DJP v Children's Guardian

[2018] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DJP v Children’s Guardian [2018] NSWCATAD 255
Hearing dates:	24 September 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member A Limbury, 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 with respect to the offence of committing an indecent assault. (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 – applicant is a disqualified person by reason of a conviction for the offence of committing an indecent act – presumed Applicant to be a risk to children - whether applicant has discharged the onus of proof to the contrary
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 FZ NSWCA 111 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 of Police 2014 NSWCATAD 184. Director of Public Prosecution v Smith (1991) VR 6 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DJP (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Miles (Respondent)   Solicitors: Applicant Self Represented Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00066033
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. The applicant, known in these proceedings as ‘DJP’ is a 57 year old man. He is married and has two adult children. DJP has had a life-long interest and passion for football. For the last 15 years, he has coached football teams and this has included coaching children and young people. For DJP to continue to coach football teams he requires a Working with Children Check Clearance (‘clearance’). The Children’s Guardian has refused to grant him a clearance because in 1995 he was charged, pleaded guilty and was convicted of the offence of committing an indecent assault. This is a disqualifying offence under the Child Protection (Working with Children) Act 2012 (‘the Act’). DJP has applied for an enabling order to allow him to obtain a clearance. The Children’s Guardian opposes his application.

2. The question for the Tribunal is whether DJP poses a risk to the safety of children. DJP cannot recall the events that formed part of the 1995 offence. The Tribunal must decide if the circumstances of the offence and DJP’s explanation gives rise to concerns that he may pose a risk to the safety of children. DJP also admits to having a history of drug and alcohol use and a history of mental health including previous admissions to mental health units. DJP submits he no longer uses drugs or alcohol and he is addressing his mental health. The Tribunal must decide if these issues present any risks regarding harm to children.

3. After consideration of all the evidence including the expert opinion of a psychologist, the Tribunal decided DJP had discharged the onus of proof and to make the enabling order so that he may be granted a working with children check clearance. These are the reasons for that decision.

4. Due to the sensitive nature of these proceedings the Tribunal has made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 requiring that names of the applicant and his family, as well as the name of the victim of the 1995 offence are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘DJP’ has been used for the applicant’s name.

The disqualifying offence

5. On 26 August 1995, DJP committed 3 criminal offences including the disqualifying offence of committing an indecent assault. He was 34 years old at the time. The reason for commission of the offences appear to be a belief by DJP that his then 32 year old girlfriend, V2 was having a relationship with another adult male, V1.

6. There were no transcripts available of the Court proceedings due to the age of the matter. However, the contemporaneous police documents describe that the offence occurred about 4.30pm when V1 drove into a domestic residence. DJP opened V1’s drivers side door and punched V1 in the head a number of times with a clenched fist. V2 went to the aid of V1 and DJP pushed V2 to the ground. V2 ran to the rear of the premises, entered the premises and DJP followed V2 into the premises. V2 attempted to make a phone call, however DJP terminated the call and DJP then;

1. pushed V2 into a chair and grabbed her by both wrists,

2. grabbed V2 by her face and twisted her face,

3. grabbed V2’s vagina and squeezed her vagina from the outside of her shorts; and

4. aggressively prodded with one of his fingers at V2s vagina from the outside of her shorts.

7. The next day, DJP attended a police station where he was arrested and charged with three offences being that DJP assaulted V1 occasioning actual bodily harm. He also assaulted V2 occasioning actual bodily harm and immediately after the assault, committed an act of indecency upon V2.

8. It was reported that DJP admitted to police to assaulting V1 but denied the allegations in relation to V2.

9. In the Local Court, DJP pleaded guilty to the above offences. The Court recorded a conviction and released him upon entering into a bond in the sum of $300 to be of good behaviour for two years.

10. A report from a probation officer in early 1996 states:

In interview [DJP] appeared to be suffering depression and stated that he sought the help of a psychiatrist who prescribed tranquilisers. He admitted the offences. He stated that he saw his girlfriend with another man and just snapped. He claims not to remember all the details as he was under the influence of tranquilisers at the time. Expressed remorse an embarrassment. [DJP] accepts that he needs professional assistance for anger management and grief counselling.

