EAA v Children's Guardian

[2020] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EAA v Children’s Guardian [2020] NSWCATAD 32
Hearing dates:	20 January 2020
Date of orders:	20 January 2020
Decision date:	29 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member Prof P Foreman, General Member
Decision:	(1)   The decision of the respondent dated 14 August 2019 to refuse the applicant’s application for a working with children check clearance is set aside. (2)   In substitution, a decision is made to grant a working with children clearance to the applicant.
Catchwords:	ADMINISTRATIVE LAW – refusal of working with children check clearance – applicant charged with indecent assault but acquitted of all charges – factors to be considered – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 DAI v Children’s Guardian [2018] NSWCATAD 308
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EAA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: AJH Law (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00284734
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 is prohibited, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

Background

1. The applicant is a male of 70 years of age.

2. On 5 December 2016 the applicant EAA was charged with three counts of indecently assaulting a person under 16 years of age. He pleaded not guilty to all the charges. The person who he was charged with assaulting was his grand-daughter and the offences were alleged to have occurred between 2012 and 2016.

3. On 30 July 2018 the applicant was acquitted of all charges in the Local Court at Penrith. The Court granted an apprehended domestic violence order to the applicant’s grand-daughter for 2 years to which the applicant consented without admissions.

4. The applicant applied to the respondent for a Working With Children check clearance on 28 August 2018 under the Child Protection (Working with Children) Act 2012 (“the CPWWC Act”).

5. On 18 October 2018 the respondent issued an Interim Bar on the applicant working with children and notified him that she proposed to conduct a risk assessment pursuant to s 15 of the CPWWC Act.

6. On 14 August 2019 the respondent refused the application for a clearance.

7. The applicant commenced proceedings in this Tribunal on 11 September 2019 seeking a review of that decision under s 27 of the CPWWC Act.

8. The hearing was held on 20 January 2020. At the conclusion of the hearing after a short adjournment we made orders setting aside the respondent’s decision and granting a clearance to the applicant. These are the written reasons for the orders which were made.

The legislative scheme

9. The object of the CPWWC Act is in s 3 which provides:

“3 Object of Act

The object of this Act is to protect children—

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.”

10. Section 4 provides:

“4 Safety, welfare and well-being of children to be paramount consideration

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.”

11. Section 5B provides:

“5B Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.”

12. Section 17 provides:

“17 Interim bars

(1)   The Children’s Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following—

(a)   engaging in child-related work,

(b)   residing on the same property as an authorised carer,

(c)   residing on a property where a family day care service is provided.

(2)   The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1)(b) or (c) pending the determination of the application or assessment.

(3)   The Children’s Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant or holder.

(4)   An interim bar ceases to have effect—

(a)   on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or

(b)   in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or

(c)   12 months after the interim bar takes effect,

whichever occurs first.”

13. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

14. Section 27 provides:

“27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

…

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

(5), (6)   (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8)   The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

(9) A stay order is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.”

15. Section 30 provides:

“30 Determination of applications and other matters

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 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.

(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.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

(3)   (Repealed)”.

16. As this is an administrative review of the Children’s Guardian’s decision to refuse to grant a clearance, s 63 of the Administrative Decisions Review Act 1997 applies. This provides:

“63 Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

The criminal charges

17. The material before the Tribunal was:

1. Documents filed by the respondent pursuant to s 58 of the Administrative Decisions Tribunal Act 1997.

2. Further documents filed by the respondent.

3. A statutory declaration by the applicant’s accountant.

4. A report by Dr Katie Seidler dated 28 June 2019.

18. The evidence before the Tribunal, which was not disputed, was that apart from one conviction for stealing in 1970, for which the applicant received a suspended sentence of one month’s hard labour, the applicant had no criminal convictions.

19. The indecent assault charges concerned incidents which were alleged to have occurred at the family home of his grandchild, on three occasions between January 2012 and August 2016.

20. The mother of the alleged victim was the applicant’s daughter and the offences were alleged to have occurred while the applicant was staying with the family at their home. The child’s parents separated in July – August 2015.

21. The mother told police that on 17 August 2016 her daughter told her she needed to tell her something and then said that “Pop has put his hand on my bottom” and when asked if this was outside her clothing said “No in my pants.”

