DDJ v Children's Guardian

[2018] NSWCATAD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DDJ v Children's Guardian [2018] NSWCATAD 4
Hearing dates:	11 December 2017
Date of orders:	08 January 2018
Decision date:	08 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member P Foreman, General Member
Decision:	The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW). Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-frotteursistic behaviour- assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category:	Principal judgment
Parties:	DDJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) Applicant: In Person Unrepresented Solicitors: Crown Solicitor (Respondent)
File Number(s):	2017/200342
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

1. The Applicant, referred to as DDJ in these proceedings is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal.

3. The applicant is a ‘disqualified person’ by reason of his conviction on 6 June 2017 for two counts of Assault with Act of Indecency for which he received a 2 year good behaviour bond with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. The applicant seeks a WWCC clearance because he wants to return to his work as a Teacher’s Aide working with children with autism spectrum disorder, a disorder with which he was himself diagnosed in childhood.

5. The applicant is 32 years of age and represented himself in the proceedings. He told us that he had decided to do so because he was unhappy with the legal advice given to him prior to his criminal trial. His lawyer advised him to plead ‘not guilty’ but he felt this was ‘dishonest’ and decided to plead guilty. We asked the applicant whether he would like the opportunity to seek legal support for the hearing but he stated that he wished to continue to represent himself.

6. The Applicant applied for a WWCC clearance on 19 September 2016 and was granted a clearance on 28 September 2016.

7. On 4 April 2017 the Children’s Guardian became aware that criminal proceedings had been commenced against the applicant in relation to indecent assault and notified the applicant that his clearance had been cancelled pursuant to section 18(1)(b) of the Act which provides that:

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

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

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

8. Schedule 2.1(1)(e) of the Act specifies offences under section 61L of the Crimes Act 1900. This includes the offence of Assault with Act of Indecency.

9. On 3 July 2017 the Applicant applied for an enabling order from the Tribunal pursuant to section 28 of the Act in respect of the decision of the respondent made on 4 April 2017 to cancel the applicant’s working with Children Check Clearance on the basis that the applicant is presumed to pose a risk to the safety of children because of the criminal proceedings commenced against him.

10. The Respondent opposes the making of the enabling order sought by the applicant.

The Legislative Scheme

11. The Act makes provision for the regulation of those persons who can engage in or continue to engage in ‘child related work’. The objects of the Act are 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.

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

13. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

14. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

15. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

16. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant Working With Children Check clearance.

17. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid work in child-related work.

18. Applications for a working with children check clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused the applicant’s application, as she was required to do, under subsection 18(1) of the Act because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

19. Subsection 28(1) of the Act gives the Tribunal a discretion on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.

20. Subsection 28(7) provides that where an application for an enabling order is sought:

“…it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”.

21. In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

22. The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:

One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but 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’…

23. The Tribunal has adopted a similar meaning to the word “risk” as it appears in the current Act.

24. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a Working With Children Check clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The evidence relied upon

25. The applicant relied upon the following documentary material:

1. Application for review filed 3 July 2017 attaching the Notice of Cancellation and Reasons for Decision of the Children’s Guardian dated 4 April 2017 – Exhibit A1;

2. Bundle of documents filed 15 August 2017 comprising a Statement of Service from his current employer; a copy of the bond with which he must comply pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999; a report from a psychologist; and a document outlining his work experience – Exhibit A2.

26. The applicant made an oral statement and was cross-examined on 11 December 2017 by Ms Douglas-Baker, counsel for the respondent.

27. The respondent relied upon the following documentary material:

1. Respondent’s Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 31 August 2017 comprising 78 pages – Exhibit R1;

2. A letter of instructions to Dr Stephen Allnutt, Forensic Psychiatrist, dated 5 October 2017 (handed up at the hearing) and an Expert Report of Dr Allnutt dated 6 November 2017 filed on 7 November 2017 – Exhibit R2;

3. Further documents filed by the respondent on 28 November 2017 comprising 181 pages – Exhibit R3;

4. Letter to the applicant dated 19 July 2017 – Exhibit R4;

28. The respondent also relied upon submissions filed on 1 December 2017 which for convenience were marked Exhibit R5.

The evidence presented

29. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

30. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

31. The evidence is set out below under subheadings that refer to the section 30(1) factors and section (1A) tests set out in the Act.

