DMK v Children's Guardian

[2018] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMK v Children’s Guardian [2018] NSWCATAD 236
Hearing dates:	19 September 2018
Date of orders:	10 October 2018
Decision date:	10 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member E Hayes, General Member
Decision:	(1) Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L. (2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – Working with children – Application for enabling order – Where applicant indecently assaulted an adult 16 years ago – Where applicant charged with other assault and indecency offences 14 years ago before charges were withdrawn – Where workplace investigation found allegations sustained – Whether 2018 Amendments applied - Whether evidence of charges and alleged assault should be admitted and, if so, what weight should be attributed to it – Whether applicant poses a real and substantial risk to the safety of children - Where applicant had expressed genuine remorse for the indecent assault – Where applicant had become a community leader in a stable marriage
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children's Guardian [2014] NSWCATAD 161 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BRL [2016] NSWSC 1206 CFJ v Children’s Guardian [2016] NSWCATAD 62 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	DMK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent)   Solicitors: Applicant in person Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00193312
Publication restriction:	A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The applicant applied for an order enabling him to work with children. He was barred from working with children, without an enabling order, because he committed the offence of indecent assault against an adult sixteen years ago.

2. We are satisfied that the applicant does not pose a risk to the safety of children. He has expressed genuine remorse for the offence, which was committed whilst he was heavily intoxicated. He has reformed his drinking habits. He committed the offence when a young man and is now a mature adult who has changed significantly.

3. For these reasons, we decided at the hearing to make an order that he be granted a working with children check clearance. These are the reasons for that decision.

Background

4. The applicant began his career, as a young adult, as a police officer. He shared a home with other police officers.

5. The applicant was subject to a number of traumatic events in the course of his work and did not receive any counselling. The culture at the time was for police officers to go out together after work and to consume large amounts of alcohol to cope with traumatic events.

6. In late 2002, when the applicant was twenty-two years old, one of his friends and house mates, a female police officer (“the victim”), picked him up after a night he had been out drinking. He was very drunk at the time. The victim was twenty-five years old.

7. After they got home, the applicant groped the victim by grabbing her on the breast and trying to kiss her. The victim tried to push him away and said “no.” The applicant then grabbed her and pinned her down on the couch. He ripped the victim’s bra off and started to fondle her breasts. The victim continued to struggle and managed to push him off. The victim tried to run to her room, but the applicant chased her, caught up with her and pinned her to the floor. He then reached into her pants and placed his finger into her vagina. The victim was able to throw him off and ran to her room.

8. The following day, the applicant had no memory of the incident.

9. The applicant was charged with two counts of the offence of assault with an act of indecency and pleaded guilty.

10. Another female police officer complained that, in September 2004, the applicant had grabbed hold of one of her buttocks on two occasions and squeezed one of her buttocks on another occasion at an off duty social gathering. She made other allegations that he sexually harassed her, including by sending her inappropriate emails. In November 2004, the applicant was charged with one count of common assault and one count of assault with an act of indecency.

11. A workplace investigation into the 2004 allegations, in which the applicant had minimal if any participation, found in December 2004 that the allegations were sustained. The investigation report recommended that consideration be given to removing the applicant from the NSW Police.

12. In the pre-sentence report for the 2002 offences, prepared by the applicant’s probation and parole officer in January 2005, it was reported that the applicant did not act violently at home, that he did not regularly abuse alcohol, that his intimate relationships were of a mutually consensual nature and that he did not act aggressively towards his partner (the woman who was to become his wife).

13. The applicant was convicted and sentenced to a three-year good behaviour bond for the 2002 offences in March 2005.

14. On 17 November 2005, the applicant’s position as a police officer was terminated.

15. Shortly after this, the 2004 charges were withdrawn.

16. Since the applicant’s conviction, he has re-established himself and built a new life. He is now 38 years old, has been married for over eleven years and has two children. He holds a senior position in a business. He has a strong network of friends and family and is an active member of his community.

17. The applicant applied for a working with children check clearance on 6 April 2018, in order to coach his daughter’s sporting team. Whilst a parent of a child when volunteering in connection with the child’s team is exempt from the Child Protection (Working with Children) Act 2012 (NSW) (see Child Protection (Working with Children) Regulation 2013 (NSW), cl 20(1)(f)), his daughter’s sporting club had adopted a policy of requiring a coach to hold a working with children check clearance.

18. As a result of the offences the applicant committed, the Children’s Guardian was required to, and did, refuse the applicant a working with children check clearance, by notice dated 23 May 2018.

