Dnu v Children's Guardian - [2019] NSWCATAD 139

No judgment structure available for this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DNU v Children’s Guardian [2019] NSWCATAD 139
Hearing dates: 14 March 2019
Date of orders: 17 July 2019
Decision date: 17 July 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, 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 Act 2012 (NSW) in respect of the offence of assault with an act of indecency Crimes Act 1900 (NSW) s 61N (2)
(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 adult 14 years ago – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children- costs
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AYU v NSW Office of the Children’s Guardian NSWCATAD 69
BHA v Children’s Guardian [2014] NSWCATAD 161
BKE v Children’s Guardian [2015] NSWSC 523
Department of Justice v PMY [2012] VSCA 143
Secretary Department of Justice v LMB, Secretary
VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category: Principal judgment
Parties: CYO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C Simpson (Applicant)
I Fraser (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2018/00234879
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Summary

The applicant applied for an enabling order to allow him to work with children. He was barred from working with children without an enabling order because he was convicted of an offence of assault with an act of indecency. He received a 12 month good behaviour bond with supervision and was fined $1000.
We are satisfied that the applicant does not pose a risk to the safety of children as it has been nearly 15 years since the disqualifying offence which was not committed against a child, he has had no other criminal convictions since 2010, he has shown remorse for his actions, has engaged in prosocial activities and he is a respected member of his local Aboriginal community. We consider he is a low risk of reoffending.
For these reasons we have decided to make an order that he should be granted a working with children check clearance. Accordingly, we set out our reasons for that decision below.

Jurisdiction

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.”
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 61E of the Crimes Act 1900 (NSW), is an offence specified in Schedule 2.
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)).
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).
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,
(i)   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,
(j) 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.”

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.”

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].

Disqualifying offence

On 25 October 2005 the applicant was found guilty and convicted of the offence of assault with an act of indecency towards a person aged over 16 years contrary to s 61N of the Crimes Act 1900. He was given a s 9 bond to be of good behaviour for 12 months with supervision and fined $1000.
It is not known if the applicant gave evidence at the hearing in the Local Court as no transcript is available. A statement of the victim was available which was tendered in evidence at the Local Court. The victim, was 24 years old at the time. Her aunt was in a long term relationship with the applicant.
The disqualifying offence occurred on 24 September 2004. The victim had attended a party at her aunt’s house, where the applicant lived from time to time. The victim had been drinking although she said was not affected by alcohol. She went to have a sleep in a bedroom at the house. She was fully clothed. The victim woke up to find the applicant was standing beside the bed and his hand was on her left breast and he was gripping her nipple. The shirt she was wearing had been raised and her left breast had been pulled out of her bra. She describes the applicant as having “wobbled” her breast.
When the victim woke up and realised what was happening the applicant quickly left the room. The victim immediately reported what had happened to another person who was in the house at the time and shortly after that the victim told her father and another aunt and then called the Police.
The Police were unable to locate the applicant. It was not until 15 March 2005 that the applicant handed himself in to Police and he was charged with the disqualifying offence.

The applicant’s evidence

The applicant made a statutory declaration on 13 March 2019 and gave oral evidence and was cross-examined.
The applicant is an Aboriginal man and has lived most of his life in Northern New South Wales in the Aboriginal community where he grew up.
He had a difficult childhood and left school in Year 9. He has poor literacy. He has a poor driving record and numerous drink driving offences and offences of driving whilst disqualified. He has not had any driving offences since 2010 and is currently awaiting the outcome of his application to regain his licence. He was charged approximately 35 years ago with a break enter and steal offence however pursuant to the then s 556A of the Crimes Act 1900 no conviction was recorded.
He says his recollection of the disqualifying offence is poor. He was drinking and had also been smoking cannabis. He does not deny the offence and he says he is very ashamed by his conduct. His evidence is that he has greatly reduced the amount he now drinks although he acknowledged in his oral evidence that when he does drink he probably has around five or six schooners every couple of days.

