DQK v Children's Guardian

[2020] NSWCATAD 7

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DQK v Children’s Guardian [2020] NSWCATAD 7
Hearing dates:	21 August 2019
Date of orders:	21 August 2019
Decision date:	16 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member P Foreman, General Member
Decision:	(1) It is declared DQK is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of an indecent assault contrary to s 61L Crimes Act 1900 (NSW) entered on 7 February 1996 at the Byron Bay Local Court. (2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 16 November 2018 is granted. (3) The Children’s Guardian is to grant a working with children check clearance to DQK pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).
Catchwords:	ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW)child protection – working with children - risk to children whether risk real and appreciable– indecent assault contrary to s 61L Crimes Act 1900 (NSW)– enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child and Young Persons (Care and protection) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFB v Children's Guardian [2014] NSWCATAD 111 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BYR v Children’s Guardian [2013] NSWADT 310 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CJT v Office of the Children's Guardian [2016] NSWSC 738 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 M v M [1988] HCA 68; 166 CLR 69 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children's Guardian [2017] NSWSC 174 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DQK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J McDonald (Respondent)   Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2018/00352502
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. This is an application filed on 16 November 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The applicant in these proceedings is referred to as "DQK". DQK is the applicant's pseudonym used in these proceedings in conformity to an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

2. On 19 October 1995, DQK was charged with three offences, the relevant offence being an indecent assault on a person contrary to s 61L Crimes Act 1900 (NSW) (the Disqualifying Offence). DQK pleaded not guilty to the Disqualifying Offence. He was ultimately found guilty and sentenced to three months imprisonment for the Disqualifying Offence. The Disqualifying Offence is one which is specified within Schedule 2.1(1)(e) of the Act. As such it deems DQK to be a disqualified person and one who is unable to obtain a WWCCC.

3. On 17 August 2018, DQK applied to the Children’s Guardian for a WWCCC. In support of an order under section 28(1) of the Act, DQK told the Tribunal that he wishes to be able to fully participate in voluntary work with his son’s school sporting events and requires a WWCCC in order to fulfil that ambition.

4. The respondent on 19 October 2018, advised DQK that due to the disqualifying offence included in his criminal history, he was not eligible to be granted a Working with Children Check clearance (“WWCCC”) (referring to s.18(2) of the Act).

5. The Respondent filed written submissions neither opposing nor supporting an order that DQK not be treated as a disqualified person for the purposes of the Act in respect of the Disqualifying Offence.

6. The issue for us to consider in determining an application for an enabling order is whether, at the date of hearing, we can be satisfied DQK has rebutted the presumption that he poses a real and appreciable risk to children, and if so whether to grant DQK a WWCCC.

7. After consideration of all of the evidence, we decided to declare that DQK is not a disqualified person and to grant him a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

8. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or grant an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance (sections 3 and 28(1) of the Act).

9. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act (section 4 of the Act).

10. There is no relevant definition of “child abuse” contained in the Act. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]- [30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:

Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a)   the physical injury or sexual abuse of a child or young person, or

(b)   a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c)   the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units

11. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.

12. The Disqualifying Offence with which DQK was charged and convicted is one which falls within Schedule 2.1(1)(e) of the Act. Therefore, DQK is treated as a “disqualified person”. By reason of section 18(1)(a) of the Act, the Children’s Guardian must not grant a WWCCC to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. DQK is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence.

13. An enabling order is sought by DQK pursuant to section 28 of the Act, which provides:

28 Orders relating to disqualified and ineligible persons

(1)   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 this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.

(2)   The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.

(3)   A disqualified person may make an application under this section only if:

(a)   the person has been refused a Working with Children Check clearance, or

(b)   the person’s clearance has been cancelled,

because the person is a disqualified person.

(4)   The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5)   An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6)   If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7)   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.

(8)   An enabling order may not be made subject to conditions.

14. The Respondent is a party to the proceedings pursuant to section 28(4) of the Act.

15. A person is not permitted to engage in child-related work unless they hold a WWCCC (section 8 of the Act).

Standard of Proof

16. It is to be presumed, unless DQK proves to the contrary, that DQK poses a risk to the safety of children (section 28(7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

Relevant considerations

17. In making a determination under section 28 of the Act, the Tribunal must consider the matters under section 30 of the Act. Those matters are:

30 Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part:

(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 total criminal record and the conduct of the person since the offences 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.

