DFL v Children's Guardian

[2018] NSWCATAD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DFL v Children’s Guardian [2018] NSWCATAD 121

Hearing dates:

28 February 2018

Date of orders:

08 June 2018

Decision date:

08 June 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member
R Royer, General Member

Decision:

(1) The application for an enabling order is dismissed.

Catchwords:

ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - disqualifying offence under section 61L of the Crimes Act 1900 (NSW)– assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children -whether 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 affected person is engaged in any child- related work – enabling order refused.

Legislation Cited:

Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Evidence Act 1995

Cases Cited:

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BYR v Children's Guardian [2013] NSWADT 310
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

Category:

Principal judgment

Parties:

DFL (Applicant)
Children’s Guardian (Respondent)

Representation:

In person (Applicant)

 

Counsel:
M Kalyk (Respondent)

  Solicitors:
NSW Crown Solicitors Office (Respondent)

File Number(s):

2017/00301972

Publication restriction:

Order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcasting without leave of the applicant’s name or that of any person or information which might identify the name of the applicant.

REASONS FOR DECISION

Non-publication orders

1. In this matter the Tribunal made an order on 28 February 2018 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcasting without leave of the applicant’s name or that of any person or information which might identify the name of the applicant. As a consequence, the applicant is referred to in these reasons as DFL. Specific information that may reveal his identity is discussed in a non-specific way in order to protect his identity.

Background

2. DFL seeks an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (‘the Act’) which will, if granted, be a declaration that he not be treated as a disqualified person for the purposes of the Act. While the applicant is seeking a clearance so that he can work on school infrastructure, the enabling order would permit him to work with any children in any child related work.

3. The Children’s Guardian refused DFL’s application for a working with children check clearance on 19 September 2016 on the basis that he had a disqualifying conviction for indecent assault contrary to section 61L of the Crimes Act 1900. He was convicted of that offence on 6 January 1997.

4. DFL filed his application for an enabling order in the Tribunal on 4 October 2017. We heard the application on 28 February 2018. At that hearing DFL represented himself, while the Children’s Guardian was represented by Mr M Klyak.

Material before the Tribunal

5. In considering DFL’s application the Tribunal had regard to the following materials:

1. DFL’s application for an enabling order filed 4 October 2017, with attached copy of notice to disqualified person.

2. Email from Crown Solicitors Office (CSO) to DFL timed at 11:30AM on 24 January 2018.

3. Emails from DFL to CSO timed at 7:16PM and 7:23PM on 24 January 2018.

4. Email from DFL to CSO timed at 4:46PM on 15 February 2018.

5. Bundle of documents filed by the Respondent;

6. Respondent’s submissions

6. DFL gave evidence at the hearing and was cross-examined. He was the only person to give oral evidence.

The legislative scheme

7. The Act regulates who can engage in child-related work by requiring that they have “working with children check clearances.” 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.

8. Section 8(1) of 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 Children’s Guardian for the relevant working with children check clearance.

9. The term ‘child-related work’ is broadly defined in section 6 of the Act and in Pt 2 of the Child Protection (Working with Children) Regulation 2013 (NSW). Clause 10 of the Regulation provides that:

Work in schools or other educational institutions (other than universities) is child-related work.

It is not necessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in, or proposes to engage in, ‘child-related work.’

10. Section 13 requires that an application for a clearance be made to the Respondent.

11. Section 18 provides:

(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

12. Section 5 of the Act defines “conviction” as including a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

13. The offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) is an offence specified in Schedule 2 of the Act and a Court’s finding of guilt of that offence makes the applicant a ‘disqualified person,’

14. Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended under s 23 prior to that time.

15. Subsection 28(1) of the Act makes provision for a ‘disqualified person’ to make an application to the Tribunal for an enabling order. Relevantly it provides:

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) …

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

16. The standard of proof to be applied in this matter is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995 (NSW); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34]. It is important to emphasise that s 28(7) provides that it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children Therefore, in these proceedings the applicant bears the onus of proof.

