Ecq v The Children's Guardian

[2021] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

ECQ v The Children’s Guardian [2021] NSWCATAD 217

Hearing dates:

22 January 2021 and 31 March 2021

Date of orders:

26 July 2021

Decision date:

26 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
Emeritus Professor P J Foreman AM, General Member

Decision:

(1) The decision of the Children’s Guardian dated 8 November 2019 to refuse to grant the applicant a working with children check clearance is affirmed.

(2) The application for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) filed by the applicant on 14 November 2019 is refused and dismissed.

Catchwords:

ADMINISTRATIVE LAW— Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BKE v Office of Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

Commission for Children and Young People v V [2002] NSWSC 949

CRG v Children’s Guardian [2017] NSWCATAD 295

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506; (2011) ALR 408

Smith v Commissioner of Police [2014] NSWCATAD 184

The Commissioner for Children and Young People v IK [2005] NSWSC 1136

VQB v The Secretary to the Department of Justice [2013] VCAT 789

ZZ v Secretary to the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

ECQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Michelle Giacomo (Respondent)

Solicitors:
ECQ (Applicant Self-Represented)
Crown Solicitor’s Office (Respondent)

File Number(s):

2019/00358187

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. This order was made on 21 November 2019 under s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 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

Introduction

1. The applicant filed an application for administrative review on 14 November 2019, requesting review of a decision dated 8 November 2019 of the Children’s Guardian (the Decision), to refuse to grant a working with children check (WWCC) clearance to him on the ground that he was a disqualified person.

2. The applicant is a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 (the Act), having been convicted in May 2011 of the offence of Assault with an Act of Indecency pursuant to s 61L of the Crimes Act (NSW) 1900 to which he pleaded not guilty. The applicant was placed on a good behaviour bond for 2 years. The applicant was also convicted of common assault after entering a not guilty plea, and was required to enter into a bond for 12 months.

3. The applicant appealed the convictions on the ground that he was not guilty and he also appealed the severity of the sentences imposed. The NSW District Court upheld the convictions in September 2011. However, the sentences were reduced to convictions without penalty.

4. The applicant sought a WWCC clearance in October 2019 because he hopes to be appointed to a panel of lawyers established by Legal Aid NSW in order to act as an Independent Children’s Lawyer and represent children in proceedings before the courts, in particular, the Family Court of Australia.

5. The respondent opposes the orders sought by the applicant.

6. In this application, the applicant seeks orders that the respondent’s Decision be set aside. He also seeks an enabling order pursuant to s 28(1) of the Act that he is not to be treated as a disqualified person for the purposes of that Act in respect of his 2011 conviction and an order under s 28(6) requiring the respondent to grant him a WWCC clearance.

7. If an application is made under s 28(1) of the Act for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he poses a risk to the safety of children: s 28(7) of the Act. The applicant therefore has the burden in these proceedings of establishing on the balance of probabilities that he does not pose a risk to the safety of children.

Prohibition order

8. Because of the sensitive nature of these proceedings and to protect the identity of any alleged victim, an order was made on 21 November 2019 under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) 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. To give effect to this order, the pseudonym ‘ECQ’ has been used for the applicant’s name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed. Additionally, geographic locations, the precise dates of criminal proceedings, criminal charges and an alleged complaint of a criminal offence against the applicant, and the name of a business which the applicant owned and operated have not been disclosed to protect against identification of any person named in these proceedings.

Issue for determination

9. The issue to be determined is whether, having regard to the matters set out in s 30(1)(a)-(k) of the Act, the relevant facts and the evidence before this Tribunal, the applicant has rebutted the statutory presumption placed on him under s 28(7) of the Act and established on the balance of probabilities that he does not pose a real and appreciable risk to the safety of children.

10. Before making an order which has the effect of enabling the applicant to work with children, the Tribunal is also required to be satisfied on the matters set out in s 30(1A) of the Act.

Material before the Tribunal

11. In determining this matter, the Tribunal has taken into consideration the following:

Written material filed on behalf of the applicant

1. Application for administrative review attaching the respondent’s Decision (marked for identification “A1”);

2. Affidavit of the applicant deposed on 28 November 2018 to which are annexed the following documents:

1. the applicant’s criminal history and bail reports comprising six pages and marked Annexure “A” (note some pages are marked “B”, apparently in error);

2. a report dated October 2012 completed by Eli Sky, Psychologist (Ms Sky), marked Annexure “B”; and

3. a report dated March 2012 completed by Ms Sky, marked Annexure “C”,

(altogether, marked “Exhibit A2”);

3. a certificate issued by the Law Council of Australia in recognition of the applicant’s attendance at a training program for Independent Children’s Lawyers (marked “Exhibit A3”); and

4. a two-page written submission.