11. The reports from his probation officer in August 1996 includes some details of what the Applicant said in relation to the disqualifying offence:

Aggression – Claims not to be an aggressive person, despite his actions in the offence. A discussion of the offence included his assertion that he has learned a lesson from his behaviour, and he now considers his actions to have been inappropriate.

Offence – Went through the Police facts, giving [DJP] an opportunity to comment. He disagreed with a couple of the facts, in particular in relation to the assault upon [V2]. He denies assaulting her in any way and does not know how she sustained the injuries.

Background to the offence – [DJP] had been courting [V2] since 1992, and they lived together for a while. Almost 2 weeks prior to the offence, [V2], her mother and [DJP] had been at the Parramatta Leagues Club. [V2] met [V1] and played the poker machines that night. [V2] does not drink alcohol. [DJP] was furious that [V2] was socialising with this man she just met. Evidentially she gave [V1] her address. [V2] indicated there was some verbal altercation between himself and [V1] claiming that [V1] threatened him. The offence occurred 1 or 2 weeks later at [V2]’s home.

Attitude to offence – [DJP], while admitting the grossly inappropriate manner in which he handled his anger at [V2] for encouraging [V1], said the whole scenario reminded him of his situation with his ex-wife. He recalled his former wife having an affair with his best friend. [DJP] has two children at the time; separated as a result. His daughters… are now 8 and 6 years respectively. He has had access to them since 1994.

12. In DJP’s application to the Tribunal seeking an enabling order made on 28 February 2018, he denied the allegations in relation to his then girlfriend, V2. He stated the incident occurred “in the midst of him splitting up with her”. He stated that he was never formally charged over the alleged incident.

13. During the hearing, Counsel for the Children’s Guardian cross-examined DJP about the 1995 charges and put to him details of the offences against him as set out in the police documentation including his plea of guilty and conviction. DJP did not dispute the facts nor that he was convicted on the matters. However, he had no recollection of the events including discussing the matter with his probation officers.

Applicable law

14. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.

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

16. As stated, DJP was convicted for the offence of committing an indecent assault. This offence is listed as a disqualifying offence under s 1(e) of Schedule 2 of the Act. Subsection 18(1) of the Act states the Children’s Guardian must not grant a clearance to a person convicted of a Schedule 2 offence.

17. Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.

18. Subsection 28(7) of the Act places the onus on the Applicant to satisfy the Tribunal that he does not pose a risk to the safety of children.

19. The meaning of the word “risk” in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word meant:

“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 issue for the Tribunal to decide is whether DJP has discharged the presumption under s 28(7) of the Act that he poses a risk to the safety of children.

21. In determining this issue, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is to then consider making an order enabling an applicant to work with children, we must then consider the two-part test set out in s 30 (1A) of the Act.

Consideration of s.30(1) factors and Findings

a)   Seriousness of any matters that caused the assessment in relation to the person

22. DJP was convicted of the offence of committing an indecent assault. The offence falls at the lower end of seriousness in respect of the criminal law concerning sexual assaults. However, the offence is serious. It involved aggression, violence and the use of force. DJP’s actions most likely caused serious harm and trauma to the victim.

23. In evidence to the Tribunal, DJP did not dispute the facts but could not recall the events. He told the Tribunal that he was appalled by his actions. He expressed his deep regret and sorrow to the victims.

24. The Tribunal found DJP to be genuine in his explanation that he could not recall the 1995 offence. The Tribunal also found DJP to be genuine in his remorse.

b)   The period of time since those offences or matters occurred and the conduct of the person since they occurred.

25. The offence occurred in August 1995, some 23 years ago.

26. There are no further allegations or reports or complaints regarding DJP since the offence occurred.   

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

27. DJP was 34 years of age at the time of the disqualifying offence.

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

28. The victim of the disqualifying offence was 31 years of age. She was entitled to trust DJP given she was in a personal relationship with him.

