DLF v Children's Guardian

[2019] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DLF v Children’s Guardian [2019] NSWCATAD 110

Hearing dates:

11, 12 April 2019

Date of orders:

07 June 2019

Decision date:

07 June 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior member
M Bolt, General member

Decision:

1. The decision of the respondent dated 15 March 2018 to cancel the applicant’s working with children check clearance is set aside.
2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

Catchwords:

CHILD Protection – Working with children – Criminal conviction quashed - Findings in respect of criminal allegations –Weight of evidence in absence of testing of evidence – Significant history without complaint – Absence of interpreter in court proceedings.

Legislation Cited:

Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013

Cases Cited:

BKE v Office of Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BLF [2016] NSWSC 1206 Children’s Guardian v CKF [2017] NSWSC 893
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255;
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category:

Principal judgment

Parties:

DLF (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:

 

J Kumari (Applicant)
A Douglas-Baker (Respondent)

 

Solicitors:

  Slattery Thompson Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2018/00125698

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 this proceedings is prohibited. (section 64(1)(a) of the Civil and Administrative Tribunal Act 2013)

reasons for decision

Summary

1. The applicant, who will be referred to as DLF, is a 57-year-old man who has worked in Australia as a driving instructor since 2006. As it is now a requirement of Roads and Marine Services that all driver instructors hold a working with children check clearance, the applicant applied for a clearance in March 2017. Following his application, the Children’s Guardian imposed an interim bar on the applicant, which resulted in the cancellation of his driving instructor licence.

2. Once a risk assessment had been completed for the applicant, the Children’s Guardian refused to grant him a working with children check clearance on the basis that in 2010 he had been charged with having indecently assaulted one of his driving students. It is not disputed that the applicant’s conviction was subsequently quashed on appeal and that there have been no further allegations made against him. On 20 April 2018, the applicant applied to this Tribunal for a review of the decision to refuse him a working with children check clearance. The Tribunal extended the time for the applicant to lodge his application for review on the basis that the applicant had earlier been out of the country and had then needed to obtain legal representation. In the hearing of this matter, the applicant was provided with the services of an interpreter.

Issues

3. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

4. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

2. whether it is in the public interest to grant the applicant a working with children check clearance.

Does the applicant pose a real and appreciable risk to the safety of children?

5. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children’s Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a prohibited person. The Children’s Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children’s Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children’s Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children (s5B and s18 of the Child Protection (Working with Children) Act2012) .

6. In determining whether the applicant poses a real and appreciable risk to the safety of children this, we have considered those issues raised by the Children’s Guardian in refusing the applicant a working with children check clearance, namely that:

1. he had been charged with two counts of assault with an act of indecency;

2. his former wife had made allegations of domestic violence and alcohol abuse against him;

3. in 2012 the Family Court had made a determination that the applicant was to have no contact with his then eight-year-old son.

7. We have then considered these issues in the context of those matters we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

What consideration do we give to allegations of indecent assault made against the applicant by a driving student?

8. It is not disputed that in 2009, the applicant was charged with two counts of assault with an act of indecency relating to a seventeen-year-old driving student (‘the complainant’). Although initially found guilty of the offences, the convictions were subsequently quashed in the District Court.

9. The allegations were that during a driving lesson, the applicant placed his hand on top of the complainant’s inner left thigh, brushing against her vagina and later squeezed her breast. When she returned home after the driving lesson, the complainant spoke to her mother and sister about the allegations and, later that day, attended the local police station to make a statement.

10. The applicant has always denied touching the complainant at all. In his police record of interview, the applicant denied even tapping his students – including the complainant - to correct their hand position on the steering wheel, stating that:

No, we always tell because we have a strict for that, we have been trained like that, that we are not supposed to touch any, any person, even male or female, so we don’t do that.

11. When asked by the interviewing officer why the complainant would make these allegations, the applicant said he had no idea but when pressed offered the following possibility:

Because I have been telling her that your driving is not that skilled and two or three times she was about to hit even on the gutter and the car, and care that the car oncoming on the other side when she was turning and maybe that reason she got offended and that’s it because, and she was telling me she needs a licence and then didn’t’ make anyway. I said, ‘This don’t go in the driving collection part because this not done in Australia. She said, ‘You have been in this industry for a very long time, you must be knowing somebody. And I said, No we can’t do that because it’s illegal, it’s clearly illegal because we are not supposed to do that. And if somebody is saying that if we bought they would be charged for that too, giving the guy I mean, money to..