17. The meaning of the word ‘risk’ was considered, by 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. Those remarks are equally applicable to the word ‘risk’ as it appears in the Act This is the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523. The risk should not merely be any level of risk but must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39] ; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).

19. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. Relevantly, it provides:

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,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

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

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

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

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

(2)  …

20. Finally, 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], AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]. 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.

Consideration

21. It is convenient to discuss DFL’s application by considering each of the factors that s 30 of the Act requires the Tribunal to have regard to.

The seriousness of the matters that caused the refusal of a working with children check clearance

22. The matters leading to the refusal of DFL’s application for a working with children check clearance arise from his conviction by the Magistrates Court on 6 January 1997 of one count of common assault, beat and illtreat and one count of indecent assault. DFL pleaded not guilty to those charges and was represented at the hearing. He was convicted on both counts. He was fined $300 for the assault, beat and illtreat, and $750 (with $50 costs) on the indecent assault.

23. Only the conviction for indecent assault under s 61L of the Crimes Act is a trigger offence leading to DFL’s disqualification from obtaining a working with children check clearance.

24. The charges related to an event that occurred in a local hotel at 10:30pm on 23 February 1996. There is no transcript or recording of the Magistrate’s Court hearing available, and no record of the evidence given or of the Court’s reasons for decision. There are statements from the attending Police officers, copies of the record of interview with DFL, Court documents and a COPS Event which records what was said by the victim to have occurred that night. It says:

ON FRIDAY THE 23RD OF FEBRUARY, 1996 THE VICTIM, HER FIANCEE.......AND A NUMBER OF FRIENDS WENT OUT FOR A FEW DRINKS. AT APPROX. 10PM THAT EVENING THEY WENT TO THE … HOTEL. AFTER A SHORT TIME, THE VICITM WENT TO [GET] SOME DRINKS FROM THE REAR BAR. AS SHE WALKED TOWARDS THE BAR, SHE WALKED PAST THE ALLEDGED OFFENDER, [DFL]. [DFL] WAS WITH A GROUP OF FRIENDS AND RELATIVES WHO WERE PLAYING THE NEARBY POOL TABLES. AS [THE VICTIM] WALKED BY, [DFL] ATTEMPTED TO ENTER INTO A CONVERSATION WITH HER. HE THEN PLACED HIS ARM AROUND HER RIGHT SHOULDER FROM BEHIND, TO WHICH SHE DID PROTEST. AS [THE VICTIM] TURNED, FACED [DFL] AND ATTEMPTED TO REMOVE HIS ARM FROM HER SHOULDER, SHE FELT A HAND ON HER VAGINA AND 'GRABB' HER. AS THIS HAPPENDED SHE LOOKED AT [DFL] AND SAW THAT HE WAS STARING

STRAIGHT AT HER. AS A RESULT OF THIS, SHE SLAPPED [DFL] ONCE TO THE FACE. HE INTERN THEN SLAPPED HER BACK. AS A RESULT THE TWO ENTERED INTO A VERBAL CONFRONTATION WHICH LEAD TO THE TWO BEING SEPERATED BY HOTEL STAFF. AS THIS OCCURED, [HER FIANCE] HAS BECOME INVOLVED AND AFTER BEING TOLD WHAT HAD TRANSPIRED, BEGAN TO FIGHT WITH [DFL]. THE TWO WERE THEN SEPERATED & [DFL] TAKEN OUTSIDE TO THE FRONT OF THE HOTEL. DUE TO INCREASING TENSION BETWEEN THE REMAINDER OF [DFL] GROUP AND ........OVER A SHORT TIME,

POLICE WERE CONTACTED TO ESCORT THE TWO FROM THE HOTEL.IT WAS DURING THIS THAT [THE VICTIM] FIRST COMPLAINED TO POLICE AS TO WHAT HAD OCCURRED. DETAILS WERE THEN OBTAINED FORM BOTH PARTIES, WITH .... & ... MAKING A STATEMENT TO POLICE AT THE STATION A SHORT TIME LATER. AS A RESULT OF THE INCIDENT. [THE VICTIM] HAS SORENESS TO HER MOUTH AND A GENERAL ILL FEELING ABOUT BEING GRABBED IN THE MANNER COMPLAINED OF.

