DPG v Children's Guardian

[2019] NSWCATAD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DPG v Children’s Guardian [2019] NSWCATAD 160
Hearing dates:	12 April 2019
Date of orders:	14 August 2019
Decision date:	14 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S. Scarlett, Senior Member P. Foreman, General Member
Decision:	The decision of the Children’s Guardian made on 19 September 2018 not to grant the Applicant a Working with Children Check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review – application for enabling order under section 18 Child Protection (Working with Children) Act 2012 NSW – applicant a Disqualified Person – child protection – what is the correct and preferable decision having regard to the material before the Tribunal – whether the applicant poses a real and appreciable risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1999 (NSW), s 58 Child Protection (Working with Children) Act 2012 (NSW) ss 5B, 18, 26, 27, 28, 30 Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Crimes Act 1900 (NSW) ss 61HB, 61HE, 61I, 61KC, 61L Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 12 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Cases Cited:	BKG v Children’s Guardian [2015] NSWCATAD 75.
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DPG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms Swami (Respondent)   Solicitors: DPG (Self Represented) (Applicant) Crown Solicitor (Respondent)
File Number(s):	2018/00312030
Publication restriction:	With the exception of expert witnesses or 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 is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. This is an application for an Enabling Order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW). The Applicant had applied for a Working with Children Check Clearance, but on 19 September 2018 the Children’s Guardian refused the application under s 18(1)(a). The reason for the refusal was that the Applicant is a Disqualified Person as he had been convicted as an adult of an offence specified in Schedule 2 of the Act, a “Disqualifying Offence”.

2. The Disqualifying Offence was a conviction on 18 June 2004 as a result of a plea of guilty to a charge under the former s 61L of the Crimes Act 1900 (NSW), being an assault with an act of indecency. The Applicant was given an 18 month suspended sentence conditional on his entering into a good behaviour bond. The Applicant set out in his statement of 16 February 2019 that the conditions of the bond required him to accept the supervision of the Probation and Parole Service and to undertake a Pacific Islander Group program. He stated that he complied with those conditions.

3. The Applicant requires a Working With Children Check Clearance in order to become a Minister in the United Pentecostal Church of Australia.

4. On 12 October 2018 the Applicant applied to the Tribunal for a review of the decision of the Children’s Guardian to refuse him a clearance . He requires an Enabling Order. As the complainant for the Disqualifying Offence was an adult at the time, the Applicant is not barred by s 26 from applying for an Enabling Order.

5. In support of his Application, the Applicant relies on a statement which he forwarded to the Tribunal on 16 February 2019. He also relied on a Psychological Assessment Report from Mr Jason Borkowski, a Forensic Psychologist, dated 29 January 2019. Mr Borkowski attended the hearing by telephone and was cross-examined by Ms Swami of counsel for the Respondent.

6. The Applicant also provided a short written submission dated 29 March 2019 in which he sought to rely on the decision in BKG v Children’s Guardian [2015] NSWCATAD 75 in support of his case.

7. Finally, the Applicant relied on two character references, one from the Pastor of his church and the other from a doctor. The Pastor described him as a “kind, caring and a cheerful person” whilst the doctor described him as being “of good moral character”.

Legal principles

8. Under s 18(1) of the Child Protection (Working with Children) Act 2012 (to be referred to for convenience as the Working with Children Act), the Children’s Guardian must not grant a Clearance to a Disqualified Person. Paragraphs (a) and (b) of s 18(1) of the Act define a disqualified person as:

1. A person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

2. A person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

9. Disqualifying offences are specified in Schedule 2 of the Act and include s 61L of the Crimes Act 1900.

10. Where a person has been refused a clearance under s 18(1), he or she may apply under s 28(1) for an enabling order, i.e. an order declaring that the person is not to be treated as a disqualified person for the purposes of the Act in respect of the offence specified in the order. However, s 26 sets out a list of persons who are not entitled to apply for an enabling order. The list includes a person who has been convicted of an offence of an offence against s 61L of the Crimes Act “if the person against whom the offence was committed was a child”.

11. In this case, the victim was the Applicant’s then wife, who was an adult at the time. Thus, the Applicant is not barred from applying for an enabling order.

12. As Counsel for the Respondent Children’s Guardian has correctly submitted, in determining an application, the Tribunal must consider the matters set out in subsections 30(1)(a) to (k) of the Working with Children Act. If the Tribunal is satisfied that the Applicant does not pose a risk to the safety of children on the basis of the s 30(1) factors, the Tribunal must then consider the matters set out in s 30(1A)(a) and (b). A clearance can be granted if, and only if, 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 any child-related work, and

2. It is in the public interest to make the order.

Background

13. Counsel for the Respondent has prepared a useful chronology describing events that are uncontroversial and the Tribunal has had recourse to that document for the preparation of these reasons for decision.