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

18. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

What must be determined

19. The Tribunal is to determine whether DQK has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28(7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before it in order to assess whether the onus of proof has been discharged to rebut the presumption.

20. In determining whether DQK does pose a risk to children it is accepted that the risk must be a real and appreciable risk: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian[2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

21. In exercising our protective jurisdiction and considering the paramount principle in section 4 of the Act, the tribunal in carrying out an assessment of whether DQK is a real and appreciable risk to the safety of children should err on the side of caution if there is a deficiency in information, or, if there is doubt created by the available material (BFB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].

22. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29]   InCommissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference toBriginshaw v Briginshaw [1938] HCA 34;  60 CLR 336 (“Briginshaw”) in the above passage fromIK(at [68]). I share his Honour’s misgivings.Briginshawwarns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles inBriginshawwere enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard toBriginshaw’sadmonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (seeR v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30;  50 CLR 228 at p 256 per Evatt J).

...

[31]   InM v Mthe High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned inBriginshaw” (M v Mat p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated inBriginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32]   The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v Mat p 78).

[33]   The above passage fromM v Mcontemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by theWorking with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (Vsupra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability ofBriginshawnoted in [29], the reasoning inM v Mis applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

23. For clarity the Court in M v M accepted that a positive finding that an allegation of sexual abuse is true should not be made ‘unless the Court is so satisfied according to the civil standard of proof, with regard to the factors mentioned in Briginshaw’ (M v M at page 76).

24. It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

25. The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the applicant, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

26. In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.

27. In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

28. The New South Wales Court of Appeal in Tilley v Children’s Guardian (2017) NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors.

29. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

30. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

31. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application (s 27(1) of the Act). In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see ADR Act, s 63(3) and the Act, ss 18(2) and (3).

32. An application under section 27 of the Act is a merits review and not a review in which DQK must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

Evidence

Documents

33. DQK filed the following written material:

• Application filed 16 November 2018 (A1)

• Statement of DQK filed 21 August 2019 (A2)

• Email of support 1 June 2019 (A3)

• Email of support 7 January 2019 (A4)

• Report of Zane Danesi 11 June 2019 (A5)

34. The respondent filed the following written material

• S58 bundle 17 December 2018 (R1)

• Further bundle 7 February 2019 (R2)

35. DQK was not represented. The respondent was represented by Counsel. The parties filed a summary of legal argument and written submissions.

36. The hearing was conducted over a day. During the hearing, DQK gave oral evidence and was cross-examined by the respondent’s counsel.

The circumstances of the disqualifying offence

37. The disqualifying offence occurred on 19 October 1995 at a leisure centre at around 9.30 p.m. DQK was with two males, all of whom had been drinking prior to arriving at the leisure centre.

38. DQK was charged with a number of other offences apart from the disqualifying offence, being malicious damage and assault. In the documents R1, the Police Report gives the following narrative of the events giving rise to the offences:

At the time they were all intoxicated. They played pool and amused themselves for a while. DQK begin chatting [sic] to the staff member … who was at the counter (that being the victim). The two other offenders had come [sic] to the counter area. One of these knocked a tic tac display over, this fell to the inside of the counter. DQK insisted entering the counter area to assist the victim with cleaning it up. She asked him to leave the area. When he refused she attempted to push him out of the area. He began pushing her around. He pushed her head against a shelf in the shop and DQK and the other two males … began throwing the stock that was on the counter around. This stock was mainly confectionary but also contained other items such as coin mechanisms for the coin machines and the victim’s contact lenses. In short all this stock was thrown to the floor, DQK had been throwing the stock directly at the victim. The victim made a few attempts to get DQK to leave but these were unsuccessful. The victim also attempted to ring the police but DQK hung the phone up on her. The [three males] left the shop and as DQK left he grabbed both the victim’s breasts in both hands and squeezed them. She tried to kick him and he said ‘keep your legs still or I’ll spread them apart and split you in half’ he then left the shop and the victim called the police.

