DYX v Children's Guardian

[2020] NSWCATAD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DYX v Children's Guardian [2020] NSWCATAD 45
Hearing dates:	20 January 2020
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member R Royer, General Member
Decision:	(1) an order pursuant to s 28(1) of the WWC Act declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the WWC Act) in respect of the disqualifying offence. (2) an order pursuant to s 28(6) of the WWC Act that the respondent is to grant the applicant a WWCC clearance.
Catchwords:	ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of sexual intercourse with a person between 14 and 16 years of age — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CSW v Children's Guardian [2017] NSWCATAD 326 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children's Guardian [2018] NSWSC 942 GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 Secretary, Department of Justice v LMB [2012] VSCA 143 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DYX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Dr A Martin (Applicant) S Swami (Respondent)   Solicitors: Nikola Velcic & Associates (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00247842
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Summary

1. The applicant, who is referred to as DYX, applied for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The Children’s Guardian, the respondent, refused to grant a working with children check clearance (WWCC clearance) to the applicant because he was a disqualified person by reason of having been found guilty of the offence under s 66C(3) of the Crimes Act 1900 (NSW) (Crimes Act) of sexual intercourse with a person between 14 and 16 years of age (the disqualifying offence).

2. We make the following orders:

1. an order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the disqualifying offence;

2. an order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a WWCC clearance.

Background

3. On 9 October 1995, the applicant was born.

4. On 7 January 2014, the applicant obtained a WWCC clearance.

5. At the beginning of semester 1 of 2014, the applicant commenced a degree in speech pathology at a university in NSW.

6. On 30 May 2014, the applicant committed the disqualifying offence with a girl he had met online (the victim) and after being discovered by the police shortly after its commission was arrested, interviewed at Mount Druitt Police Station, charged with the disqualifying offence, and released on conditional bail.

7. On 23 June 2014, the respondent issued a notice of disqualification to the applicant.

8. On 21 November 2014, at Penrith Local Court the applicant pleaded guilty to the disqualifying offence and a good behaviour bond for 2 years was imposed with no conviction being recorded pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

9. Since the end of semester 1 of 2018, the applicant has been unable to undertake the remaining three subjects to complete the degree in speech pathology because they involve placements with children.

10. On 11 December 2018, the applicant, on making inquiries when unable to "renew" his WWCC clearance online, was informed by the respondent that it was illegal for him to work with children in a paid or voluntary capacity.

11. On 4 July 2019, the applicant applied for a WWCC clearance.

12. On 24 July 2019, the applicant was refused a WWCC clearance as he was a disqualified person because he had been found guilty of the disqualifying offence.

Procedural history

13. On 8 August 2019, the applicant commenced these proceedings against the respondent by filing an application.

14. On 29 August 2019, the Tribunal made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited.

The hearing

15. At the hearing the applicant relied on written evidence filed on 16 January 2020 including:

1. the undated statement of himself;

2. the report dated 25 November 2019 of Anita Duffy (Ms Duffy), a registered psychologist (the 25 November 2019 Duffy report);

3. three character references provided by his father, a work colleague, and his parish priest.

16. The applicant and Ms Duffy gave oral evidence. The persons who gave character references for the applicant were not required for cross-examination.

17. The respondent relied on extensive written evidence including:

1. the documents filed on 5 December 2019 (pp 1-165);

2. the documents filed on 13 January 2020 including (pp 1-8).

18. The applicant relied on part of his written submissions dated 10 January 2020 and made oral submissions.

19. The respondent relied on her written submissions dated 20 January 2020 and made oral submissions.

The evidence of the applicant

Undated statement of himself

20. In his undated statement, the applicant:

1. sets out the difficulties he faced in high school, particularly in relation to peer pressure regarding sex and his upbringing with strict parents;

2. sets out his reasons for undertaking tertiary studies in speech pathology;

3. explains the circumstances that led to the disqualifying offence:

During this time was when myself and the girl were messaging. She would manipulate me online by saying seductive things to me, things that I have never been told before and have only heard from stories during school. I was always hesitant about everything. I never truly thought about age, that thought never really occurred to me. The way she would speak to me was as if she was my age or slightly older. She sounded so confident and experienced and that was all new to me. She kept asking me to meet up with her but it wasn't easy for me. I kept delaying and delaying. One night, I felt really alone. I felt out of place. I felt really defeated with myself and all she did was just keep giving me attention. She asked me again to meet up and weakly, I agreed.

