DVF v Children's Guardian

[2019] NSWCATAD 206

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVF v Children’s Guardian [2019] NSWCATAD 206
Hearing dates:	18 September 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member S Davison, General Member
Decision:	1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-sexual intercourse with a child-disqualified person
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1990 (NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA at 111 Commission for Children and Young People v V [2002] NSWSC at 949
Category:	Principal judgment
Parties:	DVF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent)   Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent)
File Number(s):	2019/00120280
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

1. The Applicant, referred to as DVF in these proceedings, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.

3. The applicant, who is 24 years of age, seeks a WWCC clearance because he wishes to seek guardianship of his 14 year old younger sibling, who is currently under the guardianship of their grandmother. She is 78 years of age, has health problems and is no longer able to act as guardian for DVF’s brother. She has been recently hospitalised and DVF has been caring for her.

4. By notice dated 22 March 2019 the applicant was informed by the respondent that he is a ‘disqualified person’ by reason of his conviction on 17 April 2015 of six counts of having sexual intercourse with a child aged between 14 and 16 years of age (contrary to section 66C(3) of the Crimes Act 1990 (NSW), and contravening an apprehended violence order (AVO). Offences under section 66C (3) of the Crimes Act 1990 (NSW) are disqualifying offences under the Act (Sch. 2 cl. 1(1)(h)).

5. The victim was 14 years old when she commenced a relationship with the applicant in June 2014. In August 2014 the victim and the applicant commenced a sexual relationship. The applicant was 19 at this time. The applicant and the victim had sexual intercourse at least 3 times while she was 14 years of age and at least 3 times when she was 15 years of age.

6. The victim became aware that she was pregnant in January 2015. The police were informed and the victim provided a statement following which the applicant was arrested on 29 January 2015. The applicant admitted the offence and was subsequently served with an AVO protecting the victim. He breached the AVO by having telephone contact with the victim and was remanded in custody on 10 February 2015.

7. The applicant was also the subject of earlier allegations of sexual activity with younger female children, however was never charged with any offence.

8. On 17 April 2019 the applicant lodged an application for an enabling order from the Tribunal pursuant to section 28 of the Act.

9. In written submissions lodged on 22 August 2019, the respondent neither consented to nor opposed the application made by DVF. At the conclusion of oral evidence and prior to the Tribunal determining the matter, the respondent revised her view and supported DVF’s application for an enabling order.

The Legislative Scheme

10. The Act makes provision for the regulation of those persons who engage in or continue to engage in ‘child related work’. The objects of the Act are to protect children:

1. by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child related work to have working with children check clearances.

11. Section 4 of the 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 the Act.

12. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

13. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

14. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant WWCC clearance.

15. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid child-related work.

16. Applications for a WWCC clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused DVF’s application, as she was required to do under subsection 18(1) of the Act, because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

17. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.

18. Subsection 28(7) provides that where an application for 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”.

19. In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

20. The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:

One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely ‘to the safety of children’…

21. The Tribunal has adopted a similar meaning to the word “risk” as it appears in the current Act.

22. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a WWCC clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The evidence relied upon

23. The applicant relied upon the following documentary material:

1. Application for review filed 17 April 2019 attaching the Notice of Disqualified Person (Exhibit A1); and

2. Bundle of 3 character references filed 6 August 2019 (Exhibit A2).

24. The respondent relied upon the following documentary material:

1. Respondent’s submissions on final hearing filed 22 August 2019 (for convenience referred to as Exhibit R1);

2. First Volume of Evidence Relied upon by the Respondent filed 6 June 2019 and 10 September 2019 (Exhibit R2);

3. Second Volume of Evidence Relied upon by the Respondent filed 4 July 2019 (Exhibit R3);

4. Third Volume of Evidence Relied upon by the Respondent filed 12 July 2019 (Exhibit R4);

5. Fourth Volume of Evidence Relied upon by the Respondent filed 8 August 2019 (Exhibit R5).

The evidence presented

25. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

26. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

27. The evidence is set out below under subheadings that refer to the section 30(1) factors and section 30(1A) tests set out in the Act.

Section 30 (1) factors

(a) The seriousness of the offences

28. On 17 April 2015 the applicant pleaded guilty to, and was convicted of, six counts of having sexual intercourse with a child between 14 and 16 years of age (contrary to section 66C(3) of the Crimes Act 1990, and contravening an apprehended violence order (AVO). Offences under this section of the Crimes Act 1990 are disqualifying offences under the Act (Sch. 2 cl. 1(1)(h)).

29. In relation to the sexual offences the applicant was sentenced to 18 months imprisonment which was suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999. He was placed on a good behaviour bond for 18 months from 17 April 2015. In relation to the contravention of the AVO the applicant received a section 9 bond of 18 months.