39. The victim was 19 years old.

40. When initially questioned by police, DQK denied the incident and said (at Tab 5, page 20 of Exhibit R1); ‘That’s bullshit I never did any of that, that’s bullshit’. During an extended interview with the police DQK gave a different account of the incident as referred to above. He said that he did not remember everything, but they were apparently there at the leisure centre and something happened. He was standing where the victim did not want him to be and she’s jumped up and tried to knee DQK in the testicles. DQK said he held her back away from him and there were lollies that were knocked over all around the counter. DQK denied squeezing the victim’s breasts or saying ‘keep your legs still or I’ll spread em apart and split you in half’.

41. DQK was subsequently charged with malicious damage, indecent assault and assault. He pleaded guilty to malicious damage and was committed to a custodial sentence of one month. Despite pleading not guilty to assault and indecent assault, he was convicted of both charges and sentence to three months imprisonment for the two assault charges. He served all charges concurrently with a term of imprisonment of three months.

42. In oral evidence DQK said the offence of indecent assault occurred many years ago. He is embarrassed by his behaviour and regretted the incident. DQK maintained his denial that he did not squeeze the victim’s breasts. He referred to having spoken with a person from Legal Aid ten minutes before the matter was on for hearing and inferred that he should have considered an appeal given the findings of the Magistrate. However, DQK accepts that the charge was a sexual charge and agreed in cross-examination that it is important to ensure that people applying for WWCCCs meet the requirements of the law.

Section 30 of the Act mandatory considerations

(i)   The seriousness of the offences with respect to which the person is disqualified or any matters that caused an assessment and refusal of a clearance or the imposition of an interim bar

43. DQK is a disqualified person, having been convicted, within the meaning of the Act, of an offence listed in Schedule 2 of the Act, namely indecent assault contrary to s61L of the Crimes Act.

The offence in itself is serious particularly within the context of the Tribunal’s protective jurisdiction. The victim was an adult of 19 years of age. DQK has denied the indecent nature of the offence, that being, grabbing of the victim’s breasts. His denial is made in circumstances where a Court found him guilty of the offence. We must accept the unchallenged verdict of the presiding Magistrate at the time DQK was convicted of the offence. It is evident to us that DQK took advantage of the victim’s vulnerability alone in the leisure centre, albeit under the influence of alcohol.

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

44. The offence occurred on 19 October 1995, almost 24 years ago.

45. As referred to above, DQK has had no convictions or charges for any sexual offence other than the disqualifying offence. This includes having no reported involvement with police for more than the last 10 years. However, DQK has a reasonably extensive criminal history, which includes convictions for assault, assault occasioning actual bodily harm, assault police, resist arrest, cultivating and possessing a prohibited drug, offensive language and traffic offences. DQK also has a history of domestic violence that has been the subject of a number of Apprehended Violence Orders.

46. The following additional matters are relevant to our determination.

Other matters considered by the Respondent to be relevant to our determination

1993 Assault of a Woman

47. In December 1993, when DQK was 18 years of age, he was charged with assault of a 45 year old woman. The Police Fact Sheet indicates that DQK had entered into the front yard of the victim’s home to collect a cricket ball. A verbal argument ensued. DQK punched the victim in the face. He pleaded guilty to an offence of assault and no conviction was recorded pursuant to the then provision s556A of the Crimes Act 1900 on condition of the applicant entering a recognisance of $200 for 6 months.

48. In cross-examination DQK denied the assault. He said he went to get a ball which went over the fence. The victim came at him to get the ball. DQK put his hand out to push her away and that was the extent of the incident. On advice of his solicitor at the time he was told if he pleaded guilty he will get a ‘s556A or something’.

Fights attempting to enter licensed premises

49. Over a period of 10 years since the age of 18, DQK has been involved in 3 separate incidents of attempting to enter licensed premises, which resulted in altercations with the staff of those premises and police.

50. In November 1995, DQK at age 20 and less than a month after the disqualifying offence, was involved in a major altercation at an RSL Club in northern New South Wales. The altercation resulted in DQK being charged and convicted of assault occasioning actual bodily harm; two counts of assault police; two counts of resist arrest; offensive language; offensive conduct and remaining upon enclosed land. He was sentenced to three months fixed term imprisonment. At the time of the altercation DQK was intoxicated and aggressive. Police attempted to remove him from the RSL Club of which he had been banned. In the course of attempting to do this and during an arrest DQK punched a doorman, who suffered a fractured nose, possible fractured cheek and possible eye damage (Exhibit R1, pages 66 and 67; Tab B 14(b), page 293).