4. explains the help he has received from his parish priest and his protective strategy:

I told myself that I was not going to put myself in situations or environments where I could be weakened.

5. sets out his involvement at church which includes interactions with children but not in a Sunday school class, his work history which has included contact with children without complaint, and progress in his tertiary studies which he has had to defer due to restrictions with his remaining placements which involve children;

6. records his reflections on the the disqualifying offence and its consequences:

My restriction to work with children heavily affects me. Not just in regards to studies, future employment and church services but also on my mental health. I am thankful and forever will be thankful for the outcome I received in 2014 in court - but I still feel suffocated. I was given a two year good behaviour bond in which I did not breach. I made one mistake as a young adult in which I personally felt like I was the victim, and have now become labeled as a risk to the community. I have never hurt or upset anyone.

7. sets out the effect of not having a WWCC clearance:

Since being advised that I need to seek an appeal, everything about that night replays in my mind. I struggle to sleep. I feel so strangled by this restriction because I know I don't deserve it. I am not a risk to anyone. I am not a danger to anyone. I never have been and I know I never will be. One mistake, where I felt like I was the one being used, is not a definition of who I am. I feel like I can't ever progress in my life because of how much this suffocates me. I feel like I can't ever enter a relationship because of this. I feel like I can never have a family of my own because of this. This restriction. This label. It's giving myself a false image in the eyes of the law. I was given a Section 10 because of my innocence.

The letter dated 23 September 2019 of the applicant’s solicitors

21. In their letter dated 23 September 2019 to the respondent’s solicitors, the applicant’s solicitors note the agreement not to approach his current employer given he finds “the entire criminal charge both out of character and extremely embarrassing". They state his employment history, that neither his current nor previous employment involved any direct contact with children, and that he has never been the subject of any complaints, disciplinary proceedings or risk assessments in the course of his current or previous employment, or in the course of his employment with any community and/or voluntary organisations.

Oral evidence of the applicant

22. In evidence in chief, the applicant explained in stating “I was given a Section 10 because of my innocence” he was conveying his conduct was “out of his mind set or nature”, not that he was innocent of the disqualifying offence.

23. In cross-examination, the applicant:

1. explained in stating “She would manipulate me online by saying seductive things to me” he was conveying that the victim changed the way he thought;

2. explained in stating “I made one mistake as a young adult in which I personally felt like I was the victim” he was conveying that the police made him feel bad;

3. said he understood the age of consent for sexual activity is 16 years and that he knew he was doing wrong when he committed the disqualifying offence;

4. said he meets children at church, but otherwise does not go out of the way to meet children;

5. said he could meet children without having any sexual interest because he was more mature;

6. said that he does not speak to anyone under the age of 16 years when online.

24. In answer to our questions as to the effect of the disqualifying offence on the victim, the applicant said he hoped that she had not struggled too much; he had wanted to apologise to the victim, but had not done so on legal advice. He explained that if in the future he was depressed he would not do something he would regret because he had more control.

The 25 November 2019 Duffy report

25. In the 25 November 2019 Duffy report, Ms Duffy:

1. sets out her qualifications and experience;

2. sets out the sources of her information, being her interview with the applicant and documents received from the applicant;

3. sets out her observations of the applicant’s presentation and engagement:

He was emotional and tearful at times, and his mood was sombre. He has never forgiven himself for the moral transgression that led to his arrest and charge in 2014, and continues to be condemning and harshly judgemental of himself. He still feels guilty and ashamed of what he had done and since this incident, has remained celibate and aversive to any sexual contact, until his marriage. However, his restriction of his social environment to avoid romantic involvement is a cause of some concern a* he appears isolated and depressed.

4. states that she applied the Personality Assessment Inventory (PAI) and the following risk assessment tools: Static-99R, Stable 2007, and Structured Assessment of Protective Factors (SAPROF);

5. sets out the information received from the applicant in relation to his background, educational and employment, community activities, health and habits, drugs and alcohol, psychosexual history, and the disqualifying offence;

6. records the results of the PAI completed by the applicant:

The scale scores reflect a person with marked anxiety and tension; he may be uneasy about his personal relationships some of which are a source of his current distress and may be responding by becoming socially withdrawn. The disruptions in his life have left him uncertain about his goals and priorities and tense and fearful about the future.