14. The Applicant was born on 10 December 1970, so he is 48 years of age. His then wife, whom he married in 1991, was born on 30 December 1972. They separated in 1994, although they later resumed cohabitation. They again separated and divorce proceedings were not commenced until January 2009. There are two children of the marriage.

15. Between 5 August 1991 and 21 October 2003, the date of the disqualifying offence, the Applicant came under notice from the Police on 9 separate occasions, 8 of which involved charges of assault or affray. The Applicant’s then wife was the victim of the assaults on at least 5 of those occasions.

16. The Applicant was subjected to an Apprehended Violence Order on 26 June 1996. His then wife was the Person in Need of Protection. He breached that order between 2 and 6 February 1997.

17. The other matter for which the Applicant came under notice involved charges of driving with the Mid-Range prescribed content of alcohol in his bloodstream, driving whilst unlicensed and driving an unregistered and uninsured motor vehicle.

18. The disqualifying offence took place early in the morning of 21 October 2003, when the Applicant, who had been drinking, arrived at the home he shared with his wife and children and attempted to have sexual intercourse with her. She refused and resisted his advances. The two children were asleep in another room, but they were awoken by the noise. The older child knocked on the bedroom door and threatened to call the Police. The Police arrived at 2:40 am and forced entry into the house. The Applicant was arrested and taken to Mount Druitt Police Station.

19. The Applicant was charged with attempted sexual intercourse without consent under s 61I of the Crimes Act. On 18 June 2004 he pleaded guilty to the lesser offence of assault with act of indecency under s 61L of the Act. He was convicted and given an 18 month suspended sentence, conditional on his entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

20. It is noteworthy that the Applicant was convicted for further assaults on 8 February 2007 and 23 July 2012. On each occasion he was given a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The victim of the latter offence was the Applicant’s current wife, whom he married in September 2010. She was also the Person in Need of Protection in an application made by the Police for an Apprehended Violence Order arising out of an incident on 4 March 2011.

Evidence

21. The Applicant relied on his statement and the Psychological Assessment of Mr Jason Borkowski, Forensic Psychologist, dated 29 January 2019. He also relied on the two character references referred to in paragraph [6] above.

22. The Respondent relied on three bundles of documents under s 58 of the Administrative Decisions Review Act 1997 (NSW).

23. The Applicant gave oral evidence and was cross-examined by Ms Swami, Counsel for the Respondent.

24. The Applicant said that his current wife was present at the hearing. She did not provide an affidavit and did not give evidence.

25. The Applicant said that he made a positive change to his life in 1997 when he attended church and adopted the Christian faith. He said that he stopped using alcohol in 1999.

26. The Tribunal noted that the Applicant’s memory of many of the incidents in his criminal record was often sketchy, or non-existent, or completely contrary to the Police facts. In particular, he said that he did not remember a lot of the alleged facts of the breach of the Apprehended Violence Order in February 1997, or the details of an alleged incident involving his first wife on 17 May 2003. The Applicant’s son was said to have called the Police on that occasion. Again, the Applicant said he did not remember the details of a conviction for common assault on 8 February 2007.

27. The Applicant expressed remorse when speaking of the disqualifying offence relating to his former wife, saying “I know it’s wrong, what I did to her”. He also agreed that it was concerning that he had been involved in incidents of violence against his current wife on 4 March 2011 and on 23 July 2012, the latter of which led to a conviction for common assault.

28. Mr Jason Borkowski, psychologist, provided a Psychological Assessment Report in support of the Applicant’s case. In his Report, Mr Borkowski stated that he considered the documents filed by the Respondent under s 58 of the Administrative Decisions Review Act and conducted an interview with the Applicant over a period of some 2.5 hours on 24 January 2019. During that time he administered the following psychometric assessments:

1. The Psychiatric Diagnostic Screening Questionnaire PDSQ);

2. The Million Clinical Multiaxial Inventory-IV (MCMI-IV);

3. The Level of Service Inventory-Revised (LSI-R);

4. The Static-99R; and

5. The Sexual Violence Risk-20(SVR-20).

29. The Applicant reported that his widowed mother moved in to live with him in 2016. He also lives with his wife and two daughters from his current marriage, aged nine and six years. He has had minimal contact with his daughter and son from his previous marriage, both of whom are in their twenties. He said that he had a close relationship with his four siblings and his 10 nieces and nephews. He told Mr Borkowski that his primary social networks are made up of friends and acquaintances from his church. He identified his current wife, his brothers and his church pastor as his primary prosocial supports.

30. Mr Borkowski reported that the Applicant

“acknowledged that in the past he experienced some difficulties in managing anger, mostly when he was intoxicated, or otherwise in the context of a problematic relationship with his first wife.”

31. The Applicant denied any ongoing desire to drink alcohol and “said he has been alcohol free for over fourteen years.”