Evidence of Dr Katie Seidler

The applicant relies on a report dated 12 November 2018 of Dr Katie Seidler, Clinical and Forensic Psychologist who has clinical and research interests in sexual offenders and the assessment of risk of re-offending. Dr Seidler also gave oral evidence and was cross-examined.
In brief, Dr Seidler’s evidence is that the applicant poses a low risk to the safety of children and young people and specifically a low risk of sexual offending with children. She says the applicant has a number of protective factors including a prosocial sexual identity, sexual interests and general prosocial nature which she says is demonstrated by his positive and productive involvement in his local community. These factors temper his risk of re-offending according to Dr Seidler. She says it is difficult to identify any risk factors related to his past sexual offending behaviour other than being substance affected coupled with unsophisticated reasoning relating to complex human interactions and concepts such as appreciating someone else’s emotional experience. Dr Seidler considers the disqualifying offence seems to have been a function of the applicant’s substance abuse and “unsophisticated sociocognitive reasoning” and concluded that it was an aberration.
Dr Seidler says in her opinion there is no convincing evidence that the applicant should not be granted a Working with Children Check although she does say he would benefit from supervision and guidance in the workplace or in any capacity that he engages with children and young people or vulnerable others.
Dr Seidler’s evidence was not contradicted by other expert opinion. Dr Seidler presented as a balanced and professional witness. We found her opinion to be well reasoned and persuasive.

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

The Tribunal must also consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is 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].
Set out below are our findings in relation to each of the s 30 (1) factors.

The seriousness of the offences and the period of time since those offences occurred (s 30(1)(a) and (b)

The applicant pleaded guilty to the disqualifying offence and he was placed on a bond for 12 months with supervision but no conviction was recorded. We accept that the penalty imposed reflects that the seriousness of the offences was at the lower end of the range for such offences. However overall we find that the objective seriousness of the offences is a factor that weighs against granting an enabling order (s 30 (1) (a).
We consider the length of time since the offences occurred weighs in favour of the applicant being granted an enabling order. The offences occurred nearly 15 years ago.

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant’s present age (s 30 (1) (d)-(g))

The applicant was 40 at the time the offences occurred and is now 54. The victim was 24. There was therefore a difference in age of 26 years. The victim was not a child. She was vulnerable by reason of the fact she was asleep at the time. The applicant was in a relationship with the victim’s aunt.

The seriousness of the applicant’s criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30 (1) (h-i)

The applicant has a criminal record which is serious. He has been convicted of a large number of driving offences which have involved drink driving and driving whilst disqualified. He has received custodial sentences for a number of these offences. Apart from the driving offences he also has one conviction in 1983 for break enter and steal and a conviction in 1991 for use firearm.
Since the disqualifying offence the applicant has been involved on a volunteer basis in various aboriginal community groups and has clearly made an effort to engage in pro-social activities in his local community. On his evidence he has been involved in raising a number of children in his extended family and there have been no issues or concerns raised in regard to his conduct with children on the material before us.
The applicant has had employment as a casual maintenance person at a local pre-school since 2016. He has reduced significantly his use of alcohol although his evidence at the hearing was that he still drinks about every second day and when he does he has five or six schooners. He still uses cannabis although has also reduced his consumption of this. We accept the applicant’s evidence which is supported by notes from the local Aboriginal Medical Service that he has had counselling with a mental health nurse between 2016 and 2018 however there is no reference in those notes of any discussion with the nurse about the disqualifying offence.
The applicant’s evidence, which was not challenged by the respondent on this issue, was that he was approached by some members of his local Aboriginal community to see if he would be willing to run workshops and support groups for young Aboriginal men. He said he was told by those who made this approach to him that his own life experiences are known in the community as are his attempts to overcome alcohol issues. These issues have led to him being convicted of driving offences in the past and he was told he will be able to assist young men by talking to them about his experiences and ways to avoid mistakes he has made. We draw the conclusion from this evidence that he is well regarded within in his local community.
Apart from the driving offences, the last of which occurred in 2010, the applicant has had no known criminal offences and there is no evidence before us of any conduct which could be considered adverse to the applicant since the disqualifying offence.
The respondent has raised the fact that the applicant did not disclose to Dr Seidler that he had received custodial sentences. The applicant’s presentation was consistent with the opinion of Dr Seidler that he has limited cognitive capacity and that he is psychologically and socially unsophisticated. He was able to express clearly that he considers he is now a very different person to the one that he was at the time of the disqualifying offence having taken steps to address his drug and alcohol abuse.
Overall, we formed the view that the applicant was frank in his evidence and demonstrated a very clear awareness and understanding of the impact of his actions on the victim. We consider the applicant showed genuine remorse for his conduct.
Having regard to all of the evidence before us we are satisfied that the likelihood of the applicant re-offending is low. In reaching this conclusion, we placed particular weight on the evidence of Dr Seidler that the applicant poses a low risk to the safety of children and specifically a low risk of sexual offending with children.