7. sets out an explanation and the results of the Static-99R:

[The applicant’s] total score was 3 based on factors of his age. having no lover for at least two years, and unrelated victim. This placed his level of risk in category III, in the Average range.

8. sets out an explanation and the results of the Stable 2007:

At the time he committed the offence. [The applicant’s] dynamic factors may have been difficulty in sexual self regulation including sexual preoccupation, as he had described his circumstances. Now there are no dynamic risk factors that may lead to sexual reoffending, especially with females younger than 16.

9. sets out an explanation and the results of the SAPROF:

Based on these protective factors, [the applicant’s] risk of sexual recidivism is minimal. He has strengths in internal, motivational and external factors: he has strong links to the community particularly his [name omitted] Church, he has stable employment, he has goals for his future and he has a very strong moral compass in regard lo especially sexual relationships. After the experience of his arrest and the shame and guilt that followed, he has exerted strong controls over his behaviours which have been reinforced by the teachings of his church.

10. expresses the following conclusions:

[The applicant’s] presentation at our session, the history he gave and results of a comprehensive personality questionnaire indicate a young man who exhibits symptoms of Post Traumatic Stress Disorder as well as anxiety and depression, which have occurred in response to his sex offence, arrest and charge which occurred in 2014.

…

… As the psychologist Sam Borenstein suggested in his report, [the applicant’s] psychosexual age was no greater than a 14 or 15 year old at the time of the offence, in terms of his naivety and lack of experience.

…

Having assessed [the applicant’s] risk of sexual re offending, I am of the opinion that he shows an extremely low risk, especially when dynamic and protective factors are taken into account. He has the ability to exercise strict controls over his behaviour and has aspired to be a good Christian and an active member of his church congregation.

In my opinion, there are no issues of concern that would preclude [the applicant] from working with children. There are no dynamic or static risk factors that pose problems for working with children, his risk of reoffending is reduced further by being more than five year's free of any charges, and there are numerous protective factors that lower risk of sexual offending. There should be no impediment to his gaining a Working with Children Clearance.

Oral evidence of Ms Duffy

26. In evidence in chief, Ms Duffy explained and elaborated upon the 25 November 2019 Duffy report.

27. In cross-examination, Ms Duffy said that:

1. the applicant would not engage in the same conduct as in the disqualifying offence;

2. she was concerned about the applicant’s aversive behaviour because it is necessary to get involved in a relationship before he could marry. Avoidance was not always the best strategy. He would have issues in having relationships with adult women unless he changes. She was not sure how he would break the cycle and he may need some help to do so;

3. as to protective factors, the applicant understood about the age of consent to sexual activity, and now understand oral sex is considered part of sexual activity.

28. In answer to our questions, Ms Duffy said that if the applicant was stressed in the future he would not let himself get into the situation that led to the disqualifying offence. She was confident that as a speech therapist he would keep professional boundaries.

Character references

The father of the applicant

29. In his letter dated 16 October 2019, the father of the applicant explains that the disqualifying offence taught the applicant important life lessons and has caused him to become more mature.

The work colleague of the applicant

30. In his undated letter, the work colleague of the applicant attests to his high level performance as an employee.

The parish priest of the applicant

31. In his letter dated 7 September 2019, the parish priest of the applicant considers the applicant's involvement in the disqualifying offence to have been out of character, and him to be a valuable role model for the younger generation.

The evidence of the respondent

The documents filed on 5 December 2019

32. The documents filed on 5 December 2019 comprise:

1. documents of the respondent created before and in dealing with the applicant’s application for a WWCC clearance;

2. the applicant’s AVO and criminal history;

3. documents provided by Mount Druitt Police Area Command, NSW Police Child Abuse and Sex Squad, and Penrith Local Court in response to an assessment notice under s 31(1) of the WWC Act;

4. the transcript of the hearing at Penrith Local Court on 21 November 2014;

5. documents produced under summons by Relationships Australia.

