates a disregard for, or indifference to, the welfare of the victim and the legal measures put in place to protect the victim as a result of his offending behaviour.

120. Moreover, the Tribunal finds that the applicant’s trigger offending is relatively recent. The applicant continues to remain subject to a good behaviour bond and an apprehended violence order. Taking into account these facts and the nature and severity of the offending, the Tribunal could not be satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work. Furthermore, the Tribunal is not satisfied that it is in the public interest to make an order enabling the applicant to be granted a working with children check clearance.

121. The Tribunal accepts that if the applicant is granted a clearance he may work with any children of any age. The Tribunal is cognisant of the fact that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, on the balance of probabilities the Tribunal finds that at the present time the applicant poses a risk to the safety of children and should not be granted a working with children check clearance.

122. However, it is important to note that the Tribunal’s dismissal of the application on this occasion does not necessarily mean that the applicant will fail to obtain a clearance in the event he makes a further application at some time in the future. Whilst a person is prevented from making a further application for a period of five years after the refusal notice was given, a change of circumstances can invoke the discretion of the Children’s Guardian to permit a further application earlier than five years (see section 13A of the Act).

123. In this regard, the Tribunal finds the applicant is motivated to pursue a career as a health professional and has demonstrated commitment and dedication to this goal. A passage of time (including when he is no longer subject to court orders) and a further opportunity to demonstrate compliance with his good behaviour bond will be in the applicant’s interests. The applicant may wish to consider an early application for a working with children check clearance in the future. However, it will be a matter for the Children’s Guardian to determine, on the information provided by the applicant at that time, as to whether that application be permitted.

ORDERS

1. The decision of the Children’s Guardian dated 10 October 2016 to refuse to grant the applicant a working with children check clearance is affirmed.

2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited.

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.

Endnotes

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: 14 March 2017