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

29. The difference in age between DJP and the victim of the disqualifying offence was approximately 3 years. As stated, they had been in a relationship together.

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

30. The victim in the disqualifying offence was not a child.

g)   The person’s present age

31. The present age of DJP is 57 years of age.

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

32. Apart from the conviction in 1999 for driving with a mid-range prescribed concentration of alcohol, there has been no other charges or convictions against DJP since the 1995 disqualifying offence.

33. However, there were allegations of a sexual assault in 1992 and a breach of an Apprehended Domestic Violence Order in 1993. The details were that in July 1992, the wife of DJP at the time made allegations that he sexually assaulted her. The allegation was that he took off her panties and put his finger in her vagina and accused her of having sex with other men. However, it appears this matter did not proceed but an Apprehended Domestic Violence Order was put in place against DJP. In February 1993, DPJ was charged with breaching this Order by making an offensive telephone call to his wife. He was subsequently convicted of breaching the Order and a further charge of the improper use of phone (offensive). He was discharged without conviction on entering a bond in the sum of $1,000.00 to be of good behaviour for 12 months.

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

34. DJP was assessed by Clinical Psychologist, Dr Lea Crisante for the purposes of a risk assessment in relation to Working with Children Check Clearance. Dr Crisante had two appointments with him in June 2018 and again in July 2018. Dr Crisante provided a report dated 10 August 2018 setting out her findings.

35. In relation to DJP’s mental health treatment history, Dr Crisante wrote that DJP was a voluntary patient at Westmead Hospital from 8 August 2012 to 13 August 2018. This followed increasing irritability and his distress about thoughts of harming his son. He then transferred to the Hills Clinic, Kellyville and was treated by Psychiatrist, Dr Daniella Florida for Mood Depressive Disorder. His treatment included sessions with Psychiatrist, Dr Bickerton to address the impact of his behaviour on his family. He was also treated by Clinical Psychologist, Dr Emily Kwok to address issues with his children who were in their early teens at this at this time.

36. Dr Crisante confirmed DJP has a current GP, Dr Theresa Roberts who is highly regarded for her work with patients who have significant mental health issues. Dr Roberts reported that DJP had a long history of depression, which his consistent with a history of complex trauma relating to DJP’s early experiences and family history. Dr Crisante documented DJP’s early childhood being dominated by domestic violence perpetrated by his father towards his mother. DJP described his father as being particularly harsh and violent towards him as he was the oldest son and he wanted to set an example to his DJP’s younger siblings. He recalled the police were often called to the home and his father being taken away. He reported all his siblings had been damaged by their early experiences in the family. For example, his youngest brother was recently released from prison and had a heroin addiction.

37. Dr Crisante had the following impressions:

• DJP has complex trauma. His inability to remember what occurred on the day of the sexual assault is consistent with someone who has a significant trauma history and may have experiences of disassociation,

• DJP’s recent treatment and cessation of alcohol has been beneficial in addressing risk factors associated with such a history,

• DJP’s involvement in treatment and commitment to recovery is “quite remarkable and often not possible for individuals who have been subjected to the extent of interpersonal violence that he has experienced”. His motivation for this relates to his current happy relationship of 20 years and a desire to parent his young children differently to how he was parented, and

• DJP is remorseful about the impact of his behaviour has had on those he loves. He has a genuine desire to continue to improve himself and be the best father he can be to his children.

38. In respect of risk, Dr Crisante concluded;

His involvement in and perpetration of the sexual assault occurred at a time when [DJP was extremely vulnerable that he himself has only more recently recognised and addressed. His current circumstances are characterised by stability in his marital relationship, caring relationships with his children, a capacity to give to the broader community and ongoing support from mental health professionals. For this reason, I do not consider him to present as a risk of harm to children, as per Section 28 of the Child Protection (Working with Children) Act 2012.