The interview of the applicant at Mount Druitt Police Station on 30 May 2014

33. As recorded in the transcript of his interview at Mount Druitt Police Station on 30 May 2014, the applicant relevantly:

1. did not appear to be aware of the legal definition of "sexual intercourse", the unlawfulness of engaging in sexual activity with a person under the age of 16, or the significance of consent for a person under the age of 16. He said, "I just thought it was sexual intercourse to be honest, if it's 16" and that he had not engaged in sexual intercourse with the victim because "I partook in something like this, but at the same time I'm still a virgin”. The reason why the victim's age had concerned him was because she was three to four years younger than him, which he regarded as being a considerable age difference;

2. said that when an opportunity to be with a girl presented itself, "you don't think about her age when you do it, you think about the advantage you 're gonna get";

3. said that he knew speaking to the victim in a sexualised manner was wrong due to their age difference and his religious views. He explained that he would regret speaking to her after every occasion on which they conversed but "then the next day when I start talking to her again it's, its like I want to do it again". Similarly, he explained that he was considering calling off their meeting on 30 May 2014 but, "at the same time I wanted to do it for experience 'cause I've never done anything like that before";

1. stated that he experienced an emotional breakdown after he and his girlfriend of three years broke up. He explained that he wanted to "take the opportunity" with the victim as she was the only girl who had showed any interest in him since and he was desperate for contact with anyone. As she appeared to be much more sexually experienced than he was, he did not feel like he was speaking to a child. He was instead overcome by the possibility of experiencing new things with her;

2. reported that he felt he missed out on a lot of experiences arising out of relationships and sex that his new university peer group were discussing which made him feel out of place;

3. did not appear to have conducted himself in a predatory manner towards the victim but explained that he was guided by her as a result of his sexual inexperience. He said, "I felt like I didn't know what I was doing. I, she, made the first move, she obviously was so much more confident than I was, and I even told her before I came, told her I'm frickin' nervous, I don't, I've never done anything like that before";

4. stated that he had been talking to a few other girls at the time but none, other than the victim, was under the age of 16.

The statement dated 30 May 2014 of the arresting police officer

34. In his statement dated 30 May 2014, the arresting police officer relevantly said:

1. when he first spoke to the victim, she said, "Please I don't want to get him in trouble, just let him go";

2. when he was arresting the applicant, the victim approached him and said, "Please officer, he's still a virgin, we didn't have sex, we were just messing around and "dry humping" each other”;

3. when he asked the victim whether the applicant had given her anything, drugs or otherwise, she said, "No, I didn't take anything, he picked me up and drove me here, we 're friends, I did it cause I wanted to he didn't force me or anything, he's a friend".

The hearing at Penrith Local Court on 21 November 2014 in relation to the disqualifying offence

35. At the hearing at Penrith Local Court on 21 November 2014 in relation to the disqualifying offence, the following agreed facts on sentence were tendered:

1. The 14 year old complainant (DOB: 09/11/1999) and 18 year old accused (DOB: 09/10/1995) met online in early 2013 when the complainant was 13 years old. The pair conversed with one another through various social media sites and a number of those conversations developed into sexually explicit discussions. During these initial conversations, the complainant informed the accused that she was 14 years of age. Concerned with her young age and the stress of completing his Higher School Certificate, the accused ceased contact with the complainant after a few months.

2. In early 2014, the complainant initiated online contact with the accused and the pair began having sexually explicit conversations with each other via a number of social media sites including Facebook. The accused told the complainant that he didn't believe in sex before marriage and was sexually inexperienced. At this time the complainant disclosed that she was 14 years old and was only 13 when they initially began talking online.

3. In the week commencing 26 May 2014, the accused and complainant began making arrangements to meet in person. They talked about having a sexual encounter on Friday, 30 May 2014. The complainant suggested she choose a suitable private location given her local knowledge, for the pair to engage in the sexual acts. The accused made it clear that he didn't want to have sexual intercourse with her because of his religious beliefs but was willing to try other sexual experiences.

4. At about 5:45pm on Friday, 30 May 2014, the accused drove a blue Toyota RAV4 bearing [registration number omitted], to the pre-arranged meeting point with the complainant at [location omitted]. The complainant entered the accused's vehicle and gave him directions from [location omitted] to [location omitted].

5. [Location omitted] is a dead end street bordering on a semi-rural/residential area of [location omitted]. The street is partially lit by street lighting, but carries limited traffic due to it being closed at the eastern end.