Section 30 (1) factors

(a) The seriousness of the offences

32. As noted above, the applicant was convicted on 6 June 2017 for two counts of Assault with Act of Indecency for which he received a 2 year good behaviour bond with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

33. The first offence occurred on 25 July 2016 when the applicant grabbed a 25 year old woman on the right buttock at Central Railway Station during the morning peak period. The victim took a photograph of the applicant and made an immediate complaint to station staff. The victim stated that she felt violated and angry about what happened.

34. The second offence occurred on 24 February 2017 at Wolli Creek Railway Station. The applicant grabbed a 29 year old woman on the buttocks. She confronted him and made an immediate complaint to station staff following which a report was made to NSW Police. Witnesses described the victim as visibly very upset.

35. On 4 April 2017 the applicant was apprehended by police after being identified from a combination of CCTV footage and Opal card records. He was interviewed by police on that day.

36. The respondent asserts in written submissions that the incident is serious because the applicant’s behaviour, although isolated, adversely affected both of his victims. The respondent argues that the applicant’s initial protestations that the incidents were accidents cannot be accepted and that his failure to take responsibility and apologise for his actions reflects poorly on him. The respondent acknowledges that although the offences may be regarded as at the lower end of the scale of seriousness of disqualifying offences, the opportunistic nature of them suggests that they may not be isolated and that the applicant has not recognised the seriousness of his offending. He has also not directly expressed remorse for his victims and has not stated what steps he has taken to prevent a recurrence of the behaviour.

37. The applicant acknowledged that he had broken the law. He stated that he was very distressed at being arrested in public and handcuffed by police even though he told them he would willingly go with them. The applicant said that the police locked him in a cell; joked with each other about what might happen to him; and told him he might be jailed for 5 years. He was also worried that he may lose his job as he did not know at that time that his employer would be supportive of him. The applicant told us that he was unable to look for work while awaiting trial as his bail conditions precluded him from using trains. He stated that he learnt a great deal as a result of the consequences of his actions and having to tell his family and friends what he had done. He stated that he had initially not admitted guilt to the police because he was very frightened.

38. The applicant stated that he is very apologetic for his behaviour and was previously ‘endlessly beating himself up’. He admits that he did the wrong thing and now realises how serious his situation is. He is acutely aware that one of the reasons he was given a section 10 bond is that he was a first time offender and that, if he offends again, it is likely to result in a custodial sentence. The applicant told us that he was initially unable to admit to the police or his lawyer what he had done and acknowledged that he had not been truthful. He said that this was because he was very stressed. The applicant told us that the period when he was on bail was very stressful but things are now better and he has more strategies to deal with stressful situations. His psychologist has taught him to distract himself, how to relax, to travel at non-peak times, and to make new friendships. He told us that he feels Dr Allnutt’s report does not consider the impact that the arrest and the process that followed have had on him.

39. Under cross examination the applicant stated that he had never been in trouble with the law before and had not previously had to address the problems he has as a result of his abusive father and brother. He was asked whether or not he had acted on the recommendations of Dr Allnutt and responded that his partner refused to participate in couple’s therapy. He stated that their relationship has improved and he now has more perspective as a result of the work he has undertaken with his psychologist.

40. The applicant stated that he has thought about the impact of his behaviour on the two women he assaulted and that he ‘wishes he could take it back’ but cannot do so. He stated that he would have apologised to the victims if he had the opportunity to do so at trial, but felt that pleading guilty would be better for them so that they did not have to go to court and be questioned. The applicant stated that he is now ‘thoroughly aware of the seriousness’ of his behaviour and reiterated that he was not initially truthful with the police because he did not know how to explain himself and was frightened.

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

41. The first offence took place approximately 16 months ago and the second approximately 10 months ago

42. Since that time the applicant has not been the subject of any complaints and has not been charged with any offences of a similar nature.