25. It is clear from reading the Police statements and the record of interview that from the moment the victim first alleged that he had grabbed her vagina, DFL has denied that allegation. He denied it on the night, in the record of interview conducted on 4 March 1996, and when he entered a plea of not guilty to the charges, which were laid by summons.

26. A reading of the record of interview reveals that DFL said that at the hotel he had begun chatting with the victim, whom he knew as a former neighbour. He said that he “wasn’t trying to crack onto her” because, “I’ve got me missus and I’ve got two kids.” He said he had rested his arm on the victim’s shoulder, when, out of nowhere, “I just got hit and I don’t know why.” She had not tried to remove his arm. She had hit him in the mouth with her right hand. He had told her not to: and she had hit him again. He had then grabbed her and pushed her, before he was restrained, and then “some bloke” punched him in the mouth. When he was asked whether at any stage he had grabbed her on the vagina, he replied, “Definitely not.” He denied doing or saying anything to provoke her actions.

27. In submissions, the Children's Guardian acknowledged that offence “is relatively limited and took place some 20 years ago”. Yet, as the submissions point out, it is a disqualifying offence and demonstrates a certain attitude (at the time) towards women. The Children's Guardian submitted that:

“It will ultimately be a matter for the Tribunal the extent to which the Applicant has shown remorse and insight.”

28. DFL was keen to point out that the offence did not involve a child. Indecent assault contrary to s 61L of the Crimes Act is however, an offence that the NSW Parliament has seen fit to classify as a disqualifying offence, with the result that it is to be presumed that DFL poses a risk to the safety of children, unless he proves that is not the case.

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

29. The offences which DFL was convicted of in March 1996, 20 years ago.

The age of DFL at the time the matters occurred

30. At that time DFL was aged 24

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

31. The victim of the assault was aged 26. While the Children's Guardian submits that the victim “was vulnerable as she was capable of being overpowered by DFL”, there is no evidence as to their comparative sizes or combative abilities that justifies that submission. Indeed, what is known of her version of events does not suggest a frail vulnerability on her part: rather, she vigorously and physically defended herself.

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

32. The victim was two-years older than DFL, with both in their mid-twenties. DFL and the victim knew each other, but were not friends or acquaintances. They had lived in the same block of housing units.

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

33. The victim was not a child.

DFL’s present age

34. DFL is now aged 46.

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

35. The convictions for assault and indecent assault arising out of the events of the night of 23 February 1996 are DFL’s only convictions. He has no other convictions, before or since. Those events occurred 22 years ago.

36. DFL runs, with family members, a business supplying and installing plant and equipment in buildings. He says it is a successful business that supplies and maintains plant and equipment in schools and commercial premises.

37. His partner (now wife) is still the woman he was living with at the time of the offence. She was not present on the night in issue. Together they have raised their children to adulthood. In his evidence DFL described himself as an upstanding member of the community.

Any information given by BJQ in relation to, the application

38. DFL provided the Tribunal with a copy of an email he wrote to the CSO on 24 January 2018. It read (without corrections):

…

I was found guilty and charged for indecent assault back in 1996.

…

The charge indecent assault, basically, was from me talking to a female and me placing my arm on her shoulder, after me receiving three slaps in the face i pushed her hard away from me. After me pushing her she had fell over.

Possibly, i had pushed her in the face but i recall pushing her in the chest area.

When i was having an interview at the police station, the officer was asking questions about me touching her on the vagina during conversation with her at the … hotel.

This i deny and always will.

I defended my actions in court, but was found guilty.