32. Significantly, Mr Borkowski noted that although the Applicant had attended drug and alcohol counselling after the disqualifying offence in 2003 and maintained that he had remained abstinent from alcohol since that time, he has incurred two further charges since that time. Against this, the Applicant expressed his genuine remorse for his past offending and stated that he had worked on developing anger management strategies.

33. The Applicant was described as

“essentially a well-functioning, generally adaptive individual, with no major personality disturbances”.

Further:

“His score on the AUDIT suggested he is in the Low Risk category in regard to harmful or hazardous patterns of alcohol use”.

34. Mr Borkowski made an assessment of the Applicant’s risk of general re-offending and his risk of sexual offending, based on the LSI-R and the Static-99R respectively. He was rated as Low Risk of general offending and with a risk of reoffence at Level III. However, Mr Borkowski noted that the Applicant “has resided in the community with no further sexual offences for over 15 years, and no general offences for over 5 years. Thus, his risk of re-offending could be considered lower than the above risk estimate.”

35. Mr Borkowski went on to consider the Applicant’s Dynamic risk Factors and opined that the Applicant was considered to pose a low risk of sexual re-offending.

36. In summary, Mr Borkowski expressed the opinion that the Applicant poses a low risk of offending behaviour and a low risk of potential harm to others, including harm to children.

37. Mr Borkowski gave oral evidence by telephone and was cross-examined by Counsel for the Respondent. He conceded that the Applicant’s intimate relationships had been somewhat dysfunctional but said that he was socially adaptable and was able to maintain long term relationships.

38. In general, Mr Borkowski maintained the conclusions in his Report.

Submissions

39. The Applicant was reminded by the Tribunal that an Enabling Order was required because he had committed a disqualifying offence and he, therefore, had to prove that he is not a risk to children. Further, the responsibility to prove that he is not a risk was his. Consequently, he was asked whether there was any other evidence that he could present to prove that he is not a risk to children.

40. It was then that the Applicant tendered his character references from his Pastor and the doctor, previously referred to in paragraph [6].

41. Ms Swami for the Respondent submitted that neither of the Applicant’s character references referred to the disqualifying offence or to his working with children.

42. Further, whilst the Applicant, in his short written submission had relied on BKG v Children’s Guardian, the Tribunal should distinguish that decision for the following reasons:

1. The application in that case was under s 27 of the Working with Children Act for which there is no presumption that an applicant poses a real or appreciable risk to the safety of children, but there is a presumption against the current Applicant in that he is a Disqualified Person by virtue of a 18(1)(a) of the Act; and

2. Whilst the applicant in BKG was granted a clearance despite a lengthy criminal history and his use of alcohol being a constant factor in his offending, the Tribunal had found that the applicant in BKG had substantially changed his life over the previous 20 years and had played a productive role in bringing up and caring for his children, grandchildren, nieces and nephews.

43. It was submitted that the Tribunal must consider the matters under s 30(1) of the Working with Children Act and that, having done so, the Tribunal should find on the evidence before it, that the Applicant poses a risk to the safety of children and, accordingly, the matters under s 30(1A) of the Act need not be considered.

44. However, if the Tribunal were to consider those matters, a reasonable person with knowledge of the information in this case would not allow his or her child to have direct, unsupervised contact with the Applicant whilst he was engaged in child-related work (s 30(1A)(a)).

45. Further, it would not be in the public interest for the Tribunal to grant an Enabling Order (s 30(1A)(b)).

Conclusions

46. In this case, the Tribunal must consider the matters set out in ss 30(1) and 30(1A) of the Working with Children Act. It should be borne in mind that in an application for an enabling order, s 28 of the Act places the onus of proving that the applicant should not be treated as a disqualified person squarely on the applicant. S 28(1) provides that:

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.

47. Dealing first of all with the matters under s 30(1) of the Act, the Tribunal finds as follows:

(a) the seriousness of the offence with respect to which the applicant is a disqualified person

48. The disqualifying offence is serious offence. The Applicant was well-affected by alcohol at the time. He jumped on the victim whilst she was asleep, demanding to have sex and dragged her into a bedroom. Despite her refusals, he threw her onto a bed and removed some of her clothing. She attempted to move away from him but he grabbed her ankles and pulled her back towards him a number of times.

49. It is a matter of concern that the children were in the house at the time and one of them knocked on the door and threatened to call the Police. The Applicant was arrested and charged and subsequently pleaded guilty to a lesser charge for which he received an 18 month suspended sentence.

(b) the period of time since the offence occurred and the conduct of the Applicant since then

50. The offence occurred 16 years ago, in 2003. It is a matter of concern that the Applicant has subsequently re-offended, with convictions for assault in 2007 and 2012.