6. The accused drove east along [location omitted], before getting to the end and conducting a 'U turn', stopping the vehicle on the southern side of the roadway, facing west. The accused and the complainant climbed into the back seat of the vehicle and moved the front passenger seats forward to give them more room in the back.

7. After talking for a short time, the accused and complainant commenced kissing, cuddling and heavy petting. The complainant removed all of her clothing except her underpants and the accused removed his shirt and pulled down his tracksuit pants. The complainant commenced stroking the accused's penis whilst kissing him. The accused fondled and kissed the complainant's breasts. After a short time, the complainant placed the accused's penis into her mouth and performed fellatio on him for about five minutes before he ejaculated in her mouth. The complainant swallowed the semen and continued to kiss and cuddle with the accused.

8. A short time later, a highway patrol officer drove along [location omitted] and sighted the accused's vehicle parked in the darkness. The officer stopped his patrol car and saw the fogged windows and naked body of the accused move quickly from the back seat of the vehicle to the front. The officer approached the vehicle and sighted the complainant naked and attempting to hide herself behind the front passenger seat. The pair were told to get dressed and exit the vehicle. The police officer requested identification from the accused and complainant. The complainant gave police a false dale of birth, but police checks revealed that she was only 14 years old.

9. The accused was cautioned, placed under arrest and conveyed to Mount Druitt Police Station where he was entered into custody. A Crime Scene was declared and Detectives summoned to the location. Detectives spoke briefly to the complainant who admitted to engaging in fellatio with the accused. She was conveyed to Mount Druitt Police Station, before being taken to Westmead Children's Hospital for a SAIK examination.

10. An initial search of the vehicle located personal items belonging to the complainant and the accused. A check of the accused's mobile phone's 'Facebook' site revealed extensive, sexually explicit conversation between the pair leading up to this incident.

11. Having been explained his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, the accused participated in an electronically recorded interview with police and made full and frank admissions to engaging in consensual sexual intercourse (fellatio) with the 14 year old complainant. The accused conceded what he had done was wrong, but was overwhelmed with emotion and excitement with the opportunity for his first sexual encounter. The accused was apologetic for his behaviour and displayed deep remorse for his actions.

12. The accused consented to a forensic procedure and his vehicle was towed to a holding yard for forensic examination.

13. The complainant was interviewed by police and provided a similar version of events to that given by the accused during his interview. The complainant told police that she performed fellatio on the accused. She told police that this was the first occasion the pair had met and they had discussed what sexual acts they were going to undertake. The complainant told police that the accused was sexually inexperienced and made it clear that he did not want to have sexual intercourse (penile/vaginal) with her because he was saving himself for marriage.

36. The applicant relied upon a report dated 28 August 2014 of Sam Borenstein (Mr Borenstein), a consultant clinical psychologist (the 28 August 2014 Borenstein report) which relevantly includes the following opinions:

The offence which brings [the applicant] before the Court stems from sexual suppression and lack of opportunity/permission for [the applicant] to express sexuality as he as subject to very strict religious doctrine.

…

In summary, [the applicant] did not groom or initiate the behaviour which brings him before the Court. [The applicant] is not a sexual predator. [The applicant] was functioning at a very similar psychosexual age as that of the victim's chronological age. [the applicant’s] psychosexual age would have been no greater than of a 14 or 15 year old at the time of the offence.

37. Magistrate Van Zuylen relevantly made the following sentencing remarks:

The Court must weigh up the seriousness with which the community views this sort of behaviour. [The applicant] fully knew her age yet went ahead or went along with what was going on with the sexual intercourse that took place. The Court has given very serious consideration to convicting him. … The Court is however on balance persuaded that given his prior background it was a very bad mistake that you made. A very serious criminal offence.

You made a very bad decision. You committed a criminal offence. It is not a matter of her consent or participation in it that excuses your actions and the community accepts that 18 year old men even given the circumstances, your relative inexperience in this sort of matter and naivety to some extent but you are responsible for actions, it is your responsibility to not engage in it, not seeking to blame the others and the Court does not accept that you are blaming her. However the Court will deal with it as submitted for the reasons that [name omitted] has outlined. It was one area and you did own up to it. You pleaded guilty. ..(not transcribable).. and there are a number of reasons why this is a case where the Court will deal with it pursuant to s 10.

