DCD v Children's Guardian

[2017] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DCD v Children’s Guardian [2017] NSWCATAD 234
Hearing dates:	17 July 2017
Date of orders:	27 July 2017
Decision date:	27 July 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member E Hayes, General Member
Decision:	1. The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence Carnal Knowledge (3 counts), Crimes Act 1900, s71.  2. The Children’s Guardian is to grant the applicant a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] ZZ v Secretary, Department of Justice and Another [2013]
Category:	Principal judgment
Parties:	DCD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr Karp (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00153461
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 (“DCD”) applied for a Working with Children Check (WWCC) clearance citing work as a bus driver including school routes and excursions. The Children’s Guardian (the Respondent) refused to grant a WWCC clearance because DCD is a “disqualified person” under the Child Protection (Working with Children) Act (2012) (the Act). This is because DCD was found guilty and convicted of three charges of carnal knowledge with a 14 year old girl (“G”) in 1985, which is a disqualifying offence, specified under the Act. The Applicant asks the Tribunal to grant him an enabling order and to order the Respondent to grant a WWCC clearance.

2. It is not disputed that DCD had consensual sexual relations with G. DCD was 18 years old at the time and G’s boyfriend. These are DCD’s only convictions. DCD has provided a detailed affidavit and other documentary material in support of his application. These attest to DCD’s good character. There is nothing contained in the material provided that the Respondent points to as cause for concern in relation to whether DCD poses a risk to the safety of children. As the Applicant is deemed to be a disqualified person under the Act, he is presumed, unless he proves to the contrary, to pose a risk to the safety of children. The Tribunal has determined on the basis of the evidence presented to it that the Applicant has proved that he does not pose a risk to the safety of children: the Act, s 28 (7).

The material before the Tribunal

3. The Tribunal was provided with the following material:

1. Application received from the Applicant on 22 May 2017.

2. Section 58 documents filed by the Respondent received on 6 July 2017.

3. Affidavit of DCD dated 22 June 2017.

4. Statutory Declaration made by DCD’s wife dated 5 July 2017.

5. Statutory Declaration made by DCD’s daughter dated 3 July 2017.

6. Statutory Declaration made by DCD’s step-daughter dated 4 July 2017.

7. Reference provided by ADB dated 9 May 2017.

8. Reference provided by Y and M J dated 10 May 2017.

9. Reference provided by MH dated 11 May 2017.

10. Respondent’s outline of submissions dated 14 July 2017.

4. A hearing was held in Sydney. DCD was present and supported by his wife. He was not legally represented. DCD gave oral evidence at the hearing.

5. Sections 30 (1) and (1A) of the Act provide the factors that the Tribunal must consider in determining this application. These are set out below.

The seriousness of the disqualifying offence; and the period of time since this offence and the conduct of the person since it occurred; s30 (1) (a) and (b)

6. The disqualifying offence is an offence of carnal knowledge, which by its nature is a serious offence.

7. At the time of the disqualifying offence DCD was 18 years old and living with G’s family. He had sex with G on 3 occasions within a period of about 3 weeks. They had been seeing each other for about a month and this was their first sexual experience. DCD confirmed that he admitted to the Police he had been having sex with her and that he knew she was 14 years old. There is no dispute that DCD co-operated with the Police, made admissions and pleaded guilty. The circumstances of the arrest are not entirely clear and may have been incidental to another investigation taking place in relation to G. DCD is reported to have been contrite and ashamed of his actions. He was sentenced to 150 hours community service and 12 months of probation, which he completed satisfactorily.

8. The only other matter of note is an Apprehended Violence Order (“AVO”) taken out against him by his former wife in 2009 on the basis of alleged threats and intimidation. This included an allegation that DCD made threats to their daughter (“L”), who was 17 years old at the time, and told her to pass them on to her mother. DCD explains in his affidavit that he and his former wife had an argument, which he has little recollection about other than it involved him parking in her driveway. DCD said he consented to the AVO without admissions, which was made for 12 months and it expired without incident. There is no evidence to suggest there was a contested hearing and the Respondent did not press this issue as a factor that is cause for concern in relation to whether DCD poses a risk to the safety of children. L makes no mention of this incident in the statutory declaration she provides in support of DCD’s application. There is no evidence to support whether these allegations took place and the Tribunal is not satisfied that any findings can be made in relation to them. The Tribunal did not consider these allegations or the AVO against DCD as a factor that weighs against DCD’s application.