22. In her first interviews with the police, the child said that the first incident had occurred when she was eight. She later recollected that she had been six at the date of the first incident and she said she remembered that because she was in kindergarten at the time. She turned six in May 2012. She could not remember when in 2012 it occurred but said it was cold and it was before Christmas. On this occasion she said that she was in her pyjamas. Her grandfather arrived and gave her a hug. Later when she was standing in front of him in the kitchen with her mother, father and three siblings present he had put his hand down the back of her pyjama pants and touched her buttocks with the palm of his hand.

23. On the second occasion she said that she was in the kitchen and her father was cooking dinner. Her grandfather was there with other members of her family and he gave her a hug, turned her around so her back was to him and put his hand inside the back of her underpants and between her buttocks.

24. On the third occasion she said she and her mother were in the kitchen and her grandfather was also there and he put his hand inside her pants for about five minutes.

25. The magistrate dismissed the charges. On reading the decision it is apparent that the magistrate considered that there were inconsistencies in the child’s evidence. She noted that with regard to the third incident she at first said nothing happened at that location but then said that it did happen but could not provide many details.

26. Her Honour also noted that there had been a number of people in close proximity in the kitchens or dining room where and when the offences were alleged to have been committed but no one saw anything untoward, although from the evidence of the size of the rooms and the locations of the witnesses she thought they should have observed something happening. Photographs and diagrams of the rooms involved were in evidence in the trial and before us. She was unable to be satisfied beyond reasonable doubt that the alleged offences were committed.

27. Both parents said they recalled an incident where allegedly the sister of the child was having her nappy put on, she got away from her mother and the applicant made a comment about her “showing Poppy her bits” or “she just wants to show Poppy what she’s got” which they said they felt uncomfortable about but did not say anything.

28. The mother said that she had a good relationship with her father and he had bought her a car. There was also evidence that he did repair work on their house and helped them move house.

The applicant’s evidence

29. The applicant gave evidence. He denied committing the indecent assaults.

30. He had been married previously for ten years and there were two children of the marriage. He married a second time and this marriage lasted for eight or nine years with no children.

31. He said that he did not have a relationship with his adult son currently. His son had lived with him while doing an apprenticeship. He had helped him find work, bought him attire for job interviews and helped him find a block of land on which to build a house. However his son had problems with alcohol and on five occasions he had assaulted the applicant when affected by alcohol. On one occasion when he was assisting his son’s girlfriend who was afraid of being assaulted, his son hit him over the head and the police were called. The son did receive psychological treatment after that but the relationship broke down after he went to stay with his mother.

32. He said his daughter’s relationship with him had been “on and off.” There was a gap of some years before he visited her in 2012. She had telephoned him at one point asking for money. He paid some of her bills and bought her a car, but when he said he could not keep paying, the relationship soured. The applicant did not suggest that his difficult relationships with his daughter had any relationship with the allegations. He gave the evidence about his children in a very straightforward manner and did not attribute any blame.

33. He is currently in a stable relationship and his partner has two adult children who have their own teenage children. They associate with the children regularly. Between 2009 and 2011 the grandchildren of his partner lived with them pursuant to Family Court proceedings and under supervision of Community Services.

34. In the past he has done volunteer work with the Police Boys’ Club. Also as a volunteer with another club he was sometimes involved with activities in which children took part. He has been employed with TAFE since 2006 as a storeperson, teacher’s aide and first aid officer. His interaction with students involved providing them with tools, helping them during evening classes, showing them the different kinds of tools and how to use them.

35. In relation to the incident referred to at paragraph 27, he said that he could have said something like that, but did not recall.

36. He said he had never been the subject of complaint or disciplinary proceedings while employed at TAFE.

Dr Seidler’s evidence

37. Dr Seidler is a clinical and forensic psychologist with significant treatment experience in sexual and violent offenders. She prepared a report dated 28 June 2019 following an interview with the applicant, psychometric testing, a review of the documentation and a risk assessment.

38. Dr Seidler reported that the applicant informed her he was not currently sexually active and had not been able to sustain an erection for the past four or five years. He said while he was physically affectionate with his partner he did not have a sex drive anymore and was not particularly motivated by the idea of sex. She concluded he was not someone who had been particularly motivated sexually.

39. He demonstrated a satisfactory understanding of sexual boundaries and consent and demonstrated insight into the possible impacts of sexual abuse on victims.