12. When the interviewing officer repeated the question as to why the complainant would make the allegations, the applicant said:

I was strict with her all the time but telling her that your life is very much concerned about this and, you know, you’re young so you have to learn driving correctly and like she was making errors in driving.

13. In her evidence at the Local Court hearing held into the matter, the complainant stated that:

I’m not a really good driver actually and I was holding my steering wheel at the quarter to three position and he’d tap my hand every now and then and tell me to hold it at the ten to two and every mistake I made he’d pretty much tap my leg or touch my arm or he’d touch my side….I didn’t actually know whether it was a friendly touch or not so I didn’t really say anything at first, but he kept doing it and I did say ‘no’ like ‘don’t’ but he didn’t really respond to it until like later on when I figured out that he was – ‘

14. She described doing a kerbside stop ‘and he’d touch my leg.’ When asked to be more precise, she said, ‘He brushed my inner, upper thigh.’ When pressed by the magistrate and the prosecutor, she described it as a stroke.

15. She said that the applicant asked if she wanted him to be naughty and asked if she was scared. When she pushed his hand, he moved it away. Once they’d returned to the RTA car park, the complainant alleged that while they were both in the car, the applicant had grabbed her left breast with his right hand. She also gave evidence that the applicant had asked if she wanted him to take the driving instructor sign down from his car ‘so he can stop at a park.’

16. In cross-examination, when it was put to her that she could have told the applicant she didn’t want to continue anymore and wanted to go home, the complainant replied:

I wasn’t exactly sure because the way he was touching me I thought it was a friendly touch. I wasn’t – I was just confused. I didn’t know what exactly he was doing.

17. In her evidence, the applicant’s mother said that after the driving lesson with the applicant the complainant had been upset:

[She] said ‘next time never send me with that driver.’ And I said ‘why?’ And she told me that is – he took me to backstreets and he started to touch – touch her all over…He - she said he was touching over her stomach and her thighs and – and when she told her (as said) to stop he didn’t stop for her to get out.

18. In his evidence at the Local Court hearing, the applicant denied patting the complainant on the head, patting her shoulder, touching her ribs, touching her groin or the outside of her vagina, hitting or tapping her on her hand, grabbing or squeezing her breast or asking if she wanted to go to a park. He denied flirting with her or taking her to an isolated area where there were no houses. He denied saying words like ‘You are cheeky’ and denied saying ‘naughty’. He agreed that he had pulled over to explain the correct position of her hands on the steering wheel.

19. During the applicant’s evidence in the Local Court, the magistrate interrupted the proceedings to ask the applicant’s lawyer whether the applicant would benefit from an interpreter because ‘he’s having a lot of difficulty with the questions.’ The magistrate continued:

I’m getting a number of answers that aren’t answers to the questions that are being asked and he’s repeatedly asking for the questions to be repeated so I do have some concerns.

20. When asked about this in his evidence to this Tribunal, the applicant answered (through an interpreter) that he had only understood 20-30% of the Local Court proceedings

21. In finding the applicant guilty of the offences, the magistrate stated that:

I was extremely impressed by the strength and consistency of the young woman who gave evidence for the prosecution and I pointed to the fact that this was a highly complex story most unlikely to have been generated in hostility to a man she did not know, with no other suggestion of any possible reason why she might concoct a story of such details and pursue it to such an extent.

22. The magistrate sentenced the applicant to imprisonment for a period of two years consisting of a non-parole period of twelve months and an additional term of twelve months.

23. The applicant appealed the convictions to the District Court. In quashing the convictions, Armitage DCJ stated that:

One really is therefore faced with a situation where two apparently credible people make opposite allegations against each other. The appellant is firm in his denial that he even touched the complainant inappropriately. The complainant is equally firm that he did, and that the touching occurred not only on her thigh but on her breast and on her vagina.

What strikes me as peculiar is that at the car park..the complainant made no attempt to run from the car, to get out, to attract attention or in any way to alert others to her plight…It is impossible to know exactly what occurred, but all one can say about this is that the complainant’s own evidence is that she did not get out of the car because she was ‘confused’ and ‘wasn’t exactly sure because the way he was touching me I thought it was a friendly touch.’