19. The applicant applied to the Tribunal for a review of that decision.

20. The Children’s Guardian neither consents to, nor opposes, the grant of an enabling order to the applicant.

Relevant law

21. Section 4 of the Child Protection (Working with Children) 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 this Act.”

22. The Children’s Guardian is not permitted to grant a working with children check clearance to a person convicted of an offence specified in Schedule 2 to the Child Protection (Working with Children) Act, if the offence was committed as an adult: Child Protection (Working with Children) Act, s 18(1)(a). The offence of assault with an act of indecency, under s 61L of the Crimes Act 1900 (NSW), is an offence specified in Schedule 2.

23. Having committed a Schedule 2 offence, the applicant is a “disqualified person” (Child Protection (Working with Children) Act, s 18(1)). However, 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 the Child Protection (Working with Children) Act in respect of an offence specified in the order (an enabling order): Child Protection (Working with Children) Act, s 28(1). If the Tribunal makes such an order, it may also order the Children’s Guardian to grant the person the subject of the order a clearance (Child Protection (Working with Children) Act, s 28(6)).

24. 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: Child Protection (Working with Children) Act, s 28(7).

25. When determining an application, under s 28(1) of the Child Protection (Working with Children) Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

“(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 criminal history and the conduct of the person since the matters occurred,

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

(i1)   any order of a court or tribunal that is in force in relation to the person,

(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.”

26. Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides:

“(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.”

27. The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [35]; BHA v Children's Guardian [2014] NSWCATAD 161 at [26].

2018 Amendments

28. Certain provisions of the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) commenced on 1 June 2018. These relevantly amended the Child Protection (Working with Children) Act as follows:

1. Section 5B was inserted into the Child Protection (Working with Children) Act. This provides: “A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.”

2. Section 30(1)(h), which previously required the Tribunal to consider “the seriousness of the person’s total criminal record” when determining an application, was amended so as to require the Tribunal to consider “the seriousness of the person’s criminal history”;

3. A definition of “criminal history” was inserted, making clear that the term includes “criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged” (Child Protection (Working with Children) Act, s 5C(b)).

29. Ms Douglas-Baker, for the Children’s Guardian, submitted that s 5B of the Child Protection (Working with Children) Act applied in these proceedings.

30. The amendments effected by the Child Protection (Working with Children) Amendment (Statutory Review) Act commenced before the applicant had filed his application for an enabling order in the Tribunal. We are satisfied that they apply for the purposes of these proceedings. No issue of retrospectivity arises.

31. The definition under s 5B of a “risk to the safety of children” draws upon the common law test which applied to the determination of risk under the Child Protection (Working with Children) Act and earlier child protection legislation before it was enacted. This test was whether the risk posed by the applicant is “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26]; CFJ v Children’s Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 at [40]-[44]. Ms Douglas-Baker accepted that the statutory and common law tests are very similar.

32. The definition in s 5B only applies where there is a reference to “a risk to the safety of children.” There is such a reference in s 28(7) of the Child Protection (Working with Children) Act which 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. This does not, in terms, state that the Tribunal may not grant an enabling order unless satisfied that the applicant does not pose a risk to the safety of children. Section 28(2) provides that the Tribunal may make an enabling order, without specifying any jurisdictional facts of which the Tribunal must be satisfied. Section 30 does not refer, explicitly, to any risk to the safety of children.

33. In CJT v Office of the Children’s Guardian [2016] NSWSC 738, Fullerton J observed that Young CJ’s remarks about the meaning of risk in Commission for Children and Young People v V [2002] NSWSC 949 at [42] have “been consistently applied in construing the concept of a ‘risk to the safety of children’ for the purposes of ss 27 and 28 of the Working with Children Act” (our emphasis).  In BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26] (a case concerning an application for an enabling order), Beech-Jones J referred to the meaning of “risk to the safety of children“ in s 28(7) of the Child Protection (Working with Children) Act and said that this was to be understood by reference to the comments of Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42]. His Honour also said that “the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children” (at [28]).

34. Accordingly, the purpose of the Tribunal’s assessment of whether the applicant poses a risk to the safety of children is to determine whether the applicant has displaced the presumption in s 28(7). This means that there is a relevant statutory “reference” to a “risk to the safety of children” and s 5B applies.

Does the applicant pose a risk to the safety of children?

35. In determining whether the applicant poses a risk to the safety of children, we have considered each of the s 30(1) factors in turn.