The documents filed on 13 January 2020

38. The documents filed on 13 January 2020 comprise:

1. documents of the respondent relating to the applicant’s previous application for a WWCC clearance;

2. correspondence between the respondent’s solicitors and the applicant including the letter dated 23 September 2019 of the applicant’s solicitors.

The submissions of the applicant

Written submissions

39. In his written submissions dated 10 January 2020, the applicant relevantly addresses the factors in s 30(1) and (1A) of the WWC Act, including referring to the 25 November 2019 Duffy report, and drawing attention to the character reference of his parish priest.

Oral submissions

40. In his oral submissions, the applicant responded to the written submissions of the respondent. The applicant submitted that the Tribunal would be satisfied on the balance of probabilities that the applicant does not pose a risk to the safety of children having regard to the applicant’s increased understanding and protective strategies, and the evidence of Ms Duffy. A reasonable person will have seen enough changes in his personality and behaviour to allow his or her child to have the kind of direct contact with him referred to in s 30(1A)(a) of the WWC Act. Because he has something to offer the community in the church and as a speech therapist it is in the public interest for him to have a WWCC clearance within s 30(1A)(b) of the WWC Act.

The submissions of the respondent

Written submissions

41. The respondent in submissions dated 20 January 2020 opposes the application on the basis of the evidence then before the Tribunal, and sets out the legislative framework, and addresses threshold Issues and the matters in s 30(1) and (1A) of the WWC Act. The applicant's remarks and Ms Duffy's observations in the 25 November 2019 Duffy report call into question:

1. whether Ms Duffy considers the applicant has resolved issues related to his sexual expression, particularly in light of Mr Borenstein's observations in the 28 August 2014 Borenstein report;

2. whether the applicant has equipped himself with the necessary skills to conduct himself appropriately in a variety of social settings, particularly in light of his sexual immaturity, and his view that being emotionally close to someone can lead to sexual behaviour.

Oral submissions

42. In her oral submissions, counsel for the respondent substantially repeated the written submissions of the respondent and:

1. submitted the applicant had not rebutted the presumption that he poses a risk to the safety of children by reason of the following questions as to whether the applicant has:

1. sufficient insight into why his conduct in relation to the disqualifying offence was inappropriate and contrary to law,

2. the ability to maintain relationships with children and adults without fear of being tempted into violating personal boundaries and/or engaging in sexual activity; and

3. has resolved issues relating to his sexual immaturity and sexual expression;

2. in response to our question, said that the 25 November 2019 Duffy report and the findings of Ms Duffy are not challenged.

Relevant legislation

The WWC Act

43. Part 1 (which is comprised by ss 1-5C) deals with preliminary matters, and relevantly provides that:

1. the object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3;

2. the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act”: s 4;

3. the word “conviction” includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction: s 5(1);

4. the expression “risk to the safety of children” means “a real and appreciable risk to the safety of children”: s 5B.

44. Part 3 (which is comprised by ss 12-25) deals with WWCC clearances, and relevantly provides that:

1. a person may apply to the respondent for a WWCC clearance: s 13(1);

2. a person whose WWCC clearance is cancelled under s 23 is not entitled to make a further application for a WWCC clearance until 5 years after the date notice of the cancellation was given to the person: s 13A(1)(a);

3. the respondent is not permitted to grant a WWCC clearance to a person, who is referred to as a “disqualified person”, convicted of an offence specified in Schedule 2 to the WWC Act, if the offence was committed as an adult: s 18(1)(a). The offence of sexual intercourse with a person between 14 and 16 years of age under s 66C(3) of the Crimes Act is specified in cl 1(1)(h) of Schedule 2;

4. the respondent must cancel the WWCC clearance of a person if the respondent becomes aware that the person is a disqualified person: s 23(1).

45. Part 4 (which is comprised by ss 26-30) deals with reviews and appeals, and relevantly provides that:

1. the Tribunal may, on the application of a disqualified person, make an order, which is referred to as an “enabling order”, declaring that the person is not to be treated as a disqualified person for the purposes of the WWC Act in respect of an offence specified in the order: s 28(1). If the Tribunal makes such an order, it may also order the respondent to grant the person the subject of the order a WWCC clearance: s 28(6);

2. an applicant must fully disclose to the Tribunal any matters relevant to the application: s 28(5);

3. 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: s 28(7);

4. when determining an application under Part 4, the Tribunal is to have regard to the following matters which are set out in s 30(1):

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

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children’s Guardian considers necessary.