24. Despite quashing the conviction, Armitage DCJ had these words for the applicant:

You placed yourself in a situation that you should never have been in. I do not know exactly what occurred, although I suspect that you may have touched the complainant in some way which caused her to form a belief that you were perhaps about to do something more drastic. One way or the other you placed yourself in a situation where these allegations occurred. I have not found positively that you told the complete truth in relation to this incident and I do not know one way or the other whether you did.’

25. The question for the Tribunal is this: in such a case where allegations of indecent assault have been made and accepted by the Local Court at hearing but subsequently overturned by the District Court, what weight, if any, should the Tribunal give to the allegations in its determination as to whether the applicant poses a risk to the safety of children?

26. There are three possibilities. The Tribunal may be satisfied that such an allegation against an applicant is established. Alternatively, the Tribunal may be affirmatively satisfied that the relevant incident did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident, or course of conduct, means that the existence of a risk has not been disproven:  Children’s Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].

27. In a situation where the magistrate found the complainant’s evidence credible but Armitage DCJ had problems with aspects of her evidence, we would have been assisted by having the complainant give evidence before us. The complainant was not, however, called as a witness in these proceedings.

28. We are further troubled by the fact that the Local Court hearing took place despite the applicant’s problems in understanding the proceedings – a concern that was apparently shared by the magistrate who interrupted the applicant’s evidence to raise it. In our opinion, this makes any reliance on the Local Court transcript in the matter problematic.

29. In light of these two concerns, we are unable to make a positive finding that the applicant indecently assaulted the complainant as alleged.

30. On the evidence before us and in the absence of evidence from the complainant, nor can we be satisfied, on the balance of probabilities, that the alleged conduct occurred. In making this finding, we have given weight to the fact that the applicant’s conviction in the Local Court was quashed in light of the Armitage DCJ’s concerns about aspects of the complainant’s evidence, which cast doubt on her credibility. We have taken into account the evidence given by the applicant in these proceedings, who we found to be a candid and credible witness. We have given weight to the fact that in a career as a driving instructor in Australia spanning over a decade, no complaints of inappropriate behaviour were ever made against the applicant either preceding or subsequent to the allegations made by the complainant. We have also given weight to the impressive character evidence provided in support of the applicant at these proceedings, in particular the oral evidence of a former female driving student of the applicant.

What consideration do we give to allegations that the applicant engaged in domestic violence against his former wife?

31. On 20 May 2008, the applicant’s former wife complained to police that:

1. on several occasions, the first being in December 2006, the applicant had threatened her by saying ‘There is a knife in the garage and I know where to put it over your neck’; and

2. her father had told her that the applicant had said that ‘for between 20 and 20 thousand dollars there is a group in Sydney that will go and shoot someone.’

32. It is not in dispute that the applicant and his former wife separated in May 2008 and that an interim apprehended violence order was issued against the applicant in June 2008 following these allegations.

33. When the application for a final apprehended violence order came before the Local Court in August 2008, however, it was dismissed.

34. Although there are no court documents before us giving reasons for the dismissal, in her affidavit in the 2012 custody proceedings before the Family Court, the applicant’s former wife stated that:

I obtained an Interim AVO at the Local Court…on 11 June 2008, but such applications was then dismissed by the court when I indicated that the father was no longer living with me and I was not being threatened by him, as he was living away.

35. In evidence before this Tribunal, the applicant denied the allegations that he had threatened his former wife, saying that the allegations were not true and that his former wife had lied. He denied raising his voice to his wife during their marriage, stating instead that while he has always been quiet, she ‘was always quarrelling with me’ and would always threaten him by saying, ‘I will send you back to your country.’

36. In his oral evidence to the Tribunal, the applicant expressed the view that his former wife had made the allegations to try to stop him being granted permanent residence in Australia. In support of this contention are copies of letters by the applicant’s former wife to the Department of Immigration asking that the applicant not be granted permanent residence. It is the applicant’s view that once his former wife discovered he had been granted permanent residence in early July 2008, there had been no point in pursuing the application for an apprehended violence order in August 2008, when the matter had been listed for hearing.

37. The Local Court’s dismissal of the application for the apprehended violence order casts doubt, we find, on the veracity of the allegations against the applicant.

38. The applicant’s former wife was not called as a witness in these proceedings and so was not available to be questioned on the allegations. Without any evidence from the former wife, we are unable to make a positive finding that the threatening behaviour she alleged the applicant displayed actually occurred.