30. On 7 February 2018 the applicant was convicted of failing to comply with his reporting obligations under section 17(1) of the Child Protection (Offenders Registration) Act 2000, having failed to inform the NSW Police that he had changed his mobile phone number. He was placed on a good behaviour bond for 2 years pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999.

31. The applicant had just turned 19 years of age at the time of the sexual offences and was in a boyfriend/girlfriend relationship with the victim who was 14 years of age when the first offence took place and 15 years of age at the time of the last offence.

32. The respondent submits in written submissions (R1, page 6) that the disqualifying offences are objectively serious, carrying a maximum penalty of 10 years’ imprisonment. The respondent also submits that all sexual offences against children are serious, but notes that although the sentencing Magistrate considered the offences to be serious, he imposed a suspended term of imprisonment, taking into account the applicant’s plea of guilty, the period he had spent on remand, his prior good character, positive references and his difficult upbringing.

33. The respondent acknowledges the applicant’s difficult upbringing, which included exposure to physical violence, drug abuse, the death of his father and being removed from his mother’s care by Family and Community Services.

34. The applicant stated under cross-examination that he was aware that having sexual intercourse with a child under the age of 16 years was against the law but that it happened because ‘we fell in love’. He stated that ‘I did the wrong thing but I couldn’t help it’. DVF said that ‘I was immature, stupid and young’ but ‘I wouldn’t take it back because I have two lovely children and a strong relationship’ (with the victim).

35. The applicant also told us about his difficult upbringing. He has eight siblings and two half-siblings and, as the oldest child, undertook the duties as the main carer for the younger children. He was subjected to serious physical punishment by his father and witnessed domestic violence and drug use by his parents. While still a child the applicant found his father’s body after he had suicided.

36. During the hearing the applicant gave evidence that he now understands the potentially harmful effect of an adult having sexual intercourse with a 14 year old and that, if he became aware of such an incident taking place, he would ‘go to the Police’.

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

37. The disqualifying offences took place approximately four years ago between August and November 2014.

38. Since that time the applicant has had one further criminal conviction for failing to comply with his obligations under the Child Protection (Offenders Registration) Act 2000.

39. The applicant told us that this conviction occurred because he forgot to inform the Police that he had changed his mobile phone number. The Police reached him on his landline and charged him because the mobile phone number they tried to reach him on had been disconnected.

40. Since the disqualifying offences the applicant has run his own business as a qualified plasterer and more recently has been caring fulltime for his aging grandmother.

41. DVF and the victim resumed their relationship once the AVO was ended and the victim reached 16 years of age. They have since had a second child and are engaged to be married. DVF’s fiancée attended the hearing and supported DVF.

42. DVF told us that the victim’s father threatened he would go to the Police unless the victim had an abortion. She did not want an abortion and therefore her father went to the Police. DVF stated that he now has a good relationship with the victim’s father, who lived with him for 10 months and against whom he ‘bears no grudge’. The victim confirmed that DVF and her father now have a positive relationship.

(c) The age of the person at the time the offences or matters occurred

43. The applicant was 19 years of age at the time of the disqualifying offences.

(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

44. The victim was 14 years old at the time of the first disqualifying offence and was 15 years old at the time of the last offence. Apart from the victim’s age, there is no evidence of her being vulnerable for any other reason.

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

45. The applicant was approximately 4 years older than the victim. The applicant asserts that he lacked maturity at the time.

46. The applicant and the victim were in a boyfriend/girlfriend relationship.

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

47. The applicant acknowledges that he was aware of the complainant’s age.

(g) The person’s present age

48. The applicant is now 24 years of age.

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

49. Other than the disqualifying offences and the breach of the AVO, the applicant has been convicted for failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 as outlined above. He received a section 9 bond for a period of 2 years from 7 February 2018 for this offence.

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

50. The respondent sets out in Exhibit R1 at page 8 a summary of the pre-sentencing report and consultation with a forensic psychologist conducted on 14 April 2015. It is stated that the report writer notes that the applicant:

… appeared to demonstrate limited insight into his offending behaviour and maintained that he was in a committed relationship with the victim. However he acknowledged he was aware his behaviour was wrong and conceded that he should not have commenced sexual relations with the victim at that stage of the relationship.

51. It is noted that the applicant was assessed as being at medium/low risk of re-offending but that he:

...did not display evidence of any of the major dynamic risk factors for sexual reoffending and that his main treatment needs were in relation to possible PTSD (Post-traumatic Stress Disorder)

Clinical psychological intervention was recommended.

52. The applicant told us that he was an angry child as a result of his upbringing and that he realised when he was about 17 years of age that he became violent as a result of smoking cannabis and decided to stop this behaviour.