I did put my arm on her shoulder and i did forcefully push her away, but to this day, i can never recall touching her between the legs. i have thought about this now and again over the last 20 years, and cannot picture myself, or re-enact doing this, this actually does my head in sometimes.

But, i have been found guilty by the judge and accepted the charge at the time so i must of done it.

…

As for my conduct since the offence, i have never harmed anyone in anyway before this incident and for the past 20 odd years after it and never will.

My age at the time, i was 24 and [the victim] was 26.

I had known the victim …, but only because we lived in the same unit complex at the time.

My present age is 46.

My criminal record consists of this charge alone, except a few speeding fines if that counts.

In relation to working with children.

I have never harmed any child in anyway, and will never do so.

The fact that i am being questioned about this makes me sick to the stomach.

The fact is that my record shows this indecent assault charge was with an adult and not a child.

If you think that i am not worthy of working with children you are completely wrong. In fact, i am being insulted.

I can’t explain to you if or would i ever harm a child. i don’t think any words would explain that.

But my opinion on that matter, i think it is disgusting, weak, inhumane and downright wrong. The people who actually do harm to any child should be dealt with the full penalty of the law.

My wife and i have … children, …and nieces/ nephews.

I have never told my kids i have this charge against my name. I am embarrest for myself that i got into this position from day dot with an indecent assault charge. I Hate it.

Regarding the victim .... I do have regret that she also had to go through this. I have remorse for her, and hope she is ok and living her life to the full.

As you may be aware, i have a working with children check licence that is [another state] issued which i have had for a couple of years.

…

39. In a further email dated 15 February 2018 DFL addressed the criteria in s 30(1) of the Act. He wrote (without corrections):

Under section 30 (1) of the CP Act, response, 2 1

(a)This is a serious offence   

(b)22 years have passed since my offence i was found guilty of.

My conduct since this offence has been perfect, at no stage in the last 22 years have i ever or even thought of harming any human being.

(c) i was 24 years of age at the time of the offence

(d)i was 24 and [the victim] was 26.

(e)2 years age difference. Partially Known to me as she lived in the same unit complex at one time.

(f) Was not a child. Either of us.

(g)l am 46

(h) This is the only offence against my name. My conduct as a person has been as good as any upstanding person of society.

(i) There has never been any repetition of any kind and will never be.

(j!) Given to the appropriate parties as required and asked.

I own and operate with my [family] [a business]. Our business services, installs and maintains [plant and equipment].

…

Over the past 20 years, i have dealt with women and men customers by the hundreds, probably in the 1000's.

We have a regular Client base of men and women in a domestic and commercial sense.

I personally deal with all my clients daily for work to be done, meetings and tenders etc.

As you can see by my record, i have never committed any crime since this charge 22 years ago.

At no stage, will i ever again commit such a crime in this nature for the rest of my life.

Any abuse to a woman, man or child has never crossed my mind even prior or during this incident.

Questioning me in regards to respecting women, or you thinking i overpower women is insulting to me.

But, with this crime i have been found guilty of, i respect being questioned about this.

The way i was brought up was to respect all people, especially women. It has always been 'Ladies First' for me whether it is opening a door for them or pulling out there chair to sit. That is just me.

I really don't know the words to prove this, the only thing i have is my criminal record from the date of the offence till now.

As for the Victim in all this, i have great remorse for [her]. At no stage should she or any Woman be abused or assaulted in any manor.

I have never known what stress or mental health issues she may of suffered during or after this happening to her. Me grabbing her between the legs would of been very offensive to her. Me pushing her to the point of falling over

would of been a terrible thing to experience. No doubt she would of felt helpless, vulnerable and scared.

I hope she is ok and living her life happily and wish her well.

I hope she is ok and getting on with her life with no ongoing issues from my actions that night.

At the time of the offence, i have always thought i pushed her away ( hard enough for her to fall to the ground) in defence.