39. In light of the lack of evidence by the former wife in these proceedings, the fact that the allegations occurred in the middle of an acrimonious custody dispute and that the application for an apprehended violence order was dismissed by the Local Court, we find that the threatening behaviour alleged did not take place. On this basis, we give it no weight.

What consideration do we give to allegations that the applicant is unable to control his alcohol intake?

40. In her affidavit prepared for the 2012 custody proceedings in the Family Court, the applicant’s former wife stated that following the couple’s marriage and preceding their separation, the applicant would consume whisky on a daily basis and become intoxicated.

41. The pre-sentence report prepared for the applicant in 2010 after his conviction in the Local Court (but before his successful conviction appeal in the District Court), states that the applicant:

disclosed that he currently consumes a small amount of alcohol , two- three drinks, at night, at home, approximately three times per week. He stated that he consumes alcohol when frustrated and to assist him with sleep. Enquiries with his brother revealed that he has noted a recent increase in [DLF’s] alcohol use.

42. In evidence before this Tribunal the applicant denied drinking alcohol when he was living with his former wife and denies drinking now. He told the Tribunal that he ‘never used to drink before she wanted to send me back to my country’, that he had only started drinking after the indecent assault charges had been laid against him and that he had not had an alcoholic drink for more than six months.

43. We accept the oral evidence by the applicant, which was not disputed, that he has been breathalysed whilst driving on many occasions and has never returned a positive result. This, we find, supports the applicant’s evidence that he does not have a problem with his alcohol intake.

44. We also accept the report by the psychologist, Mr D’Silva, who has been treating the applicant since 2018 and who reports that the applicant ‘has not been consuming alcohol.’ In oral evidence to the Tribunal, Mr D’Silva confirmed that he and the applicant had discussed the applicant’s past use of alcohol and expressed the view that when stressed, there had been times when the applicant has drunk more than he has wanted to. Mr D’Silva told the Tribunal that he was confident the applicant was doing well in relation to his alcohol intake and that he has discussed relapse strategies with the applicant should they be required.

45. On the evidence before us, we are satisfied that for a period of time between 2008 and 2010, the applicant’s alcohol intake was elevated but that this is no longer the case. We are satisfied that he has never returned a positive breath test and that in consultation with his psychologist has developed strategies to avoid a relapse should this be required. On this basis, we give little weight to the applicant’s alcohol consumption in our consideration as to whether he poses a risk to the safety of children.

What consideration do we give to the 2012 Family Law Court orders that the applicant have no contact with his son?

46. In 2012, final orders were made in the Family Court that the applicant’s then eight-year-old son was to live with his mother, that the mother would have sole parental responsibility for the child and the applicant would have no time with his son but would be permitted to send gifts, cards and letters to the child.

47. On the evidence before us, we accept that the applicant had been spending time with his son prior to being charged with indecent assault but that following his conviction in the Local Court, orders allowing for him to spend time with his son and stepdaughter had been suspended.

48. In the 2012 Family Court orders that the applicant have no time with his son, Collier J accepted:

1. while a significant factor in the case had been DLF’s conviction and subsequent dismissal on appeal of charges of indecent assault against a minor female driving student of his, the real significance of the criminal proceedings were that, as a result of DLF being criminally charged, his time with his son and stepdaughter had been suspended, meaning that by 2012, DLF had spent no time with his son for a period of over two years;.

2. According to expert evidence provided at hearing, DLF’s former wife had tried to extinguish his relationship with his son, who would be affected if attempts to reinstitute the father-son relationship failed, which was a real possibility given the mother’s attitude that her son should have no time with his father.

49. In relation to the applicant’s evidence, Collier J made the following remarks:

The father I found difficult to understand. There were clearly existing language difficulties, with English clearly a second language for the father. There were occasions where it seemed the father did not understand the question put to him because he did not understand the words employed... However, there were other occasions when I formed the view that, notwithstanding the language being used, he chose not to answer the question as put to him. At times he answered in a totally non-responsive way. Overall I found his evidence less than helpful….Whilst again making every possible allowance for the father being unrepresented in the hearing before me, I remain concerned that he played a very limited part in the proceedings, especially in his cross-examination of witnesses.

50. Collier J also found that:

1. DLF’s former wife was anxious to exclude him from their son’s future life, not only because she believed this was best for her son but also to prove she was right in the forensic contest between the parents.