53. The applicant was asked under cross-examination about an incident in 2013 when he was alleged to have been involved in sexual activity with a 14 year old girl and to have been warned by police that sexual activity with children under the age of 16 years is prohibited. The applicant stated he had no recollection of this.

54. During the hearing the applicant told us that he saw a psychologist approximately once per fortnight for a period of six to seven months after his conviction to discuss his treatment as a child and to develop strategies to manage his anger. He stated that if he was experiencing difficulty he would seek help again in the future. The applicant told us that he now rarely experiences anger and is more prone to becoming upset when confronted by challenging situations.

55. This was confirmed by the victim who told us that the applicant has always treated her well and that from the beginning of their relationship they ‘just got along great’. She said that they initially engaged in social activities such as going to the movies and that their sexual relationship was only a minor part of their relationship when she was a child. She spoke positively of DVF’s relationship with their children and told us that she has never observed any behaviours of concern. She said that ‘we were very stupid but I have no regrets’.

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

56. The applicant provided three written character references.

57. One of his referees gave oral evidence. This witness told us that he is an experienced foster carer who currently cares for two of the applicant’s siblings who are aged 8 and 12 years. He has made efforts to reunite the children in his care with their other siblings, including the applicant, with whom he has regular contact. He stated that the applicant is kind and attentive towards his children and his siblings and that he has no concerns about his parenting skills. The witness endeavours to provide a positive role model to the applicant. He has also recommended that the applicant would be suitable to provide respite care for those of his siblings currently cared for by the witness, with whom the applicant has now developed a strong relationship.

(k) Any relevant information in relation to the person that was obtained in accordance with section 36A of the Act

58. There is no such information

(i) Any other matters that the Children’s Guardian considers necessary

59. The Children’s Guardian does not consider any other matters necessary for consideration.

Section 30(1A) tests

60. In the written submission the Children’s Guardian ‘maintains a neutral position’ as to whether the reasonable person and public interest tests in section 30(1A) have been satisfied.

61. Prior to us making a determination, however, the Children’s Guardian stated at the hearing that they supported the applications made by DVF and are satisfied that the section 30(1A) tests have been satisfied.

Consideration

62. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive. The Act requires that the protection of children, particularly from child abuse, is the paramount consideration of the Tribunal.

63. Although the offences committed by the applicant are serious, the Tribunal accepts that the behaviour that took place and triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences and a reasonable period of time has passed since the offences were committed.

64. We accept the applicant’s written evidence that at the time he committed the evidence he lacked maturity and that he understands that his behaviour was wrong and that a child is unable to provide consent to sexual activity.

65. We note the view of the psychologist who conducted a forensic assessment of the applicant regarding his risk of sexual reoffending and related treatment needs prior to his sentencing hearing in 2015 (Exhibit R2 pages 223-226). She concluded that the applicant’s:

… main treatment needs are in relation to possible PTSD following the trauma of finding his father’s body…

and that,

…his risk would best be managed through clinical psychological intervention, rather than within a specific sex offender treatment programme.

66. We accepted the applicant’s evidence that he saw a psychologist regularly for a period of approximately 26 weeks to address the traumatic events of his childhood and that he would seek assistance again if he felt it to be necessary. 

67. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and there is no suggestion that the applicant has been other than open and frank and has willingly disclosed all relevant matters. The applicant presents as a young man who has overcome significant adversity in life and who has matured a great deal since committing the disqualifying offences.

68. We accepted the evidence of the victim, who is now engaged to be married to the applicant, that she has no concerns about the applicant’s behaviour in relation to children and that although she was not old enough to provide informed consent, she was not coerced into having sex with him.

69. We accepted the positive references provided, particularly the oral evidence of the referee who has a close and ongoing relationship with the applicant and the applicant’s siblings. This is in the applicant’s favour.

70. We are satisfied that a reasonable person with knowledge of the particulars of the offences committed by the applicant and the surrounding facts would allow his or her children to have direct contact with the applicant in situations where he is not directly supervised by another person while engaged in child-related work (the test under section (30)(1A)(a)).

71. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order (the test under section (30)(1A)(b)). We note that the applicant wishes to be able to assume responsibility for the guardianship of his 14 year old sibling given his grandmother’s failing health, and to be able to provide respite care for some of his other siblings. This is in the public interest.

72. We are satisfied that on the balance of probabilities the evidence does not establish that the applicant poses a real and appreciable risk of harm to children.

73. Having regard to the abovementioned factors and the material before us, in our view the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

Order

74. The order of the Tribunal is that:

1. The Tribunal declares 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).

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

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

Registrar

Decision last updated: 02 October 2019