39. Dr Crisante gave oral evidence in the hearing and was cross-examined. She made the following points:

• DJP’s previous offences in 1995 and the breach of the apprehended domestic violence order are all matters where the victims are adults and not children. Any risk to offending against children is minimal.

• DJP’s risk of further offending are tempered by the protective factors of a long and loving 20 year relationship with his wife, loving relationships with his children, insight into mental health and being proactive in seeking mental health treatment and his abstinence from alcohol for many years.

40. DJP gave oral evidence and expressed his remorse for the offences and his apologies to the victims. He stated he was ashamed and embarrassed by his actions that caused him to be charged. He is not the person he was in 1995. He has been abstinent from alcohol for 10 years. He doesn’t take drugs. He is engaged with mental health professionals. He is a father and a grandfather. He has a close and loving relationship with his children and their friends. He has coached football teams for the last 15 years and worked to support and mentor young people in his teams over that time. He is appalled by offences against children. He has never harmed a child and would never harm a child.

41. Based on the evidence of Dr Crisante and DJP the Tribunal finds there is a low risk of DJP repeating his offending behaviour.

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

42. DJP provided two personal references attesting to his good character and referred positively to his activities as a father, coach and tradesman. Counsel for the Children’s Guardian submitted that little weight should be given to these references as neither disclose that the authors were aware of the 1995 disqualifying offence and the deterioration of his mental health in 2012.

j1)   Any relevant information in relation to the person that was obtained under section 36A

43. No such information was provided to the Tribunal.

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

44. No further information was tendered by the Children’s Guardian.

Consideration

45. The Tribunal has considered the evidence as to whether DJP has discharged the onus of proof that he does not poses a real and appreciable risk to the safety of children. The question is a balancing exercise of several factors. On the one hand, DJP committed an indecent assault that likely caused serious harm and distress to the victim, being his partner at the time. On the other hand, the offence occurred 23 years ago. At the time of the offence, he was reportedly under the influence of drugs and alcohol. He has no further criminal history since the offence. He has no history of allegations or complaints against him involving children. He has expressed genuine remorse for the offence. Since the offence occurred, he has reformed himself. He has abstained from alcohol for the last 10 years. He is in a secure 20 year relationship and has close supportive relationships with his two adult children. He continues to monitor his mental health and engage in counselling. He has made positive contributions to his local sporting club and community as a mentor and coach to young football players and their families. On balance, the Tribunal finds that DJP has discharged the onus of proof and does not pose a real and appreciable risk to the safety of children.

The Reasonable Person and Public Interest tests: s.30(1A)

46. The Tribunal must now consider the tests outlined in s.30(1A) of the Act. The Tribunal must first determine whether a reasonable person would allow his or her child to have direct contact with the DJP in circumstances where he would not be directly supervised by another person while engaging in child related work.

47. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the police documentation describing the offence, the criminal history of DJP, the report of Dr Crisante setting out DJP’s mental health history and her findings on risk and the evidence of DJP acknowledging the offences and his expression of remorse and the reasons for wanting a clearance. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in DJP’s care.

48. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration.

49. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

50. DJP has coached and been involved in local football teams for the last 15 years. He gave evidence that he is passionate about helping and mentoring young people as part of his work as a coach. His son is also a skilled football player and DJP stated it was important for his relationship with his son to be involved in football and also, to be a role model to his son. In the circumstances the Tribunal is satisfied that it is in the public interest to grant DJP a Working with Children Check clearance.

Conclusion

51. DJP has persuaded the Tribunal that he does not pose a real and appreciable risk to the safety of children. It therefore follows that the correct decision is to grant DJP an enabling order and to order that the Children’s Guardian grant DJP a Working with Children Check clearance.

Orders

52. The orders are as follows:

1. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 with respect to the offence of committing an indecent assault.

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

Amendments

02 November 2018 - Anonymisation corrected.

26 November 2018 - "act of indecency" replaced with "indecent assault".

Decision last updated: 26 November 2018