Cza v Children's Guardian

[2017] NSWCATAD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CZA v Children’s Guardian [2017] NSWCATAD 248
Hearing dates:	31 July 2017
Date of orders:	14 August 2017
Decision date:	14 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member Dr B Field, General Member
Decision:	(1) Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the two offences of Indecent Assault for which he received a two year recognisance or bond. (2) Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children’s Guardian is to grant the Applicant a Working with Children clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – onus of proof - whether applicant is a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	BHA v Children’s Guardian [2014] NWCATAD 161  BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v V (2002) NSWSC 949 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Smith v Commissioner Police 2014 NSWCATAD 184. Director of Public Prosecution v Smith (1991) VR 6
Category:	Principal judgment
Parties:	CZA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: N Dawson (Applicant) J McDonald (Respondent)   Solicitors: New Law (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00065753
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant or any other witnesses are not to be published or broadcasted without the leave of the tribunal.

REASONS FOR DECISION

Introduction

1. The applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and has made an application for an order under s.28(1) of the Act declaring that he not be treated as a ‘disqualified person’. The order is known as an ‘enabling order’ and means, if made, the applicant can be granted a working with children check clearance and enable him to do child related work as defined under s.6 of the Act.

2. The applicant, referred to as 'CZA’ in these reasons, is 58 year old man and has worked as a teacher for over thirty years. In February 2017, during a routine check the Children’s Guardian discovered the CZA had pleaded guilty to indecent assault charges in 1977. These are disqualifying offences falling within Schedule 2 of the Act. At the time of the offences CZA was 18 years old and the victim was 16 years old. He pleaded guilty and was sentenced to a Good Behaviour Bond for 2 years. CZA has no other criminal history. However, there were two complaints made against him by students regarding inappropriate touching. They occurred in 1998 and 2004 whilst he worked as a teacher. The applicant denied the allegations and no action was taken against him. The Tribunal considered all the evidence, including the psychological evidence of the expert, Dr Seidler and decided CZA has discharged his onus, as required under s.28(7) of the Act, and displaced the presumption that he poses a risk to the safety of children. The reasons and orders are set out below.

Evidence

Facts of disqualifying offences

3. In June 1977, CZA went to the victim’s home. He knew her from the school he attended and she was in the year below him. He was 18 years old and the victim was 16 year old and about 17 months younger than him. The police report described the offences:

Between the times mentioned the offender went to the home of the victim, whilst her and her younger sister were home alone. It is alleged that he assaulted the girl in the lounge room of the home by touching her on the breasts and between her legs with his hands. He then forced the girl into the bedroom and onto the bed where he removed her slacks and undergarments. He then placed his finger into her vagina before undoing his fly, laying on top of her and touching the outside of her vagina with his penis. The girl was not injured as a result of the assault.

4. CZA pleaded guilty to two charges of indecent assault. He received a 2 year good behaviour bond for two years under the relevant legislation, without recording a conviction.

CZA

5. CZA filed an Affidavit in these proceedings but did not provide details of the offence. However, he provided a more complete account to Dr Seidler who interviewed him as part of her assessment and said the following:

[CZA]…claimed to have had a close family relationship with the victim and the family that lived in the house and he apparently visited with these people on a regular basis... he had been visiting with the victim and… the pair had started to engage in some play fighting that resulted in them becoming quite close physically. [CZA] stated that he perceived that the girl was interested in him and he thought that as they has some good friends that perhaps there was potential for them to become involved in a relationship. To this end, [CZA] commented that he ‘thought she liked me’ and following on from the play fighting, the pair moved into a bedroom and [CZA] initiated sexual contact with the victim. [CZA] conceptualised his behaviour as being motivated by the desire to start a relationship with the girl based on the belief that she was interested in him. Consequently, he described being ‘shocked’ when he found out that the victim had made a formal complaint about his behaviour to police and he acknowledges that he had misread the situation and her intentions.

6. CZA was cross examined about the offences. He explained he was in an ‘on off’ relationship with the victim’s friend and they were all part of the same social group. He recalls he was play fighting with the victim in the lounge room and they were flicking each other with towels before they moved into the bedroom. He agreed he did all the things set out in the charges but he thought his actions were consensual. He mistakenly believed the victim had expressed herself to him ‘romantically’ and that she liked him. He was shocked when he learnt the victim made a report to police 24 hours later. ‘I had no idea. I remember going to visit the victim at her home the next day’. He remembered going to Court and using a legal aid lawyer who gave him advice to accept a plea of guilty to the charges. He had a lot on at the time including starting teacher’s college and he also wanted it all over as quickly as possible so he accepted the advice.