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

The applicant has provided a statutory declaration and gave oral evidence. He sets out in his statutory declaration his family background. He had a difficult childhood and left school in Year 9. He continues to struggle with literacy. His relationship with his long term partner, who was the victim’s aunt, broke up after the disqualifying offence and he has not re-partnered. He said he is currently a board member of the local Land Council and is a member of the local State Emergency Service.
The applicant requires a working with children check clearance in order to continue to run workshops and mentoring groups for young Aboriginal men in his community which he has been requested to do by other members of the community.

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

The respondent concedes there is no evidence of the applicant being alleged to have posed a specific risk to children. The respondent points out that the applicant’s account of the disqualifying offence to Dr Seidler and in his statutory declaration contain some inconsistencies. The applicant’s continued use of alcohol and cannabis is said to be of concern given the disqualifying offence occurred in the context of alcohol and cannabis use.
The respondent in final submissions maintained the view that the application was neither opposed or supported by the respondent.

s 30 factors that are not relevant to the application

As far as the material before the Tribunal indicates, no relevant information in relation to the applicant was obtained in accordance with s 36A of the Child Protection (Working with Children) Act (see s 30(1)(j1)). There is no order of a court or tribunal that is in force in relation to the applicant (s 30(1)(i1)) and none of the applicant’s victims were children (see s 30(1)(f)).

Conclusion

By reason of his disqualifying offences there is a statutory presumption that the applicant poses a risk to the safety of children. The question is whether he has rebutted that presumption. Having regard to all of the material before us we are satisfied that the applicant has rebutted that statutory presumption and does not pose a real and appreciable risk to the safety of children for the following reasons:

We find that the applicant’s 2004 sexual offending was serious. However, the victim was not a child and in the intervening 15 years the applicant has not committed an offence of this kind again. His driving offences are of concern even though they did not involve a child or young person. However, the most recent of these driving offences occurred in 2010 and there is no evidence of the applicant offending in the same manner again since then.

We find the applicant has been a stable and pro-social member of his community for many years and his services to the local Aboriginal community have been providing a dual benefit to him and the community. We accept that the applicant is well-regarded and respected within his community and has been requested to run workshops and mentor young men in the community.

The evidence of Dr Seidler, which we have accepted, that the applicant does not pose a tangible or specific risk to children and that the applicant’s risk of offending today is very low.

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

Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section 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:

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

it is in the public interest to make such an order

The onus is on the applicant for an enabling order in VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this 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.

We are satisfied that a reasonable person would have regard to the fact it is 15 years since the disqualifying offence and the opinion of Dr Seidler that he is a low risk of sexual re-offending and does not pose a tangible or specific risk to children. The reasonable person would have regard to the fact that the applicant has not been convicted of any other sexual offences since the disqualifying offence and has not been convicted of any driving offences since 2010. The reasonable person would also have regard to the applicant engaging in prosocial activities since the disqualifying offence.
Having regard to all the evidence available to 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.
The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.
The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The onus is on the applicant to establish this. The applicant committed a sexual offence against a 24 year old woman nearly 15 years ago. It is not in the public interest that the Child Protection (Working with Children) Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence we are satisfied that it is in the public interest to make the orders sought by the applicant. We accept that the applicant is well regarded in his local community to the extent that he has been requested to run workshops and act in the role of mentor to young Aboriginal men. In our view based on all the material before us that enabling the applicant to work with children is in the public interest.

Orders

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

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 act of indecency Crimes Act 1900 (NSW), s 61N

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.

**********

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: 17 July 2019

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Citations

Dnu v Children's Guardian [2019] NSWCATAD 139

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

6

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BHA v Children's Guardian [2014] NSWCATAD 161

Commission for Young People v V [2002] NSWSC 949

Medium Neutral Citation:	DNU v Children’s Guardian [2019] NSWCATAD 139
Hearing dates:	14 March 2019
Date of orders:	17 July 2019
Decision date:	17 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, 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 Act 2012 (NSW) in respect of the offence of assault with an act of indecency Crimes Act 1900 (NSW) s 61N (2) (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 adult 14 years ago – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children- costs
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AYU v NSW Office of the Children’s Guardian NSWCATAD 69 BHA v Children’s Guardian [2014] NSWCATAD 161 BKE v Children’s Guardian [2015] NSWSC 523 Department of Justice v PMY [2012] VSCA 143 Secretary Department of Justice v LMB, Secretary VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	CYO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Simpson (Applicant) I Fraser (Respondent) Solicitors: Legal Aid Commission NSW (Applicant) Crown Solicitor (Respondent)
File Number(s):	2018/00234879
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.