Seriousness of offence, age of offender and victim, time elapsed and conduct of person since (s 30(1)(a)-(g))

36. The seriousness of the offence of which the applicant was convicted is a factor against granting an enabling order (s 30(1)(a), (h)). So is the circumstance that the victim was female and not as physically strong as the applicant, thus enabling him to exercise physical power over her (see s 30(1)(d)). The circumstances that the victim and applicant were living together as house mates, and were good friends (s 30(1)(e)), tends against the grant of the order. This is because the commission of the offence involved a breach of trust.

37. There are also some factors which point in the other direction. The victim’s age (being an adult of 25, four years older than the applicant) and the amount of time which has elapsed since the offence, being sixteen years, are factors which support the grant of an enabling order (s 30(1)(b)-(e)). So too does the applicant’s conduct since that time (s 30(1)(b) and (h)), a matter to which we will return. Finally, the circumstances that the applicant was a young man at the time of the offence, and has since gained greatly in maturity, having reached his late thirties, favour the making of the enabling order (s 30(1)(c), (g)).

The seriousness of the person’s criminal history (s 30(1)(h))

38. A person’s criminal history includes criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged (Child Protection (Working with Children) Act, s 5C(1)(b)). We therefore need to consider the charges brought against the applicant in 2004, which were later withdrawn.

39. The applicant denied, when giving sworn evidence, that he had committed the alleged assaults. He said that the complaint had been vexatious. He suggested that the complainant invented the incidents of which she complained in order to get a transfer from the police station at which they were both working.

40. The 2004 allegations against the applicant were sustained in an internal police investigation. However, the applicant played little, if any, part in that investigation. We admitted the evidence of these allegations, and the workplace investigation report, subject to relevance.

41. The complainant has not given oral evidence and was not made available for cross examination. Ms Douglas-Baker informed the Tribunal that the Children’s Guardian had made no attempts to contact the complainant.

42. The circumstances are not unlike those in Children’s Guardian v BRL [2016] NSWSC 1206. In that case, BRL had been charged with sexual assault against a child in 1998. At the trial, the child refused to continue with her evidence. The trial judge discharged the jury without taking a verdict. In 2016, the Tribunal reviewed a decision of the Children’s Guardian to refuse BRL a working with children check clearance. It refused to admit four witness statements obtained for the criminal trial for the purpose of proving the truth of the allegations contained within the statements. Fagan J said of the allegations at [45]:

“In the present case it is difficult to see how the Tribunal could have attributed any weight to these allegations if they had been received without testing by cross-examination in the absence of explanation as to why these serious matters had not been pressed by the complainant in 1999 and in the absence of any explanation of why she was not willing to come forward in 2015 or 2016.”

43. Fagan J also commented upon the application of the requirements of natural justice, or procedural fairness, in this context (at [28]-[30]):

“Being at liberty not to apply the rules of evidence by virtue of s 38(2) [of the Civil and Administrative Tribunal Act 2013] the Tribunal had the power by force of the concluding words of that subsection to consider the denial of natural justice which would result if it should act upon statements of this kind in proof of such serious allegations without the defendant having an opportunity to test them.

[29] 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 complainant 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).

[30] 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 complainant’s refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.

[31] 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.”

44. We consider that the evidence of the alleged sexual harassment is capable of having only very minimal relevance to the question of whether the applicant poses a risk to children. Section 55(1) of the Evidence Act 1995 (NSW) does not bind the Tribunal, but provides a useful way of approaching relevance. It provides: “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

45. Even if we were to accept that there is a real risk that the alleged events occurred, the evidence is of very low probative value in determining whether the applicant poses a risk to children now. Whilst we accept that sexual harassment of any kind may have a significant effect on the victim, it is also important to acknowledge that this alleged offence, unlike the offence to which the applicant pleaded guilty, is at the lower end of the scale of seriousness. It is also an alleged offence against an adult. If we found that the applicant had squeezed or grabbed hold of the complainant’s buttocks as alleged, that would not necessarily persuade us that the applicant posed a risk to the safety of children then or poses such a risk now. We note that the evidence of the applicant’s conduct since that time, discussed below, shows that he has changed significantly since early adulthood.

46. We are not satisfied that there is a real risk that the alleged events occurred. In the absence of an opportunity to test the complainant’s evidence, and in circumstances where the applicant has provided the Tribunal with a sworn denial of the allegations, the evidence has “negligible weight” to use Fagan J’s words in BRL.