51. In cross-examination DQK said that he had been banned from the RSL Club previously but was not at this time. He gave a version of events where he ‘gave a mouthful’ to the doorman, he turned around and was punched in the head and he does not remember anything after that. He said he woke up in gaol and just pleaded guilty. DQK said that when he was young he was ‘not a nice bloke’ but could not provide any further details concerning this incident. When asked what he thought about this and other events concerning alcohol fuelled violence he responded ‘There are a lot of things I would change. Going to gaol for something I did not do. I refute a lot of things. But I have made mistakes and done things wrong. My past is littered with alcohol and violent things I have done. I have gone to great lengths to get help for this. I have turned back to drink and alcohol before. But after becoming a father I do not want to fail I have learnt to breathe now to trick the brain. Remain calm and make clear decisions.’

In June 1998 DQK was admitted to a northern New South Wales Hospital for a self-inflicted stab wound to the abdomen.

52. DQK admitted he inflicted this wound as a result of feeling depressed over a broken down relationship with his then girlfriend but denied being suicidal.

53. A reference in documentation contained at R2, Tab 6, page 41, refers to DQK attempting to burn himself alive by dousing himself with petrol. In cross-examination DQK denied this related to him and said it was in reference to his father. There are no other documents contained in the material before us in this regard.

Domestic Violence Incidents

54. The material filed on behalf of the respondent indicates that DQK has been involved in at least 10 incidents of reported domestic violence, which include his then partners, his sister and other members of his family. The incidents relate to events occurring from November 1997 to March 2008. Since that time there are no recorded or reported incidents involving DQK of a domestic violence nature.

55. The first incident occurred in November 1997 when DQK was 22 years old. Police attended DQK’s residence. On arrival DQK and his girlfriend had left the premises. On their return questions were asked of DQK as to him damaging a car at which time he became aggressive and started swinging at police. During an attempted arrest of DQK he struggled and punched two officers in the face. DQK broke away and was later arrested by the same two officers. He was convicted of four counts of resist arrest, offensive language and two counts of assault. He was fined and entered into a reconnaissance of $100 to be of good behaviour for 2 years. In respect of the two counts of assault occasioning bodily harm he was sentenced to a community service order of 100 hours on each count.

56. On 5 December 1998, DQK was 23 years of age. Police attended his residence and observed he smelt strongly of alcohol. DQK said he had been in a verbal argument with his partner. There was no evidence of assault or other offences. The argument was witnessed by DQK’s sister’s 3 year old son.

57. On 13 October 2007 DQK was 32 years of age. Police had been called to DQK’s residence in relation to a domestic assault. The assault involved DQK’s then partner. DQK became agitated following a phone call and began yelling at the victim. Whilst attempting to calm him down he pushed the victim into a coffee table. The victim sustained an injury to her eye and police were of the view that DQK had struck her with a clenched fist. The victim was not willing to provide police with any further details and did not want DQK charged. She did not wish to make a statement nor have an AVO taken out for her protection.

58. Whilst at the premises at the time a next door neighbour approached police and told them she had been assaulted by DQK. The argument related to an incident where the victim’s boyfriend had been parking his car and DQK told him the car was parked incorrectly. The victim was approached by DQK where he placed his whole hand across her face and shoved her head backwards with force. She suffered a sore neck from the assault and was distressed.

59. The police returned later that night to DQK’s premises. Following a search he was found to be in possession of 3 ecstasy tablets and 4 grams of cannabis leaf.

60. DQK was convicted of the offence of common assault and two counts of possessing a prohibited drug and was sentenced to a bond under s9 of the Crimes (Sentencing) Act 1999 for two years and required to comply with all health requirements of drug and alcohol counselling. The documents indicate that an AVO was issued subsequent to these events, although it is unclear who was the protected person.

61. In an annexed schedule to the submissions of the respondent is a list of other incidents of reported domestic violence incidents. Two of these were witnessed by very young children. The first is outlined above.