5. the Tribunal may not make an order under Part 4 which has the effect of enabling a person (called “the affected person”) to work with children in accordance with the WWC Act unless the Tribunal is satisfied of the following matters which are set out in s 30(1A)(a) and (b):

(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.

46. Part 5 (which is comprised by ss 31-36B) deals with the provision of information to the respondent, and relevantly provides that the respondent may, by notice in writing, which is referred to as an “assessment notice”, require any person to provide the respondent with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children: s 31(1)(a).

Applicable legal principles

47. As indicated in the objects in s 3 and s 4 of the WWC Act, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature. That is, the object of the WWC Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 (FZ) at [61] in respect of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (CPPE Act).

48. The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU at [35]; FZ at [61] in respect of the former CPPE Act.

49. The definition under s 5B of a “risk to the safety of children” draws upon the explanation given in relation to the word “risk“ as it appeared in the former CPPE Act of “whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 (V) at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 (CJT) at [40].

50. In CJT, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in V at [42] have “been consistently applied in construing the concept of a ‘risk to the safety of children’ for the purposes of ss 27 and 28 of the Working with Children Act”. In BKE (a case concerning an application for an enabling order), Beech-Jones J at [26] referred to the meaning of “risk to the safety of children” in s 28(7) of the WWC Act and said that this was to be understood by reference to the comments of Young CJ in Eq in V at [42]. His Honour at [28] also said that “the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children”.

51. Section 28(7) does not permit a calibrated assessment of the risk posed to the safety of particular children. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area": BKE at [4], [27].

47. 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 in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] 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.

48. The Tribunal may not grant an enabling order unless "satisfied" of the matters referred to in s 30(1A). That requires, at a minimum, that the Tribunal has made up its mind reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].

49. The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal, which is a person privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].

50. In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitted):

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children) have their suitability to do so checked by a government body'.

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

56. In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child.

57. In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] 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.

58. In ZZ at [202] Bell J referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said:

[203] In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.

59. In FZ, Young JA at [67]-[68] expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]–[84] that the applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.

60. It has been observed that it is difficult to envisage how the Briginshaw standard applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in the Tribunal that pursuant to s 38(2) of the CAT Act is not required to apply the rules of evidence: BKE at [29].

Jurisdiction

61. We are satisfied that the Tribunal has jurisdiction under s 28 of the WWC Act to decide whether to make an enabling order in favour of the applicant.

Conclusions

Assessment of the evidence of the applicant

62. We find the applicant to have been a truthful witness. It was clear from the content and manner of his evidence that the disqualifying offence has had a substantial adverse impact on his life.

63. We have some concern that the applicant has sufficient insight into his offending because, while accepting he engaged in premeditated sexual intercourse in the nature of fellatio with the victim, he did not appreciate her vulnerability. The fact that she was sexually experienced is indicative of her vulnerability. He, nonetheless, did have some recognition of the victim’s vulnerability.

64. We are satisfied that the applicant wishes to contribute to the community by working as a speech therapist and serving in his parish church including teaching children in Sunday school.

Consideration of the factors in s 30(1) of the WCC Act

65. We have set out below our findings as to the factors in s 30(1) of the WCC Act (other than the factor in s 30(1)(j1) which is inapplicable).

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

66. The disqualifying offence is objectively serious, carrying a maximum penalty of ten years' imprisonment: Crimes Act, s 66C(3). The sentencing remarks of Magistrate Van Zuylen and his imposition of a good behaviour bond for 2 years with no conviction being recorded pursuant to s 10(1)(b) of the Sentencing Act indicate the offending to have been at the lower range of seriousness.

67. However, it is important to recognise that the applicant did not coerce or otherwise engage in predatory behaviour towards the victim, and was immediately remorseful for his conduct.

68. The disqualifying offence occurred five years and eight months ago. The applicant has not reoffended and has not been charged with any criminal offences since that time.