2. there had been family violence when DLF had consumed alcohol, although Collier J was unable to particularise the violence that had occurred and could not be satisfied that any violence was to the extent alleged by the mother.

3. although the mother’s care of the son would be detrimentally undermined by the son having to see DLF, it could not be said that ‘the mother is guiltless or blameless in all that has occurred.’

51. We have no transcript of the former wife’s evidence at the Family Court proceedings nor was she made available to give evidence in these proceedings.

52. It is accepted that the applicant did not have access to an interpreter during the Family Court proceedings and that he did not have any legal representation. Indeed Collier J noted that, despite receiving some legal assistance in the preparation of his trial documents, DLF had not been represented since 2010.

53. We accept that the applicant has now lodged an application to review these Family Court orders made in 2012 and accept the applicant’s experience of these proceedings namely that:

I was not able to afford any representation at the hearing before the Family Court and did not have any interpreter. I did not understand the court procedures and much of what was being said, I did not know how to cross-examine anyone. I brought the proceedings so I could see my son as his father. I feel that I lost my case because I did not have the legal expertise to properly put my case.

54. It is not disputed that the applicant is now seeking to have the 2012 Family Court orders overturned with a view to having contact with his now 14-year-old son. We accept his evidence he had earlier lacked guidance as to how the orders might be overturned and given that this son is now older is hoping that the son’s views may assist his case to have contact with him. On the evidence before us, we accept that the applicant has sought family dispute resolution to progress the matter but that his former wife failed to attend the scheduled appointment.

55. For the following reasons, we give little weight to Collier J’s findings that the applicant had been violent towards his former wife:

1. there is no transcript of the evidence given by witnesses at the 2012 Family Court proceedings;

2. the witnesses to the Family Court proceedings did not give evidence at these proceedings and so could not have their evidence tested or their credibility assessed;

3. Collier J’s own concession that DLF’s former wife was prone to exaggeration and that she did not find aspects of her evidence credible.

56. In making these findings, we have been guided by Children’s Guardian v BLF [2016] NSWSC 1206 where Fagan J commented at [29] –[31]:

In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the victim and other witnesses cross-examined (which was not going to be possible because the Children’s Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none).

If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the victim’s refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.

It would add nothing to the plaintiff’s case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.

57. On this basis, and in light of the evidence before us that the poor communication between the applicant and his former wife was determinative of the decision that the applicant not be given time with his son, we give little weight to the 2012 Family Court orders in our assessment of whether the applicant poses a current risk to the safety of children,

Consideration of the s30(1) matters

58. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a))

59. The matters that led to both the interim bar and the subsequent refusal of the applicant’s working with children check clearance are the allegations that in 2009 the applicant indecently assaulted a seventeen-year-old driving student. These are serious allegations in that they allege sexual misconduct of a minor while under the applicant’s supervision as her driving instructor. For the reasons set out above, we have not been able to make a positive finding that the conducted occurred as alleged and, on the balance of probabilities, have found that it did not occur.

60. In refusing to grant the applicant a working with children check clearance, the Children’s Guardian took into account allegations of family violence made by the applicant’s former wife. Although these allegations are serious, for the reasons set out above, we find that conduct alleged to have take place between 2006 and 2008 did not occur.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

61. The allegations against the applicant by the driving student were made in 2009. The allegations of family violence made by the applicant’s former wife were made in 2008 in relation to alleged conduct between 2006 and 2008.

62. In 2012, final court orders were made against the applicant stating that he was to have no contact with his son. He has since lodged an application to have those orders overturned.

63. Since the 2009 allegations of indecent assault, there have been no complaints made against the applicant, who remained working as a driving instructor until 2017 when an interim bar was placed on him. Since 2009, he had not come to the attention of the authorities and has provided references attesting to his good character.

64. He is currently a carer for his brother who had substantial health issues.

The age of the person at the time the matters occurred (s30(1)(c))

65. The applicant was 47 years old when the allegations of indecent assault were made against him. He was 46 years old at the time the allegations of domestic violence were made against him by his former wife.

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 (s30(1)(d))

66. At the time she made the allegations, the driving student was seventeen years old and under the direction and control of the applicant who was her driving instructor.