47. The other matters on the applicant’s criminal history are convictions for negligent driving and failing to give particulars to the owner of damaged property in relation to events which occurred in 2005. The applicant was fined $200 in respect of the first matter and $300 in respect of the second matter. The offence related to misjudging the height restriction in a carpark and colliding with a sign on the carpark ceiling when entering the carpark in his employer’s van. We do not regard these as serious criminal matters.

Applicant’s conduct since the 2002 offence and since the alleged offence in 2004

48. Since 2004, the applicant’s conduct has been such as to indicate that he has matured significantly and that the risk of him harming children is extremely low.

49. He is married and is in a stable relationship with two children. He has contributed to the community in a wide variety of ways. As he says in his statement, he is heavily involved in all of his children’s activities and in the local community. He has volunteered in various capacities at his children’s child care and schools since 2008. He has also volunteered and had leadership roles in community organisations and has made important contributions to a charitable cause. He has achieved a very senior position in business. There has never been any complaint in relation to his contact with children, even though he has had a considerable amount of contact with children. He is, in the words of his wife, a “completely different person” from the immature person who committed the offences sixteen years ago.

Likelihood of any repetition by the applicant of the offence (s 30(1)(i))

50. We are satisfied that there is an extremely low likelihood of any repetition by the applicant of the offence.

51. The offence was committed when the applicant was a young adult, in a very different social and familial context. He was single and describes himself at the time as engaging in one night sexual encounters. The applicant was regularly abusing alcohol, partly as a way of dealing with the trauma of his job as a police officer. He was part of a police culture where this was the norm. His social supports encouraged him to drink as a way of relieving stress. He has since undergone alcohol counselling and controlled his drinking. He is no longer exposed to traumatic events as part of his work.

52. In addition, the applicant is now in a long, stable marriage. His wife has provided a statement in support of his application for an enabling order. He has responsibilities for his two children which he takes seriously. He is no longer part of the drinking culture which was a key element in the offending. He has the support of many friends who know about the offence.

53. The applicant pleaded guilty to the offence, notwithstanding that he has no memory of the incident. This is a clear indication that he accepts responsibility for it and has done so for a very long time. That makes any recidivism unlikely. He describes the offence “as singly the biggest regret of [his] life” and states that his actions in committing the offence “are the most disappointing of any that I have committed.” He also states that he would “be horrified” if his wife or daughter were subjected to the experience he inflicted on his house mate. We are satisfied that the applicant genuinely regrets committing the offence and that he is determined never to do anything similar again.

54. A psychologist who provided a pre-sentence report for the applicant in January 2005 assessed him as falling in the low to moderate category on the Static-99, a scale used to estimate actuarial risk of sexual or violent recidivism. We note that this report was prepared shortly after, or around, the time when the applicant was engaging in excessive drinking. The psychologist said that the applicant was able to describe a number of appropriate strategies he used, since the offence, when he experienced feelings of stress and anxiety. These included discussing his emotions with his fiancé at the time (now his wife) and socialising with friends outside the police force. She also commented that the applicant was willing to accept responsibility for his sexual assault upon the victim.

55. We are satisfied that, since 2005, the applicant has maintained and developed a number of effective strategies for managing stress. These include exercising, talking to his wife and “catching up with” his “mates” for coffee on a regular basis.

56. The applicant has also dramatically changed his drinking habits. We accept his evidence that he now drinks responsibly and tries to act as a model for his children in this respect.

57. When the applicant was sentenced in 2005, the sentencing judge said that, in deciding to hand down a non-custodial sentence, he was influenced by “the prisoner’s previous good character, his early pleas, the minimal risk of his re-offending, his lack of denials of the allegations, his actions in avoiding the necessity for the victim to face the ordeal of a court, his remorse and contrition, his insight into his misconduct and the excellent prospects for rehabilitation.” The remarks of his Honour about minimal risk of re-offending and excellent prospects for rehabilitation have been borne out by the applicant’s conduct since 2005.

The impact on children of any repetition of the applicant’s offending (s 30(1)(i))

58. If the applicant were to commit the offence again, there may be no impact upon children, if children were not present when the offence occurred. However, if children were present, or if his own children later found out about it, the impact upon them could be significant.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

59. The applicant has provided the Tribunal with a statement, which is referred to above. The applicant has also provided a large number of references from people who know him and know about his offence. Parts of the evidence the applicant gave in the statement are referred to elsewhere in these reasons.