43. The respondent notes that the applicant has been the subject of an allegation of conduct which would amount to an allegation of sexual assault but the victim declined to cooperate with police or provide a statement, although she made an immediate complaint to a third party. The applicant declined to answer questions about this issue because ‘anything I say in my defence cannot be verified’. He stated that the woman who made the allegation has mental health issues and that he does not want to get her into any trouble.

(c) The age of the person at the time the offences or matters occurred

44. The applicant was 31 years of age at the time of the first offence and 32 years of age at the time of the second offence.

(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

45. The victim of the first offence was 25 years old and the victim of the second offence was 29 years old.

46. Both victims were assaulted on public transport at busy times. The respondent argues that the victims were entitled to expect that their ‘bodily integrity would be respected’ and that they would not be assaulted on public transport by a stranger.

47. Although the victims were both upset by the assaults and are entitled to be able to travel on public transport without fear of being assaulted, the offences took place in a very public situation.

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

48. The applicant is 6 years older than the victim of the first offence and 3 years older than the victim of the second offence. There was no relationship between the applicant and the victims.

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

49. The victims were not children.

(g) The person’s present age

50. The applicant is now 32 years of age.

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

51. The applicant has not been charged with any offences other than the disqualifying offences and has not been the subject of any complaints or disciplinary proceedings in the course of his employment or volunteer activities.

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

52. The report of Dr Allnutt states that the applicant reported relationship difficulties and believes his offending behaviour may have been as a result of his sexual frustration. The applicant told Dr Allnutt that he was ashamed immediately following the behaviour.

53. The respondent states that in his report the expert witness, Dr Stephen Allnutt, considers the applicant to be ‘an above average risk of future sexual offending based on the Static 99’. Dr Allnutt holds a ‘moderate concern’ that the applicant might engage in future frotteuristic behaviour with a small risk that a victim of any future such behaviour might be an older adolescent whose age is mistaken by the applicant. The respondent acknowledges that Dr Allnutt does not consider the applicant to pose a direct risk to children as a result of his frotteuristic behaviour.

54. The respondent argues that the sexual intimacy issues in the applicant’s long-term relationship and his sex drive, together with Dr Allnutt’s recommendation that the applicant trial antidepressants to suppress his sex drive, suggest that the applicant may re-offend. The respondent noted that, if directed at children, the behaviour would cause harm.

55. The applicant told us that he has seen Ms Mingga Anggawan, a psychologist, for 13 sessions but was reticent to continue once he realised that the content of his therapy was open to scrutiny through the Tribunal process and it was not something he could consider to be ‘a safe place’. He has been developing strategies with his psychologist to ensure he does not re-offend and returning to work is considered to be a protective strategy. He intends to continue therapy once the Tribunal proceedings have concluded. The applicant told us that he has had multiple child-related jobs and had never been the subject of any complaint.

52. Under cross-examination the applicant told us that he does not believe he will ever offend again in the same way because he has learned from his mistakes. He stated that he has no attraction to children and that his psychologist does not believe he is a risk to children. He enjoys working with children with autism spectrum disorder with whom he is able to communicate effectively because of his own experience and has no other employment skills.

53. Dr Allnutt was examined by counsel for the respondent. He confirmed that the applicant has autism spectrum disorder of low severity as a result of which he has difficulties with communication and certain social situations. Dr Allnutt outlined the risk factors in relation to the applicant re-offending and noted that several of these are amenable to treatment. He recommended that the applicant continue with cognitive behavioural therapy; potentially seek treatment from a therapist specialising in treating sexual offences such as frotteurism; and consider medication such as an anti-depressant to reduce his sex drive.

54. Dr Allnutt opined that the applicant is genuinely remorseful in relation to the offences he committed and that this reduces his risk of re-offending. He noted that for people who are more ‘pro-social’, such as the applicant, remorse is a motivating factor for behavioural change. Dr Allnutt commented on the applicant’s high IQ and unique capacity to assist children with autism spectrum disorder as a result of his own experience. He stated that it is a pity that the applicant is in his current predicament and that ‘it would be very unfortunate if he cannot return to work in that area’.