The age of the person at the time of the disqualifying offences; the age of the victim; the difference in age and the relationship between the victim and the person; s 30 (1) (c), (d) and (e)

9. DCD was 18 years old at the time. G was 14 years old and the age difference was about 4 years. They were boyfriend and girlfriend and at the time, DCD was living with G’s family in their home.

Whether the person knew that the victim was a child and the person’s present age; s 30 (1) (f) and (g)

10. DCD admitted to the Police at the time that he knew G was 14 years old. Although in his affidavit he said he did not know how old she was at the time, and in places refers to her being 15 years old, and that she had the appearance of a woman, he told the Tribunal that he made his affidavit before reviewing the material obtained by the Respondent. He agreed that he must have known her age at the time, being 14 years old, but he had tried to put the whole thing out of his mind. There was no suggestion that he was trying to minimise what had occurred, or the responsibility he accepted for his actions, or that he had been trying to mislead the Tribunal.

11. DCD is now 50 years old.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred; s 30 (1) (h)

12. The disqualifying offences are the only matters contained in DCD’s criminal record.

The likelihood of repetition of the offences or conduct and the impact on children of any such repetition; s 30 (1) (i)

13. The Pre-Sentence Report prepared in 1985 includes “(DCD) presents as a quiet, pleasant youth, very confused by his experiences. He appears to be a lonely person who has suffered emotional deprivation and who now seeks affection and acceptance from wherever he can. His appearance in Court on these charges would appear to be a result of this need rather than an indication of criminal intent”.

14. The parties agree there is no evidence that suggests DCD has presented any danger to children since the disqualifying offences. The Tribunal is satisfied that the disqualifying offence comprises of particular circumstances that applied at that time. The Tribunal accepts DCD’s evidence that it was a “one off thing when I was young myself and I was in a relationship with someone whom I considered was a peer and close to me in age. I was not attracted to (G) because of her age. I was attracted to her because we were both young people who enjoyed each other’s company”.

Any information given in, or in relation to, the Application; s 30 (1) (j)

15. DCD’s account of the disqualifying offences is consistent with the material obtained by the Respondent.

16. The supporting material provided to the Tribunal describes DCD as a respectful, trusted, and loving father and husband. The references provided by friends and colleagues who have known him from periods of between 10 years and up to 35 years, similarly describe him as an honest and caring man, and have not observed him to be “negative to others”. The Tribunal accepts the evidence provided in support of DCD’s application.

17. DCD told the Tribunal he was not proud of what had occurred between himself and G, and that having to disclose this part of his history to friends and family has been difficult. He has not been working pending the review of the Respondent’s decision, but has employment lined up as a bus driver should a WWCC clearance be granted. He said he was keen to get his life back on track. The Tribunal accepts this is the case.

Any other matters that the Children’s Guardian considers necessary s 30 (1) (k)

18. The Tribunal is satisfied that DCD has proved that he does not pose a risk to the safety of children. The Tribunal must also be satisfied “that 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 it is in the “public interest to make the order”; the Act, s 30 (1A).

19. The supporting material provided by DCD includes evidence of people who have known DCD over many years and that they trust him with their children and have no reservations about him having contact with them without supervision. There is no evidence of any conduct that would cause the Tribunal to consider that a reasonable person would not allow his or her child to be directly supervised by DCD. The Tribunal is satisfied that this condition is met.

20. There is no dispute that DCD has applied for a WWCC clearance in order to take up work as a bus driver. It has been held that the right to work can be taken into account when considering the public interest in similar legislation: ZZ v Secretary, Department of Justice and Another [2013] VSC 267. The Tribunal is satisfied that this condition is also met.

Conclusion

21. DCD was convicted of a disqualifying offence more than 32 years ago, which involved consensual sexual relations with his girlfriend at the time, who was 14 years old. DCD has expressed remorse and responsibility for this and there is no suggestion that he has done anything since then that would raise any concern about him having contact with children in a work related context or generally.

22. The Respondent does not oppose DCD’s application for an enabling order. The Tribunal is satisfied that DCD has discharged his onus in proving to the required standard of on the balance of probabilities, he does not pose a risk to the safety of children.

23. The correct decision is to grant an enabling order and declare him not a disqualified person under Act and to order the Respondent to grant him a WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63.

Orders

1. The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence Carnal Knowledge (3 counts), Crimes Act 1900, Section 71.

2. The Children’s Guardian is to grant the applicant a Working with Children Check clearance.

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

Registrar

Decision last updated: 27 July 2017