60. The applicant’s wife states in a statutory declaration that she appreciates the expectations and concerns of the community as a whole in relation to both sexual offences against women and the importance of the working with children check. However, she supports the comments the applicant makes that drinking to relieve stress was, in the early 2000s, not only accepted but also encouraged in the police force. She says that the applicant was very open with her, her family and friends about the offences, when he was charged. She also states that he was absolutely devastated by the charges. She confirms that he sought the help of a psychologist and availed himself of other support services.

61. The applicant’s wife describes how the applicant turned not only his life, but their lives, around. He worked his way up from a starting position in a company to a very senior position as National Business Development Manager for a major international company. The applicant’s wife describes the applicant as “an amazing father.” She states:

“His intuition as to what our children need, at any given time, is enviable. He is attentive and loving and the needs and welfare of our children, emotional, physical and spiritual, are at the fore of his motivations. To [the applicant], his family is everything and he shows this to us every day.”

62. The applicant’s wife also provides details of the applicant’s support of his children’s sporting activities and his volunteering activities in the local community in various areas. These are many, and include coaching his children’s sporting teams.

63. We accept the evidence of the applicant’s wife, which was not challenged.

64. The applicant has provided statutory declarations and affidavits in support of his application made by a police officer who met him in 2004, a close friend who has known him since 1999, two different parents of different friends of his children who have known him since 2011, a family friend who has known him since 2015, a friend who has known him since 2006, a parent of a friend of his children who has known him since 2013 and a friend who has known him and his family for about eighteen years. The evidence in these statutory declarations and affidavits include that

1. the applicant is an “amazing father”;

2. he is a “glowing positive influence” for his children;

3. he “has gone from a relatively inexperienced adult who made a serious but isolated mistake to a respected husband, worker and parent”;

4. he “made a significant mistake many years ago” but he is now “a mature adult who is committed to his children and our local community”;

5. the writer has left her children with the applicant many times;

6. (a different) writer has never “had any concerns” about the applicant interacting with her son, and that she would have no hesitation in confirming that she is comfortable in leaving her child in the applicant’s care;

7. the applicant is an “excellent father”;

8. (a different) writer would never hesitate to leave her two children in the applicant’s care;

9. the applicant is “an outstanding human being with a heart of gold”;

10. the (again different) writer has “no concerns about leaving any of my four children in [the applicant’s] care”;

11. a writer who knew the applicant and victim at the time of the offence was prepared to give evidence as to the applicant’s character if the criminal matter had proceeded to a hearing.

65. These character references provide evidence of the applicant’s standing in the community, the high regard in which he is held by many, the trust others are prepared to place in him, including in relation to their children, and the positive contributions he has made to others’ lives.

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

66. Ms Douglas-Baker submitted that the Tribunal should have regard to the 2004 allegations against the applicant, which the workplace investigator found to be sustained. She acknowledged that the Tribunal would need to treat such allegations “carefully” given that they were not tested.

67. For the reasons given above, we do not consider that we should give the material concerning the 2004 allegations any significant weight.

68. The Children’s Guardian submitted that there were some inconsistencies which may indicate a lack of candour on the part of the applicant, and this may be relevant to whether he poses a risk to the safety of children. The Children’s Guardian relies on what it describes as the applicant’s “non-disclosure” of the workplace investigation in his response to a letter sent to him by the Crown Solicitor after these proceedings had commenced. Ms Douglas-Baker submits that it is open to the Tribunal to conclude that he was attempting to obfuscate or to conceal the workplace investigation’s findings about the 2004 allegations as a reason for his termination.

69. The purpose of the Crown Solicitor’s letter to the applicant was to ascertain information so that the Children’s Guardian could make inquiries of various agencies and entities (such as the applicant’s current and former employers), to help determine whether he poses a risk to children. The letter stated that “it is the usual process to request from applicants, specific information so that various follow-up investigations can be conducted.” The Crown Solicitor made it clear in the letter that the applicant was not required to respond, but that the Children’s Guardian might seek to use this letter and the reply, or lack of reply, as evidence in the proceedings.

70. The letter from the Crown Solicitor to the applicant read, relevantly, as follows:

“I respectfully request that you provide me with the following information:

Provide details of your current and past employment for the last 10 years including the position, duration and the name and contact details of the representative of the employer to whom a letter of enquiry may be sent.

Does your current and past employment involve direct contact with children? If yes, please provide details of how the employment involves direct contact with children. …

If you have ever been the subject of any complaints, disciplinary proceedings or risk assessments in the course of his [sic] current or previous employment, please provide details of the employment in which you were engaged at the time(s).

…

8. If you have been charged with any criminal offence (other than the 2002 disqualifying offence) anywhere in Australia or overseas, please provide details of that/those offence(s).”