67. At the time the applicant’s former partner made the allegations of domestic violence against him, she was 31 years old.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

68. The applicant was 30 years older than his student and 13 years older than his then wife.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

69. According to NSW Police Information, the student was seventeen years old at the time of the alleged conduct. It is unclear whether the applicant could reasonably have known the driving student was seventeen years old and so a child.

70. The applicant’s wife was not a child at the time the allegations were made.

The person's present age (s30(1)(g))

71. The applicant is currently 58 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

72. The applicant has no criminal record nor are there any entries for the applicant in the NSW Police Force ‘COPS’ database that refer to the applicant in the context of child abuse or sexual offences that did not result in charges.

73. In the period spanning 2005 and 2016, the applicant had four traffic offences (disobey traffic lights, drive contrary to stop sign, drive using hand-held mobile, exceed speed limit by not more than 10km/h in a school zone). He received a fine for each of these offences.

74. A pre-sentence report prepared in 2010 is contained on file assessed the applicant as being the moderate to low risk category of offending. Given that this report was prepared prior to the District Court quashing the applicant’s conviction for assault with an act of indecency, we give little weight to its findings.

75. The Department of Family and Community Services have no information on DLF.

76. We accept the applicant’s evidence, as corroborated by the founder of the club, that for many years, he has been a member of a community sporting and social club and has assisted with many of the activities run by the club, including the care and supervision of young children, and that no-one has ever made a complaint about his behaviour towards the children. We accept the applicant’s evidence that since the refusal of his working with children check clearance, he has withdrawn from all activities within the club that required him to have the care and supervision of children.

77. Contained on file are a series of references from former driving students attesting to the applicant’s good character,

78. Also on file is a reference from a priest and marriage celebrant who had known the applicant and his family for over 30 years. According to the priest:

Over the years [DLF] has provided his driving instructor services to many, both males and females, including few of my friends and families. [DLF] is actively involved in the community and religious activities over 30 years. [DLF] is a positive role model who is well-liked and respected by the community members.

To the best of my recollection I never ever came to know of any adverse matters. I was shocked and in disbelief when [DLF] informed me that he was charged with an offence of indecent assault in 2009 and these charges were quashed in 2010…In my sincere opinion, I do not believe that [DLF] would engage in such an act of indecent assault as I have always found him safe with children and young people in the community.

79. The founder of the sporting club describes the applicant as ‘dutiful, hardworking and faithful’ and as a ‘man of integrity and good standing’ who has always treated younger members of the community with respect. He gave oral evidence before the Tribunal, confirming that he met the applicant in 2006 and that he joined the sporting club where he was part of the organising team, primarily to assist with events for adults but also to assist on family day events. He has observed the applicant preparing lunch for the children on family day activities and has witnessed no issues with him being around children. Since the applicant’s involvement with the club in 2006, there have been no complaints made against the applicant.

80. A former driving student of the applicant – who is also a Justice of the Peace – gave oral evidence to the Tribunal. She told the Tribunal that the applicant had been recommended to her father by a friend and that she had more than 30 lessons with the applicant which had taken place two or three times a week. She told the Tribunal that the applicant had never touched her when driving. She recommended him to a friend who she understood to have been pleased with his services. Within their cultural community, which is small, the former driving student described the applicant as well-respected.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

81. We accept the applicant’s evidence that he is currently his brother’s carer but that, depending on his brother’s health, would like to return to working as driving instructor.

82. On the evidence before us, we are satisfied that there is little likelihood of any inappropriate behaviour by the applicant towards anyone, including a driving student, be they under or over 18 years of age. In a long career as a driving instructor, only one complaint has been made about the applicant, which resulted in the charges of indecent assault. For the reasons set out above, we are unable to make a positive finding that this occurred and have instead found, on the balance of probabilities that the alleged conduct did not occur.

83. We accept that evidence from other driving students of the applicant that that in his capacity as a driving instructor, the applicant has always been respectful. We also accept that in his years of work in his local sporting club, there have never been any complaints about his behaviour.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(il)

84. The applicant is the subject of Family Court Orders, which prevent the applicant from having any contact with his now fourteen-year-old son.