(c) the age of the Applicant at the time of the offence

51. The Applicant was 32 years old at the time of the disqualifying offence.

(d) the age of the victim at the time of the offence and matters relating to the vulnerability of the victim

52. The victim was the Applicant’s former wife, aged 30 at the time. She would have been vulnerable because of the previous history of domestic violence, the fact that she was asleep when the Applicant first attempted to force himself on her, and her need to protect the children, then aged 12 years and 10 years.

(e) the difference in age between the victim and the Applicant and the relationship between them

53. The victim is two years younger than the Applicant. They were married at the time, but they had been separated.

(f) whether the Applicant knew that the victim was a child

54. The victim was an adult aged 30, not a child.

(g) the Applicant’s present age

55. The Applicant is now 48 years of age.

(h) the seriousness of the Applicant’s criminal history and the conduct of the Applicant since the offence occurred

56. The Applicant has been convicted of at least six offences prior to the disqualifying offence, all but one of which have involved violence and all have had alcohol as a contributing factor. Since that offence, He has had two further convictions for assault and has been subject to an Apprehended Domestic Violence Order.

(i) The likelihood of any repetition by the Applicant of the disqualifying offence

57. The Applicant has been assessed as being at a low risk of repetition by Mr Borkowski, the psychologist. However, whilst he has attempted to address his behaviour by means of abstention from alcohol the Applicant has been convicted of an assault on his current wife in 2012, well after the time he started abstaining from alcohol.

(i1) any order of a court or tribunal that is in force

58. There is no current order in force.

(j) any information given by the Applicant

59. The Applicant has provided a Psychological Assessment Report and two character references. He has also provided a written statement.

(j1) any relevant information in relation to the Applic ant

60. There is no other relevant information.

(k) any other matters

61. The Tribunal notes that the Applicant has not provided evidence from people who might otherwise have been expected to have supported his case, such as his current wife, his brothers, and the Pastor of his church. His wife was present at the Tribunal hearing but was not called to give evidence.

62. The Tribunal notes that the Applicant’s criminal history includes convictions for crimes of violence against both his current wife and his former wife, some of which have occurred when his children were present in the house. Despite the Applicant’s claim to have had a positive change in his life in 1997, when he commenced to attend church and embraced the Christian faith, he did not cease to offend.

63. Whilst the Applicant claims to have turned his life around, his failure to call evidence from his current wife, by whom he has two young children, does not assist him to satisfy the Tribunal that he does not pose a risk to the safety of children.

64. Similarly, whilst the Applicant claims to have a positive relationship with his three brothers and his sister, and a close relationship with his 10 nieces and nephews, he has not provided any evidence from any of his siblings to support that claim.

65. The Applicant claims to have a strong involvement with his church and requires a Working With Children Check clearance in order to become a Minister of the United Pentecostal Church, like his father and his eldest brother. He has provided a very general character reference from his Pastor, but there is nothing to show that the Pastor has any knowledge of the Applicant’s criminal history or his need for an Enabling Order.

66. The Applicant’s evidence is not sufficient to rebut the presumption in s 28(7) of the Working with Children Act that he poses a risk to the safety of children

67. Turning now to a consideration of the matters in s 30(1A) of the Act, the Tribunal is not satisfied that an order should be made enabling the Applicant to work with children.

Whether a reasonable person would allow his or her child to have direct contact with the Applicant that was not directly supervised by another person was engaged in any child-related work

68. The Tribunal is not satisfied in this regard. A reasonable person would have concerns about the Applicant’s lengthy history of crimes of violence, some of which were committed after he had embraced the Christian faith and after he had abstained from alcohol.

69. The seriousness of the disqualifying offence, an attempted sexual assault on his wife whilst the children were present in the house, would also cause a reasonable person some serious concern.

70. The very fact that the majority of the Applicant’s criminal convictions, with the exception of the alcohol-related driving offence, have resulted from offences of a domestic violence nature, would in the Tribunal’s view cause a reasonable person not to allow his or her child to have direct contact with the Applicant that was not directly supervised by another person whilst the Applicant was engaged in any child-related work.

Whether an order is in the public interest

71. Similarly, the Tribunal is not satisfied that it is in the public interest to make an order under this Part.

72. The Applicant seeks an enabling order to become a Minister of his church, which is without doubt a worthy ambition. However, the Applicant’s decision to turn his life around and embrace Christianity in 1997 did not see his offending behaviour come to an end.

73. It is unclear whether the Applicant can perform voluntary work with his church that does not require a Working With Children Check clearance. It would have assisted the Tribunal to have had evidence from the Pastor of his church or some other representative of the Church to explain what opportunities there would be for the Applicant. However, no such person was called.

74. The Applicant seeks a clearance to perform voluntary work. His employment will not be affected by his inability to obtain a clearance.

Order

1. The decision of the Children’s Guardian made on 19 September 2018 not to grant the Applicant a Working with Children Check clearance is affirmed.

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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: 14 August 2019