62. The second occurred in relation to an incident involving DQK’s sister on 22 March 2008 when he was 32 years of age. Following the argument DQK pulled his sister’s reading glasses from her face and broke them into pieces. He scratched her face and said words to the effect ‘If you don’t have any money I’m going to smash your car up $300 worth of damage’. Two other brothers came and were involved in the incident. DQK is alleged to have pushed his mother, which he denied. He is then alleged to have come out and pushed his sister and called her ‘a fat bitch’. The documents indicate his sister’s three year old son witnessed the event and ran outside crying. An AVO was obtained and granted at the request of his sister.

63. In February 2009 DQK was charged with a public nuisance offence arising in Queensland. He was fined $700 but no conviction was recorded. There was no information contained in the documents in relation to this incident.

64. In cross-examination DQK denied that he hit his girlfriend and said they fell over and broke a coffee table. We are unable to make a positive finding that DQK hit his girlfriend, but accept there was a physical struggle.

65. DQK agreed to the version of events relating to his neighbour and grabbing her on the face and pushing her. When asked questions about children having potentially witnessed the references to domestic arguments, he agreed that they probably did so. When asked the question about what he thought about this today he said ‘It is unacceptable and not a good look for a child to be seeing this.’

The age of the person at the time the offences or matters occurred

66. At the time of the disqualifying offence DQK was 20 years of age. His most recent offence of nuisance, in relation to which no conviction was recorded was in February 2009 when he was 33 years of age.

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

67. When the disqualifying events occurred the victim was aged 19 years.

68. Apart from two young children who witnessed altercations in a domestic setting, each of the other victims were adults.

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

69. The difference in age between the victim and DQK at the time of the disqualifying offence is 5 months. DQK and the victim were not known to each other.

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

70. This is not relevant.

The person’s present age

71. DQK is 43.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred

72. DQK has been charged and convicted of a number of offences, including offences involving violence against persons and property. Some of the offences have led to AVOs following. These offences are in addition to the disqualifying offence. For the last 10 years, there is no record of DQK committing any offence or being the subject of a complaint to police.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

73. DQK has filed a report of general Psychologist, Mr Zane Danesi. Mr Danesi has treated DQK for symptoms relating to depression and alcohol use in 2018 to 2019.

74. DQK has the sole custody of his son following becoming aware that his ex-partner was using drugs in the house when she had parental access. Mr Danesi’s report sets out past and ongoing counselling and other efforts DQK has made to assist in changing his dysfunctional behaviour. Mr Danesi in his report makes the following conclusion with respect to DQK ‘does not pose a threat to minors’:

During the time that I have been counselling [DQK] this has never been the issue. It is my view that if required he would be a protector of children, and adolescents as demonstrated by the alacrity he showed in removing his child from potential harm. Therefore, it is my strong recommendation that he be allowed to continue to volunteer his services working with young people in the role of training children in the skills of Rugby League.

Any information given by the applicant in, or in relation to, the application

75. DQK relies upon the report of Mr Danesi which is set out below.

76. DQK has filed two references from persons involved in relation to him coaching Rugby League. The references are marked Exhibits A3 and A4. Each of the referees provide a very favourable account of DQK in relation to his capacity to interact with children. However, neither reference refers to the referee being aware of DQK’s past criminal history, including the disqualifying offence. However, the first referee (A3) was cross-examined and counsel for the respondent provided to the referee a summary of DQK’s history of violence and the details of the Disqualifying Offence. The referee (A4) was not available for cross-examination. Limited weight can be given to that referee.

77. In referee’s A3 cross-examination, counsel for the respondent provided a history to him in relation to the disqualifying offence and DQK’s previous criminal history. The referee said that DQK clearly had some issues a long time ago, but in his opinion that is not the person who he is familiar with now. The referee said that DQK is not a big drinker. He is heavily involved in his son’s football club. Despite the history provided to him by Counsel for the respondent ‘I think he is a very different person now’.

78. Counsel for the respondent cross-examined the referee about the binge drinking culture in football. The referee said that this culture is old school and that more focus is put on fitness and doing good things for the community rather than drinking and carrying on.

79. We accept the supporting reference of the referee (A3) and have taken it into consideration as a factor in finding that DQK does not pose a risk to the safety of children.