After being slapped in the face 3 times by her quiet hard, after the third slap is the point were i pusher her over.

The reason why she slapped me is because i had touched or grabbed her on the vagina amidst conversation. There is no

There the email ends.

40. In his evidence to the Tribunal DFL said he had always denied touching the victim’s vagina.

“I have always denied it and will to the day I die.”

He said he felt for the victim and knew it would “devastate” him should “it happen” to his daughter. He said he was remorseful for pushing the victim over.

41. DFL said that he had been talking to the victim. He agreed he had put his hand on her shoulder. Then, “She hit me in the face out of the blue.” He had no idea why she hit him. He agreed that, if his versions of events were accepted, it meant the victim had made up the story about being grabbed between the legs. He did not understand why she would do that. He agreed that the more likely scenario was that he did touch her: it made more sense than his recollection of events.

42. DFL said that if he had done what she alleged he would have pled guilty. He agreed with the proposition, put to him by Mr Kalyk, that it was fair to say that he had no insight into or remorse for the indecent assault. He then said that, “My actions were in self-defence.” It is difficult to have remorse for or insight into behaviour that you say did not happen.

43. When asked who knew about the events of that night and of his convictions, DFL said that his wife, and members of the family and friends who were with him on the night knew. He had not told his children. He said his wife had been served with the summons when he was charged and, “was not happy with the other side.”

44. DFL said he had been drinking for some time on that night. He was intoxicated, but not very intoxicated. He had had, “10 beers, maybe less.” He agreed that alcohol had played a role in the events of the night. He was asked about his drinking habits now. He said that he has two to three beers every night. When his mates are about he might drink ten beers, “but then I peak and go to bed.” He drinks more when he goes camping. He does not have issues with his drinking: there had been no incidents or issues. When asked about the use of recreational drugs, DFL said, “I don’t touch them.”

45. When asked why he had not told his children about his conviction, as perhaps a valuable lesson on the potential consequences of drinking, DFL said:

“I haven’t decided not to tell the kids. I haven’t told them: it hasn’t come to that.”

He then said that he would tell them.

46. DFL said he had not consulted a psychologist or psychiatrist about the events leading to his conviction, and had not sought assistance in preparing for the hearing. He said that the conviction was:

“A massive black mark against my name. I hate it.”

47. DFL confirmed that he had obtained a working with children check clearance from another State about three years ago, but had only done so after seeking a review of an initial decision to refuse him a working with children check clearance made on the basis of his indecent assault conviction. There had been a telephone meeting about six weeks after he sought the review, which he thought was a Tribunal hearing. He had then been granted a working with children check clearance.

48. We noted that DFL had not produced any character references. He said he was of good character and, “did not want to tell people what to write.” He also said:

“I do not want to tell people of my offending.”

And

“I have nothing to hide.”

Any relevant information in relation to the person that was obtained in accordance with section 36A

49. No information has been provided to the Children's Guardian under s 36A.

Any other matters that the Children’s Guardian considers necessary

50. The Children’s Guardian position with respect to DFL’s application for an enabling order is that it neither consents to nor opposes the application.

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

51. In submissions Mr Kalyk submitted that it is clear that DFL has not accepted the conduct for which he was convicted, and that while he feels sympathy for the victim he is not remorseful for that conduct. We think those conclusions self-evident from DFL’s own evidence. We think it likely that DFL will continue to deny that he was guilty of any act of indecency, despite the improbability of his own version of events. He simply cannot see himself committing the act he was found guilty of. He therefore has no remorse for his actions, although we think he has a relatively good understanding of the events of that night and their consequences for those involved. These are factors which must be considered when considering the likelihood of his reoffending and the impact on children of any such repetition.

52. On the positive side is that DFL has not been convicted of any offences since 1997 (twenty-one years ago) and has had no apprehended violence orders made regarding him. This points to him being of good character since 1997 and not reoffending. There is no evidence that suggests he has ever harmed a child.