40. Dr Seidler assessed the applicant with the Personality Assessment Inventory which assesses a range of personality and psychopathological variables. His profile was within normal limits and did not reveal any evidence of impairment or disturbance commensurate with psychopathology. This suggested to Dr Seidler that the applicant was a psychologically stable and well regulated individual who functioned well interpersonally.

41. Dr Seidler said the applicant voluntarily reported he was once “in trouble” with TAFE when he took a young person to hospital in his own car after the student was injured at the TAFE, which was contrary to policy. However he stated that he understood the reasons for being transparent and accountable with respect to the protection of children and young people.

42. Dr Seidler conducted a risk assessment of the applicant with the Static-99 which assesses risk of sexual or violent recidivism. It indicates a general potential for sexual or violent reoffending based on the nature of past offending. It is noted that the applicant was not convicted but according to Dr Seidler it is possible to use the tool where a person has only been charged, although caution should be exercised. It is widely accepted tool for assessing relative risk by courts and within the scientific community.

43. The applicant received a score of minus three which places him in the Very Low Risk category. This represents that in a correctional setting, out of 100 offenders, none would have a lower score than the applicant, three would have the same score, and 97 would have a higher score. On average, offenders with a Static-99R score of minus three have a sexual recidivism rate that it is 0.19 times that of the average sexual offender.

44. Dr Seidler also assessed the dynamic risk factors for the applicant (being those related to his psychology and circumstances) with the Risk for Sexual Violence Protocol. This assessment suggested that he represented a low risk of future sexually abusive behaviour. The applicant also had a number of protective factors with reference to the Structured Assessment of Protective Factors for violence risk – Sexual Offence Version tool. ‘

37. Taking the risk assessments and protective factors into account, Dr Seidler’s opinion was that the applicant presented an overall low risk of sexual recidivism. In her opinion, his future risk of sexually abusive behaviour was “commensurate with any other man of his age in the community”.

Positions of the parties

46. Counsel for the respondent stated that the Children’s Guardian neither consented to nor opposed an order being granted and it was a matter for the Tribunal.

47. The solicitor for the applicant relied on the risk assessment and submitted that were the applicant to receive a clearance, he intended to resume work with TAFE. No other similar allegations had ever been made against the applicant from his paid or volunteer work. Weight should be given to the character references including those who said that they had no concerns about their children being with the applicant unsupervised.

The factors to be considered under s 30

The seriousness of the offences or any matters that caused a refusal of a clearance

48. The matters which caused the refusal were the 3 charges against the applicant of indecently assaulting a person under 16 years of age, which were dismissed by the Local Court.

49. These are serious charges given the nature of the conduct, the position of trust held by the applicant and the age and vulnerability of the child concerned.

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

50. The alleged incidents took place between 2012 and 2016. In that period and since there were no other known charges or complaints about the applicant. An apprehended violence order was made against the applicant at the conclusion of the trial but this was made with his consent and with no admissions.

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

51. The applicant was between approximately 63 and 67 years of age at the time of the alleged incidents.

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

52. The alleged victim was the applicant’s granddaughter and she was between the ages of 5 or 6 years and 9 or 10 years at the time the alleged conduct occurred. Because of her age and her relationship to the applicant she was particularly vulnerable, and the alleged conduct occurred in her family home.

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

53. As noted above the victim was the applicant’s granddaughter.

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

54. There is no issue that the applicant knew that she was a child.

The person’s present age

55. The applicant is currently 70 years of age.

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

56. The applicant only has one other criminal offence on his record, a conviction for stealing in 1970 when he would have been 21 years old. There are no complaints about his conduct since the matters occurred.

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

57. Dr Seidler’s opinion was that the applicant presented an overall low risk of sexual offending. In her opinion, his future risk of sexually abusive behaviour was “commensurate with any other man of his age in the community”. She noted that the risk declines with age. We understood from evidence she gave in these proceedings that the lack of any sexually deviant factors made it unlikely that the applicant was a person who had first acted in a sexually deviant way in older age. Even if his first offence was at a later age, he was in a low risk group because of his age.

58. We are conscious that the applicant has not been convicted of any offence. But even if it were assumed that he had committed the offences, Dr Seidler’s report indicates that the risk of any repetition of the conduct is low. The Static-99 tool assessed his risk as very low.