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

59. The applicant told us that the magistrate who sentenced him commented that he could ‘now return to work’. We were not able to verify this but accepted that it was what the applicant understood.

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

60. The Children’s Guardian did not make any additional submissions.

Section 30(1A) tests

61. The Children’s Guardian submitted that the reasonable person would not allow his or her children to have direct contact with the applicant that is not directly supervised and that it is not in the public interest for the Tribunal to grant an enabling order.

62. The respondent submitted that even though the psychological evidence is that the applicant is unlikely to target children, the reasonable person informed of the applicant’s diagnosis and history would not permit his or her child to have unsupervised contact with the applicant. Counsel for the respondent argues that although the behaviour of concern was at the lower end of seriousness, it was sufficient to give rise to these section 28 proceedings. It was submitted that there is a need for the applicant to take further remedial action, including psychological therapy and a trial of anti-depressant medication and that he cannot discharge the onus on him to prove that he is not a risk to children.

63. The applicant told us that he understands the need to continue therapy and refutes that he may re-offend against a child whom he has misjudged to be an adult. He told us that he has no sexual attraction to children.

64. The respondent accepts that it may be in the public interest for the applicant to contribute as a Teacher’s Aide to children with autism spectrum disorder given his personal experience, but argues that this is outweighed by the potential risk he poses to children.

Consideration

65. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

66. The behaviour that took place and triggered these proceedings is serious and clearly caused significant distress to the victims. Although we accept that it is at the lower end of seriousness in relation to disqualifying offences, only a relatively short period of time has elapsed since the offences were committed. This counts against the applicant.

67. The applicant represented himself admirably during the hearing. He demonstrated insight into his behaviour and did not seek to minimise it or to blame others for his problems. He has sought counselling and has developed strategies to manage his behaviour. We accepted that this has been limited by his partner declining to participate in couple’s therapy and because of the applicant’s concern that the contents of his counselling sessions may be disclosed to the Tribunal.

68. The applicant appeared genuinely remorseful and Dr Allnutt also opined that the applicant’s remorse was genuine. We accepted the applicant’s evidence that he would have liked to apologise to the victims but has not had the opportunity to do so because he wanted to spare them the distress of going to court by pleading guilty to the offences with which he was charged, against his lawyer’s advice. We also note that the applicant chose to face the consequences of his behaviour, rather than pleading ‘not guilty’. The applicant accepted that his behaviour was serious and harmful to his victims.

69. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and we find that he applicant has been open and frank and willingly disclosed all relevant matters.

70. We placed weight on the report of Dr Allnutt and the evidence he gave during the hearing. Although we accept Dr Allnutt’s evidence that there is a moderate risk that the applicant may re-offend against adults, we do not accept that there is a significant risk that the applicant might ‘accidentally’ offend against a child whom he mistakenly thinks is an adult. The victims were both in their mid to late twenties and there is no evidence that the applicant has targeted children or person who he believes are adults but who are actually children.

71. We did not place any weight on the allegation referred to in paragraph 39 above given that the applicant was not the subject of any charges in relation to the incident.

72. We were told that the applicant’s employer is aware of the Tribunal proceedings and wants the applicant to be able to continue working with children who have autism spectrum disorder. This weighs in his favour.

73. We note that the applicant has never been the subject of any complaint in the workplace, including in paid and voluntary roles where he has worked with children. This also weighs in his favour.

74. We are satisfied that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.

75. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order. The applicant has relatively unusual skills and experience to assist children with autism spectrum disorder. However he has limited other vocational skills and, if unable to work with children, may be unemployable and reliant on government benefits to survive. It is in the public interest for him to assist others with autism spectrum disorder rather than potentially face unemployment.

76. While we accept that the applicant’s behaviour was serious and harmful to his victims, we are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

77. Having regard to the abovementioned factors and the material before us, in our view, the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

Orders

78. The order of the Tribunal is that:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

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

Registrar

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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: 08 January 2018