53. DFL presented himself to the Tribunal without any character references or professional assessments of the likelihood of his reoffending, and of the risk he poses to children. He impressed as honest and candid in his evidence to us. That DFL denies the indecent assault is in a matter of real concern.

54. The fact that that DFL has held a working with children check clearance from another state with similar (although not the same laws) for a number of years without incident is also to his credit, and speaks to him being assessed by the relevant authorities in the other state as not being a risk to the safety of children.

55. Despite the presumption provided by s 28(7) that DFL poses a risk to the safety of children, we concluded, on the material before us and for the purposes of s30(1)(i) of the Act, that DFL is unlikely to again commit an indecent assault. If, contrary to that assessment, he does reoffend, then we think, on balance, that it is unlikely that such an offence will impact on a child: the victim would in all probability be an adult female.

56. This is not a finding that DFL poses no real or appreciable risk to children, but concerns the unlikelihood of him reoffending and of any reoffending impacting on children. They are different things.

Section 30(1A)(a) - Are we satisfied 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 affected person is engaged in any child - related work?

57. This test is similar to that found in s 13(3) of the Working With Children Act 2005 (Vic) which provides:

(3) In satisfying himself or herself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Secretary must be satisfied that—

(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

58. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789, Judge McNamara, Vice President, explained at [36 – 37]:

This sub-clause and its companion sub-section in the Working With Children Act requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

VQB was eloquent in arguing his case. He was refreshingly candid, avoiding any attempt to gloss over or make light of the seriousness of the events in his past. Nevertheless, the overall caution which the whole of Section 13 of the Working With Children Act requires in making these determinations as reinforced by the new provisions added with effect from 31 December 2012, lead me to the view that striking a proper balance between society’s interest in taking a cautious approach for the protection of children and young people against the legitimate interest of persons who have encountered brushes with the law to re-establish themselves fully in good standing in society leads to the affirmation of the Secretary’s negative assessment.

59. We think the caution sounded in VQB equally applicable when making an assessment under s 30(1A)(a) of the Act: appropriate scepticism and caution should be exercised when assessing whether a reasonable person would allow DFL to have unsupervised access to children, while DFL is working. The absence of independent evidence verifying DFL’s character and reputation, and addressing whether or not he constitutes a risk to children, means that (apart from DFL being granted a working with children check clearance by another state) the assessment relies on DFL’s evidence alone.

60. In the circumstances, and noting the statutory presumption that he is presumed to be a risk to the safety of children, the evidence produced by DFL has not persuaded us that a reasonable person would allow DFL to have unsupervised access to his or her children in the workplace. The fact that another state has granted DFL a working with children check clearance is not sufficient to persuade us to the contrary. There is no indication that there was any evidence as to DFL’s character, or independent assessments of the likelihood of him reoffending or harming children, considered when granting his interstate working with children check clearance.

61. We think that, as he denies the offence, caution requires that we look for and consider evidence of DFL’s character and reputation, and ideally at professional assessments of the likelihood of him reoffending, and of the risk he poses to children, before we can find that he satisfies the reasonable person test in s30(1A)(a). Accepting his evidence alone is not sufficient while he continues to deny the original offence.

62. We are not satisfied a reasonable person would allow his or her child to have direct contact with DFL that was not directly supervised by another person, while DFL is engaged in any child-related work

Public Interest: section 30(1A)(b) of the Act

63. Given our conclusion with respect to s 30(1A)(a) it is unnecessary for us to consider the public interest. Nonetheless, we indicate that we think the public interest requires that we refuse DFL’s application because the public interest, as reflected by the legislation, requires that he positively persuade us that he is not a risk to children, with the presumption being that he is a risk. Given his denials of the original offence and the absence of character evidence and professional assessments of his risk to children, he has not demonstrated that granting his application is in the public interest.

CONCLUSION

64. It follows that DFL’s application for an enabling order is dismissed.

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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 June 2018