71. The applicant replied, relevantly:

I decline to provide details of my employment history as I have never worked with children and I feel this is irrelevant to these proceedings.

Same as point 1.

No

…

8. Not applicable.

72. The applicant’s evidence was that the reason he said “no” to question 3 was that he answered that question in relation to his work history after leaving the Police.

73. The first question posed by the Crown Solicitor limits the details which are requested of the applicant’s employment history to the last ten years. A reasonable reading of the questions that follow, including questions 2 and 3, is that they also, implicitly, refer to the applicant’s employment over the last ten years. The applicant’s employment with the Police was terminated more than ten years ago. Further, the applicant’s answer to question 3, “no,” may simply mean that he declines to provide the requested details. We do not accept the respondent’s submission that the applicant was trying to obfuscate or to conceal the workplace investigation in his response to question 3. We accept that the applicant’s evidence on this point was truthful.

74. The applicant’s answer to question 8 is potentially misleading, given that he was charged with criminal offences in 2004 and did not disclose this. His explanation, under cross examination, was that he answered the questions on the basis of what happened after he left the Police, and that he considered the 2004 allegations to be vexatious. As the charges were withdrawn by the Police, he did not “bring them up.” The applicant’s evidence at the hearing was generally very candid. He presented as honest and open. We do not consider that he was deliberately concealing the 2004 charges in his response to question 8, even though the question, on its terms, required him to disclose this. Even if, contrary to our view, he was obfuscating to some degree in this answer, we are not persuaded that this, of itself, indicates that he poses a risk to the safety of children.

Considerations which are not applicable (s 30(1)(f), (i1), (j1))

75. We were not informed that any information was obtained by the Children’s Guardian in accordance with s 36A of the Child Protection (Working with Children) Act, so s 30(1)(j1) is not applicable. There is no evidence of any order of a court or tribunal that is in force in relation to the applicant and the victim of the offence and the alleged victim were not children, so s 30(1)(f) and (i1) have no application.

Conclusion

76. Having regard to all of the factors set out above, the applicant has persuaded us that he does not pose a real or appreciable risk to the safety of children. We give particular weight to the following factors: the fact that the 2002 offence was committed against an adult; the applicant’s remorse; the amount of time since the offence; the applicant’s conduct since that time; the support he has from his family, his friends and the broader community; and the low risk of him reoffending.

Would a reasonable person allow their child to have unsupervised contact with the applicant? (s 30(1A)(a))

77. The Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the applicant while engaged in child-related work, where that contact was unsupervised (Child Protection (Working with Children) Act, s 30A(1)(a)). The Tribunal imputes to the “reasonable person” an acquaintance with of all the relevant facts before the Tribunal: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127].

78. As indicated above, a number of people have given sworn evidence to the effect that they leave their children with the applicant on an unsupervised basis and are happy to do so. These include people associated with the sporting organisations in which the applicant has volunteered. As Ms Douglas-Baker pointed out, this evidence is not determinative of what a reasonable person would or would not do. Nevertheless, in circumstances where the persons providing character references state that they are aware of the applicant’s offence, this evidence supports the conclusion that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant whilst engaged in child-related work. We are also satisfied, from our own assessment of the material before the Tribunal and from observing the applicant give oral evidence, that a reasonable person would leave his or her child in the applicant’s unsupervised care, whilst the applicant was coaching a sporting team or engaging in other child-related work.

Is it in the public interest to make the order? (s 30(1A)(b))

79. We consider that it is in the public interest to make an order enabling the applicant to work with children.

80. The applicant committed a sexual offence against an adult about sixteen years ago. He has served his sentence. He is no longer a risk to children, if he ever was. It is not in the public interest that the Child Protection (Working with Children) Act operate oppressively, where a person does not pose a risk to children, to preclude that person from working or volunteering with children.

81. The applicant wants a working with children check clearance so that he can continue to coach his children’s sporting teams. It is in the public interest that people such as the applicant can contribute to the community through activities such as coaching sport. This promotes healthy living and helps to create a sense of community. One character referee stated that the applicant was a community leader who positively influenced integral social events, and that it could only be the local community’s loss to have the applicant restricted from being in a position to provide leadership to the community. The references provided by the applicant generally indicate that he is a positive role model for the children he coaches. These references support our opinion, based upon the other material before us, that enabling the applicant to work with children is in the public interest.

Orders

82. For all of these reasons, we make the following orders:

1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L.

2. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.

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

Registrar

Decision last updated: 10 October 2018