59. We are conscious that much of the information which Dr Seidler relied upon in her report was self reported by the applicant. However we gave weight to the thoroughness of her report and her extensive experience with sexual offenders and in child and family settings.

Any order of a court or tribunal that is in force in relation to the person

60. An apprehended violence order is currently in force which was made by consent without admissions at the conclusion of the criminal trial and will remain so for six months.

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

61. The applicant has denied the conduct which was the subject of the criminal proceedings and denied any conduct of that kind. The applicant has provided a statutory declaration and a number of character references.

62. We have had regard to the references provided by the applicant. These were from:

1. A TAFE teacher who is aware of the allegations. He has worked with the applicant since the date he commenced employment and has no concern about the applicant being alone with his daughters. He also stated that he had access to the applicant’s personal and work computers between 2014 and 2016 and never saw any material which might cause him concern. The allegations did not cause him to change his opinion of the applicant and he has full trust in his character.

2. A female neighbour who is aware of the allegations. The applicant and his partner have babysat her two sons who were six and four years old in 2019. Her children would regularly visit the applicant and his partner at their property.

3. His supervisor and head teacher at TAFE who has known the applicant for 11 years. She stated that she had witnessed the applicant working with students. The applicant was professional and focused on ensuring that the students in the classes he worked in had a good understanding of the skills required. He has never to her knowledge acted inappropriately towards students or staff. His position of employment remains open to him. She was of the view that the applicant did not pose a risk to the safety of children.

Any relevant information in relation to the person that was obtained in accordance with section 36A

63. This is not applicable.

The factors under s 30(1A) of the Act

64. Under s 30(1A) of the CPWWC Act the Tribunal may not make an order which has the effect of enabling a person to work with children in accordance with the Act unless the Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and it is in the public interest to make the order.

65. The Tribunal has held that the first part of the test is an objective one. In DAI v Children’s Guardian [2018] NSWCATAD 308 it was held (at [91]):

“In order to properly consider this test, a “reasonable person” would need know about the disqualifying offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.”

66. The applicant was acquitted of the offences in the Local Court because the prosecution could not establish the commission of the offences beyond a reasonable doubt. There is no presumption that the applicant poses a risk to children which the applicant must displace. However the applicant has an obligation to disclose all relevant information (s 27(4)).

67. In these proceedings the Tribunal must decide what is the correct and preferable decision having regard to the material before it. The Tribunal’s jurisdiction is protective and the Tribunal should have regard to the paramount consideration which is the safety, welfare and wellbeing of children and the need to protect them from child abuse (s 4).

68. The allegations and evidence of the child are matters which the Tribunal must consider. In situations where allegations have not been proven to the criminal standard, the Tribunal may still conclude that the circumstances around a particular incident or course of conduct means that the risk of abuse has not been disproven (BKE v Office of the Children’s Guardian [2015] NSWSC 523). If there is a lingering doubt or suspicion remaining, this should count against the applicant, although it would not necessarily be fatal to the application.

69. There is of course a doubt which arises from the account given by the applicant’s grandchild, and our awareness that children who suffer abuse within the family may not be believed and will face significant difficulties in making such allegations about a family member. We noted that her account withstood interviews by police and giving evidence at trial. We noted also, as the magistrate did, that her account was sometimes inconsistent and variable and there were situational factors which made her account of events seem improbable.

70. Overall, the applicant’s psychological risk assessment, the character references, his lack of any criminal history apart from one minor offence in his youth, his personal history, his manner of giving evidence which was candid and not evasive, his current circumstances, age and situation, considered together, supported a finding that he did not pose a real and appreciable risk to children. Weighed against the allegations, the other evidence led us to be satisfied that a reasonable person knowing all the relevant information including the risk assessment, would allow his or her child to have direct contact with the applicant which was not directly supervised by another person while the applicant was engaged in any child-related work.

71. Having regard to the applicant’s age, situation and personal history, we were also satisfied that it is in the public interest to make an order granting a clearance.

72. Accordingly we determined that the correct and preferable decision was to set aside the respondent’s decision and grant a clearance to the applicant.

Orders

1. The decision of the respondent dated 14 August 2019 to refuse the applicant’s application for a working with children check clearance is set aside.

2. In substitution, a decision is made to grant a working with children clearance to the applicant.

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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: 29 January 2020