Information given by the applicant in, or in relation to, the application (s30(1)(j))

85. Statutory declarations from the parents of driving students taught by the applicant attest to their trust in the applicant as a driving instructor, despite their awareness of the allegations made against him in 2009. Further statutory declarations describe the applicant’s active role in organising religious and cultural rituals within his local community. We give some weight to this evidence.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)

86. No further information has been provided by the applicant.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

87. No further information has been provided by the applicant.

Conclusion on section 30(1) matters

88. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

89. For the reasons set out above, we accept the applicant has had a long career as a driving instructor which has been complaint-free apart from the allegation of indecent assault for which he was convicted at the Local Court before the conviction was overturned at the District Court.

88. For the reasons set out above, we cannot make a positive finding that the allegations made by the driving student were true and instead have found that, on the balance of probabilities, the conduct alleged did not occur.

89. This evidence includes orders made in 2012 in the Family Court that the applicant be prohibited from spending any time with his son. For the reasons set out above, we give little weight to these orders and to the findings of Collier J in our determination as to whether the applicant poses a current risk to the safety of children.

90. On the evidence before us, we are satisfied that between 2008 and 2010, which was a period of great stress for him, the applicant had a problem with his alcohol intake. In light of his own evidence and given that the applicant has never tested positive to a breathalyser despite spending many hours on the road as a driving instructor, we are not satisfied that his alcohol consumption affected his safety on the road nor that of his students. Given that we are not satisfied that the applicant was ever violent towards his former wife, we cannot find that his alcohol intake at the time ever put at risk the applicant’s former wife or anyone with whom they were in a domestic relationship. Having heard from the applicant’s psychologist, we are satisfied that excessive alcohol consumption is no longer a problem for the applicant and that should any such issue arise, he now has strategies to avoid any relapse.

91. Having heard directly from the applicant, and having been assisted by the interpreter in these proceedings, we found the applicant to be a quietly spoken, reserved man who was an impressive witness.

92. We are satisfied that the applicant is capable of behaving protectively and accept that it is his practice not to touch his driving students at all, except if, to avoid an emergency, he needs to take hold of the steering wheel and in doing so may risk accidentally touching a student’s hand. We give weight to the references before the Tribunal, and in particular to the oral evidence of his former driving student and the founder of the sporting club where the applicant has volunteered his time, that he is well-regarded within the community where he is also trusted and respected.

93. On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children.

Section 30(1A) considerations

96. It is only if the Tribunal concludes that the applicant does not pose a risk to the safety of children that it is then required to go on to consider the “reasonable person” test and the “public interest” test in s 30(1A) of the Act. CHB v Children’s Guardian [2016] NSWCATAD 214 at [107].

97. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?

98. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order

99. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the 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.

100. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know that:

1. in his many years as a driving instructor, the applicant has had one complaint made against him which resulted in his initial conviction being quashed on appeal to the District Court;

2. whilst the applicant had a period of time between 2008 and 2010 when he consumed alcohol to some excess, he and his psychologist have confirmed that this is no longer the case;

3. whilst his wife alleged that the applicant had threatened her following their separation, her allegations were made in the context of an acrimonious custody dispute and at a time when the former wife had taken steps to ensure that the applicant was not granted permanent residency in Australia;

4. despite the allegations by his former wife, the Local Court dismissed an application for an apprehended violence order against the applicant and no charges were ever laid in relation to the allegations;

5. former female driving students have attested to the applicant being a polite, trustworthy and skilled driving instructor;

6. the founder of the sporting club where the applicant has long been a member praised his assistance and confirmed that in the applicant’s association with the club of over a decade, there had never been a complaint about his behaviour;

7. in his oral evidence (which he gave through an interpreter), the Tribunal found the applicant to be an impressive and credible witness.

101. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

Is it in the public interest to make the orders sought by the applicant?

102. Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. (CHB v Children’s Guardian [2016] NSWCATAD 214)

103. The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

104. The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant (see Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262)

105. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25]  In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

106. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. We are satisfied that he has expertise as a driving instructor, has been described by former female driving students as trustworthy in this role and is guided by a desire to ensure that by becoming safe drivers, his students will not put others at risk. We are satisfied that his voluntary work at his community’s sporting club is well regarded and that such a club provides an important social and sporting venue for members of his community.

Decision

107. For the reasons set out above, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that 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 applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

1. The decision of the respondent dated 15 March 2018 to cancel the applicant’s working with children check clearance is set aside.

2. In substitution for this decision the following decision is made: the applicant is to be granted 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 New South Wales Civil and Administrative Tribunal.

Registrar

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: 07 June 2019