Details of 1998 and 2004 complaints

7. In 1998, a deaf female student made a complaint against CZA on behalf of herself and two female students, also deaf. They alleged that when CZA was teaching them in class, he would pretend to bump into them and, in the case of one of the students, he would sometimes brush his hand against her buttock. The students also stated they felt uncomfortable about this and wanted it to stop. The Principal of the school determined the complaint was unsubstantiated but counselled CZA and gave him advice about working with hearing impaired students. The Department of Community Services were notified but took no action.

8. CZA stated in his affidavit that he recalled the Principal had a conversation with him about the matter in 1998. He told CZA to be more careful when walking around the classroom. CZA stated in his Affidavit, ‘In this instance I had squeezed between a piece of equipment and a student in class and had unwittingly, come into contact with the student, who I understand reported that she felt uncomfortable about the contact. The matter was dealt with at the school level’.

9. In cross examination CZA denied any intent or improper motive to touch any of the students and make them feel uncomfortable.

10. In 2004 a further complaint was made against CZA by a student. The allegation is contained in a Department of Education document and refers to a complaint by a female student that while she had been alone with CZA in the storeroom or staffroom helping CZA put away some folders, he hit her on the bottom with a folder. She is quoted as saying:

‘… I was scared because I don’t like being alone with older men... we were putting the folders away when [CZA] hit my bottom with one of the folders... I turned around and he was giggling…’

11. The school decided the matter was trivial and the risk of harm very low and no further action was taken. The school also decided not to inform CZA of the complaint. The first time he heard of the complaint was through his solicitor in these proceedings.

12. CZA gave evidence that he was shocked by the further complaint and has no recollection of the incident. He also denied the allegations and stated again he would never intentionally touch a child in an inappropriate or improper way.

Applicable Law

13. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application.

14. The object of the Act is to protect children:

1. by not permitting certain persons to engage in child-related work, and

2. by requiring persons engaged in child related work to have working with children check clearances: see section 3 of the Act.

15. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: see section 4 of the Act.

16. Section 18(1) of the Act provides that the Children’s Guardian must refuse an application for clearance where the applicant is a disqualified person by reason of being convicted of an offence falling within Schedule 2 of the Act.

17. Section 28(1) of the Act makes provision for a disqualified person to make an application to the Tribunal for an enabling order. Section 28(7) provides that in any proceedings where an enabling order is sought, it is presumed unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children.

18. Section 28(8) provides that an enabling order may not be made subject to conditions.

19. The Tribunal must consider whether the applicant poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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”.

20. The jurisdiction of the Tribunal in considering whether to grant an enabling order is protective and not punitive in nature BHA v Children’s Guardian [2014] NWCATAD 161 and Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]).

21. The Applicant bears the burden of proof in these proceedings, in which he must establish on the balance of probabilities, that he does not pose a risk to the safety of children.

22. In determining this application, the Tribunal must first have regard to the factors set out in section 30 (1) of the Act. If the Tribunal is considering making an enabling order, it then needs to consider the application of the two-part test set out in section 30 (1A) of the Act.

Consideration of s.30(1) factors

a) Seriousness of the offence with respect to which the Applicant is a disqualified person

23. The offences of indecent assault are serious. The victim was 16 years old at the time and the facts refer to CZA ‘forcing himself’ into the bedroom. The facts might suggest the offences were not the most serious of this type of charge as reflected in the penalty of a good behaviour bond. He also pleaded guilty to the offences as soon as possible. Under cross-examination in these proceedings, CZA acknowledged his actions in 1977 were not consensual. He also expressed remorse for his actions and concern for the victim and the impact the offences may have had on her.

b) Period of time since those matters occurred and the conduct of the person since they occurred.

24. The disqualifying offence occurred in 1977. CZA has no other criminal history.

25. As stated above, whilst working as a teacher CZA was the subject of two separate complaints in 1998 and 2004. The 1998 allegation of ‘inappropriate touching’ was not substantiated and the school took no further action. The department of community services were also notified but took no action. The 2004 allegation was that CZA hit a female student on the bottom with a folder. The school Principal considered the ‘risk of harm to be very low’ and the matter trivial. The Principal did not inform CZA of the complaint and no action was taken.

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

26. CZA was 18 years of age at the time of the 1977 offences. He was 39 years old at the time of the 1998 allegations and 45 years old at the time of the 2004 allegations.

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

27. The victim was 16 years old at the time of the offence. The victim was vulnerable being alone in the house with her younger sister. The victims who made the 1998 allegations were high school students. They were also students with hearing impairment. The victim who made the 2004 allegation was a high school student. There is no information on the exact age of the students who made the 1998 and 2004 complaints.

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

28. The difference in age between CZA and the victim of the disqualifying offence is 1 year and 7 months. CZA gave evidence that he knew the victim from school and they were in the same social group. He also knew the victim’s family.

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

29. CZA is likely to have known the victim was a child as she was in the year below him at school.

g) The person’s present age

30. CZA is 58 years old.

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

31. CZA has no other criminal history. As stated above, there have been two complaints against CZA by students of inappropriate touching whilst working as a teacher. He denied those complaints and the school and the department took no action.