The report of Mr Danesi

80. DQK relies on the report of Mr Danesi which is referenced above. Mr Danesi explains the following in relation to DQK’s history:

Grew up in an atmosphere where there was some domestic abuse from his father towards his mother. While he struggled academically at school he excelled as a Rugby League player, and as part of his development he became engrossed in the Rugby League culture which in his district included party drugs, and binge drinking.

81. Mr Danesi considered, following therapy sessions with DQK that most of his significant problems stemmed from anger issues and poor impulse control. Most of these matters were fuelled by excessive alcohol use, low self-esteem and cognitive distortions relation to his female partner relationships.

82. Mr Danesi confirmed in his report that in April 2018 DQK reported to his doctor:

He is having relationship problems due to excess alcohol intake, and binge drinking and subsequent aggressive behaviour towards his girlfriend of 3 years. This is a recent breakdown in their relationship. He has trust issues in close relationships.

83. Mr Danesi refers to DQK as having a background of taking party drugs and consuming large amounts of alcohol in the context of a binge drinking culture at the football club. Particularly he notes ‘He is essentially a good person who feels remorse, and is motivated to improve his behaviour.’

84. In Mr Danesi’s report it is recorded that on 31 May 2019 DQK presented with a euphoric mood and congruent effect. He reports:

Over the past 12 months there has been a significant improvement in his emotional, and mental state. After collaboratively exploring the roots of DQK’s anger he became more aware of his triggers, which were largely related to cognitive distortions, excessive alcohol use, issues to do with trust, and poor self-esteem. DQK is more insightful and reflective about his thoughts, moods, and behaviours, and he has learned techniques to better regulate his emotions. Furthermore DQK now describes himself as a social drinker without the excesses of the past. He said that he is in control of his drinking, and as a result his relationships with women has improved significantly. For example, over the pat [sic] year he said that he has met two ladies with whom he dated. He told me he was able to demonstrate an attitude of respect towards them, and maintain appropriate boundaries. … therefore, DQK is well into the maintenance stage of chance where he is consciously working to prevent relapse occurring. DQK’s focus and goal is to improve his employment opportunities, and if necessary undergo more training. He said that he is considering training to be an ambulance officer. He said he is very much involved in his son’s development.

85. Mr Danesi was cross-examined by Counsel for the respondent. He explained that DQK has insight into his previous behaviours such that he knew he had a problem with alcohol and needed help. Mr Danesi was specifically asked questions about what evidence has led to the conclusion that DQK is in the maintenance stage of recovery. Mr Danesi said that DQK can reflect in the moment when he is frustrated. Not after the event. When frustrations come up and an impulse to be angry he can reflect and pull himself back. This is a significant improvement in his ability to cope with his previous aggressive behaviour. He further said that DQK used to look at his own needs but now he looks at others’ needs. He does not have black and white thinking as he used to. He has grown tremendously in 10 years. He is no longer taking drugs, consuming excessive alcohol and has maintained his ability to look after his child over this period. Mr Danesi said there has been a shift in his behaviour and if he does relapse a little it will not be great.

86. Mr Danesi said that DQK’s relationships with women has been more respectful. He can move on with his own life. Mr Danesi denied that DQK was an alcoholic as he does not have cravings and is not consumed with alcohol. An alcoholic cannot abstain. In Mr Danesi’s opinion DQK can drink socially and stop. His drinking was induced by low self-esteem and depression.

87. When asked what sort of percentage a likelihood of relapse could be relevant to DQK, Mr Danesi said in terms of drug taking he has well consolidated and will never do this again. With respect to alcohol, he may have 3 drinks or perhaps 6 but in Mr Danesi’s opinion he could not envisage him to be rolling around drunk. He said ‘I think he has stabilised and is not a risk’. Mr Danesi stressed that DQK is no longer part of playing rugby and the drinking culture. He has moved his attentions to become a mentor and a coach for young men.

88. Mr Danesi was an impressive witness. Despite a robust cross-examination his opinion was not unchanged. We accept Mr Danesi’s evidence and his conclusion that DQK does not pose a threat or risk to the safety children.