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

69. The disqualifying offence occurred when the applicant was 18 years old. The victim was 14 years old, and was vulnerable because of her young age. The difference in age between the applicant and the victim was four years. They met online in 2013, and spoke on and off until the night of the disqualifying offence on 30 May 2014 when they met in person for the first time. The applicant is now 24 years old.

The seriousness of the applicant’s criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(h-i))

70. The applicant has no criminal history other than the disqualifying offence. He has not been charged with any criminal offences since the disqualifying offence.

71. Since the disqualifying offence the applicant has received counselling and pastoral support. He attended three sessions with a counsellor at Relationships Australia in July 2014. He has continuously received pastoral support from his parish priest.

72. We are satisfied that there is an extremely low risk of sexual reoffending by the applicant. We regard the applicant’s strategy of avoiding contact with adult women to avoid the temptation of violating personal boundaries and/or engaging in sexual activity stemming from his religious convictions as being irrelevant to the question of whether he poses a real and appreciable risk to the safety of children.

73. We accept that if there was any repetition by the applicant of conduct in the nature of the disqualifying offence it would be likely to have an adverse impact on that victim's long term physical and mental wellbeing.

Any order of a court or tribunal that is in force in relation to the person (s 30(1)(i1))

74. There is no evidence to suggest there are any orders of a court or tribunal in force in relation to the applicant.

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

75. The undated statement of the applicant contained some language that appeared to place blame on the victim and to assert his innocence. However, we are satisfied from his oral evidence that the applicant did not appreciate the apparent meaning of what he had said, and did not intend to convey either the victim was to blame or that he was innocent of the disqualifying offence.

76. We place no weight on the character reference provided by a work colleague of the applicant because it is not on the employer’s letterhead, is undated, is unsigned, and does refer to the disqualifying offence.

77. We place some weight on the character references provided by the father and the parish priest of the applicant because they are clearly aware of the disqualifying offence.

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

78. We do not consider that the three matters raised by the respondent, being the applicant’s insufficient insight in relation to the disqualifying offence, his approach to relationships with children and adults, and his unresolved issues relating to his sexual immaturity and sexual expression, demonstrate that the applicant poses a risk to the safety of children for the following reasons:

1. as to his insufficient insight in relation to the disqualifying offence, he now understands the legal definition of sexual intercourse and the age of consent for sexual activity;

2. as to his approach to relationships with children, the applicant does not intend to have contact with children outside his intended profession as a speech therapist and his involvement in his parish church, and has no contact with children on social media. If the applicant had contact with children outside of these parameters this would not mean that he is a risk to the safety of children;

3. as to his approach to relationships with adults, it is irrelevant to the question of whether the applicant poses a risk to the safety of children;

4. as to his unresolved issues relating to his sexual immaturity and sexual expression, the applicant’s choice to live a celibate life until marriage does not mean that he is a risk to the safety of children.

Has the applicant rebutted the presumption that he poses a risk to the safety of children?

79. Having regard to our findings, we are satisfied on the balance of probabilities that the applicant has rebutted the presumption that he poses a risk to the safety of children.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a))?

80. The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the WWC Act whether “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” is the evidence set out above.

81. Having regard to all this evidence, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:

1. the disqualifying offence did not involve coercive or otherwise predatory behaviour towards the victim, and the applicant was immediately remorseful for his conduct;

2. the applicant has no prior criminal history, and has not been charged or convicted of any other offence since the disqualifying offence;

3. Ms Duffy’s opinion is that there is an extremely low risk of sexual reoffending by the applicant;

4. the applicant’s parish priest has confidence in him.

Is it in the public interest to make the orders sought by the applicant (s 30(1A)(b))?

82. We are satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons:

1. the applicant should not be turned away from his commitment to obtain qualifications in speech pathology;

2. the applicant should be encouraged to acquire qualifications, experience and expertise for the benefit of others through working in the health sector as a speech therapist;

3. the applicant should be encouraged to use his gifts for the benefit of children through teaching children in Sunday school in his parish church.

Orders

83. We make the following orders:

1. an order pursuant to s 28(1) of the WWC Act declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the WWC Act) in respect of the disqualifying offence.

2. an order pursuant to s 28(6) of the WWC Act that the respondent is to grant the applicant a WWCC 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: 07 February 2020