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

32. CZA filed an expert report of psychologist, Dr Katie Seidler. She assessed CZA as posing a low risk of re-offence. She stated,

‘In fact, within the context of his being free for four decades, it would seem that [CZA]’s risk is no greater than any member of the general population now. He does not present any current or recent risks relating to sexual abuse and it is difficult to conceptualise how any risk may now manifest given his lifestyle, stability, prosociality, positive coping and reciprocal, satisfying relationships.

On the basis of the present assessment, in my opinion, [CZA] does not require any intervention or strategies for management in order to ameliorate or control his risk to the community. Rather, he functions well and contributes actively to the community, as well as being committed to his family and his work. From a risk perspective, there seem no justification for preventing [CZA] from fulfilling his duties as a teacher and serving out the remainder of his professional life in this field’.

33. At the time of her written assessment, Dr Seidler had only minimal knowledge of the 1998 complaint based on what CZA could recall and had no knowledge of the 2004 complaint as CZA himself, was unaware of the complaint. Prior to her evidence, CZA’s solicitor briefed Dr Seidler about these further matters. She was then asked in evidence whether her opinion had changed based on the 1998 and 2004 complaints. She stated that her opinion had not changed. That is, the incidents were isolated being six years apart over a 30 year period of being a teacher. If CZA was a risk of sexual offending, Dr Seidler would expect to see other reports or complaints such as grooming behaviour, fostering of personal relationships with students and other escalating behaviours. This was not the case. Furthermore, Dr Seidler made it clear in her evidence that for the purposes of making her risk assessment, she assumed these further allegations against CZA were true. This is a significant matter as it excludes the possibility that CZA did not do the acts alleged.

34. Dr Seidler repeated her view in evidence that CZA’s risk is no greater than any other member of the general population now.

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

35. As a teacher, CZA is fully aware of his child protections obligations and has participated each year in the mandatory child protection training.

36. CZA has been a teacher for over 30 years. He is a committed and passionate teacher devoted to giving the best education to all his students. He has found the current proceedings very upsetting, as the idea of harming another student or child is repugnant to him.

37. CZA stated in the final paragraph of his Affidavit his view on the criminal offences he committed in 1977:

‘Since I have been suspended from work, I have had time to reflect on the events which led to the Disqualifying Offences. As a young and immature man, I made a very inappropriate and unwise decision which was not only a criminal offence, but involved actions which must have affected the victim at the time and may well have continued to affect her throughout her life. For this, I am ashamed. I feel apologetic, remorseful and have deep regret for my actions. I also feel that I have failed as both a parent and a teacher.’

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

38. The respondent does not support or oppose the application.

Consideration

39. The Tribunal finds that CZA does not pose a risk to the safety of children and has discharged his onus and displaced the presumption that he poses a risk to the safety of children.

40. The reasons for this finding are as follows:

1. CZA pleaded guilty to two offences of indecent assault in 1977 when he was 18 years old and the victim was 16 years old. The Tribunal accepts he made a gross error of judgement, that he accepts full responsibility for the offences, for which he has been duly punished and that he is remorseful.

2. Dr Seidler assessed CZA and in her expert opinion he is no greater risk of re-offending than a member of the general population now. She also stated that from a risk perspective, there seems no justification for preventing him from continuing to work as a teacher.

3. The Tribunal gives little weight to the incidents in 1998 and 2004. They were untested allegations which CZA denies. They were investigated and dismissed by the School Principal at the time and in relation to the 1998 incident, the Department of Community Services were notified but no further action was taken. Further, Dr Seidler considered both incidents and her opinion, that CZA does not present any recent or current risks relating to sexual abuse, did not change. It is also significant that for the purposes of her risk assessment, Dr Seidler assumed these allegations against CZA were true, and still reached the same conclusion about risk.

4. CZA has worked for 30 years as a teacher. Department of Education documents filed in these proceedings describe CZA as “an excellent, long serving teacher at the school with no previous incidents” and as being “highly regarded.” As a teacher he has regularly participated in child protection training and in evidence demonstrated a good understanding of the vulnerability of children and the need for protective strategies.

1. CZA has been married for 20 years and is a committed and loving father of his children. He is also extensively involved in community and social activities.

Application of s.30(1A) of the Act

41. For reasons outlined above and in particular, his 30 years working as a teacher, the Tribunal is also satisfied that:

1. A reasonable person would allow his or her child to have direct contact with CZA that was not directly supervised by another person while CZA was engaged in any child related work, and

2. It is in the public interest to make the orders.

Orders

42. The Tribunal makes the following Orders:

1. Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the two offences of Indecent Assault for which he received a two year recognisance or bond.

2. Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children’s Guardian is to grant the Applicant a Working with Children clearance.

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

Registrar

Decision last updated: 14 August 2017