Any other matters that the Children’s Guardian considers necessary

89. The respondent refers to relevant incidents and events and various forms of counselling and psychological treatment DQK received which includes conditions of sentences. The respondent refers to DQK participating in anger management programmes, attending 7 sessions with Psychologist Lorraine Langeford and attending drug and alcohol counselling sessions with Mr Danesi.

90. Following a home invasion in December 2006 DQK sustained a knife attack injury. As a result of this he has suffered PTSD symptoms for some time of which he has obtained psychological and drug treatment.

Our Consideration

91. As at the time of the Disqualifying Offence DQK was 20 years of age. He is now 43 years. DQK has only been charged with one disqualifying offence which in our view, whilst serious, is at the lower end of the scale in terms of severity. The offence occurred when DQK was young, immature and where his behaviours were significantly affected by consumption of excessive alcohol. We accept that the incident occurred given the uncontested guilty finding made by the Local Court of New South Wales. DQK has addressed the precursor to such behaviours being the consumption of excessive alcohol. According to the evidence of Mr Denesi, which we accept, counselling and support has greatly assisted DQK in positively managing how he deals with stressful encounters. DQK’s now mature way of conducting himself is markedly different to him resorting to violence as evidenced in his past. DQK’s love and willingness to change to be the best role model for his son was particularly evident.

92. We have considered the respondent’s neutral position in terms of whether DQK poses a real and appreciable risk to the safety of children and whether the presumption that he is a risk to children has been rebutted.

93. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks that may be posed to children. The paramount principle under the Act requires the protection of children, particularly from child abuse, is the main focus, however, it is not the only factor that must be considered.

94. We find DQK has significantly turned his life around when compared to an examination of his behaviour which is recorded in the facts and circumstances of various incidences when he was aged between 20 to 30 years. We accept the evidence of Mr Danesi that DQK has been seeking counselling and addressing his past behaviours and the way in which he responds to conflict or stressful situations. The evidence shows that DQK has been successful in this regard. We have also taken into consideration that DQK has not come to the attention of the authorities for over 10 years concerning any reported events similar to those in his past.

95. DQK demonstrated considerable insight into his violent history and satisfied us that he is able to address future stressful situations with the assistance of ongoing strategies learned through counselling. He no longer consumes excess alcohol and acknowledges that in doing so his decision making and behaviour is affected. DQK’s oral evidence was consistent with the cross-examination of the referee A3 which in our view is a persuasive factor.

96. In all the circumstances, on the balance of probabilities, taking into account each of the considerations required under s30(1) of the Act, and having regard to the material before the Tribunal, it is concluded that DQK does not pose a real and appreciable risk to the safety of children. The evidence establishes that DQK has discharged the onus of as set out in s27(7) of the Act.

Section 30(1)(A) considerations

97. We have considered the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73.   The case of CHB v Children’s Guardian  [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

98. We accept and have taken into consideration the evidence of DQK and the character references to the extent which is set out above. We have considered the police facts which relate to the disqualifying offence. DQK pleaded not guilty to those facts but was convicted of the offence at trial. We have considered the time which has elapsed since the Disqualifying Offence took place, and, DQK has not been the subject of any similar or other offences since. DQK’s history of violence and domestic related matters must also form part of the factual matrix when taking into consideration the risk DQK may pose to the safety and wellbeing of children. In having this information before them, we find a reasonable person would allow his or her child to have direct contact with DQK that was not directly supervised by another person while DQK was engaged in any child related work.

99. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

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

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

100. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that DQK’s right to follow his ambition of a volunteer, contrasted with the protection of children, are in this instance complementary and in the public interest. DQK is performing a positive and valuable role coaching juniors in rugby league and also being a good role model for his teenage son. Such activity would not pose an unjustified risk to the safety of children.

101. DQK should receive a Working with Children Check clearance.

Orders

102. The order of the Tribunal is that:

1. It is declared DQK is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of an indecent assault contrary to s 61L Crimes Act 1900 (NSW) entered on 7 February 1996 at the Byron Bay Local Court.

2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 16 November 2018 is granted.

3. The Children’s Guardian is to grant a working with children check clearance to DQK pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

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

Registrar

Amendments

17 January 2020 - Counsel for Respondent typographical error corrected.

Decision last updated: 17 January 2020