Written material filed on behalf of the respondent

1. a bundle of documents filed on 31 January 2020 (marked “Exhibit R1”);

2. documents produced under summons by Ms Sky (marked “Exhibit R2”); and

3. a written outline of submissions.

Oral evidence

1. the applicant’s oral evidence given on 31 March 2021.

Oral submissions

1. closing oral submissions by both parties made on 31 March 2021.

Background

12. At the time of making his application for a WWCC clearance, ECQ was aged 65. He is married, with children and several grandchildren. He has owned two businesses with his wife, including a childcare centre for approximately 13 years.

13. The applicant obtained his qualifications to practise as a solicitor in 2008 and practises in family and criminal law. He attended a 3-day National Training Program for Independent Children’s Lawyers in November 2015, and as already noted above, has aspirations to represent children in court proceedings.

14. In connection with the criminal proceedings in 2011, the applicant’s wife who worked as a nurse, provided a character reference attesting to her husband’s good qualities as a husband, father and provider. She described her husband’s involvement in local community activities and school activities associated with their children’s education and sporting pursuits.

15. In his affidavit evidence filed in the proceedings before this Tribunal, the applicant described the incidents which resulted in being convicted of two offences as “a poor decision” for which he had been paying for almost ten years.

16. Apart from his convictions arising from the criminal trial in 2011, the applicant acknowledged a conviction for a mid-range drink driving offence.

17. Following his two assault convictions, the applicant was required by his professional association, the Law Society of New South Wales (the Law Society), to obtain a risk assessment in relation to sexual offending. This was required in order to determine the level of potential risk for recidivism he posed should he continue to work as a solicitor, given that some of his female clients are in vulnerable circumstances. The Law Society’s letter in October 2011 to the applicant advised that it was in his best interests and “for the protection of the community” to undergo counselling for a period of 12 months.

18. The applicant attended 13 psychological counselling sessions with Ms Sky who issued the two reports dated March 2012 and October 2012 which were annexed to the applicant’s affidavit and tendered as evidence in the proceedings before this Tribunal.

Applicable legislation

Jurisdiction of the Tribunal

19. The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under s 4 of the Act and the jurisdiction of the Tribunal under s 28 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY’s case) at [26]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34].

20. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:

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.

21. The paramount consideration in the operation of the Act is set out in s 4:

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.

Meaning of “children” and “risk to the safety of children”

22. “Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.

23. The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” In considering this critical aspect of the meaning of “risk”, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 (BKE’s case) at [26]:

“…what one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, “to the safety of children”.”

24. he Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ’s case) at [26].

The meaning of “child-related work”

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

26. The meaning of “child-related work” is set out in s 6 of the Act. The provision of legal services where a legal practitioner acts as an Independent Children’s Lawyer and represents children in proceedings before the courts, requires the legal practitioner to have “face to face contact” with a child or children as defined in s 6(4) of the Act.

27. Clearly then, the applicant requires a WWCC clearance in order to represent children in proceedings before the courts and in providing legal services to and on behalf of children.

The meaning of “disqualified person”

28. Section 18(1) of the Act provides that the Children’s Guardian must not grant a working with children check clearance to a “disqualified person”.

29. A “disqualified person” is a person who has been convicted of an offence specified in Schedule 2 of the Act.

30. A conviction for the offence of assault with an act of indecency pursuant to s 61L of the Crimes Act (NSW) 1900 is a disqualifying offence specified in Schedule 2.1(1)(e) of the Act.

Review and appeals relating to working with children check clearances

31. Part 4 of the Act deals with reviews and appeals. In particular, s 28(1) provides that a disqualified person may apply to the Tribunal for an order that the person is not to be treated as disqualified with respect to the offence specified in the order (“an enabling order”). Under s 28(6) of the Act, if the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a clearance.

Statutory presumption: Applicant bears onus to disprove risk to safety of children

32. As previously noted, the applicant has the burden in these proceedings of rebutting the statutory presumption that he poses a risk to the safety of children. As clearly set out in s 28(7) of the Act:

“in 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”.

33. In determining whether the applicant has displaced the presumption that he poses a real and appreciable risk to the safety of children, the Tribunal is required to consider “the totality of the evidence”: BKE’s case at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before the Tribunal: CYY’s case at [69]-[71].

Full disclosure of relevant matters must be made to the Tribunal

34. Under s 28(5) of the Act, an applicant must fully disclose to the Tribunal any matters relevant to the application. This statutory obligation requires an applicant to disclose to the greatest degree or extent possible all matters that are relevant to the Tribunal’s determination as to whether the applicant poses a risk to the safety of children.

Enabling order is made without conditions attaching to the order

35. Section 28(8) of the Act provides that an enabling order cannot be made subject to conditions.

Five year embargo after refusal of application for WWCC clearance

36. Under s 13A(1) of the Act, a person who is refused a WWCC clearance is not entitled to make a further application for a clearance for 5 years without the permission of the Children’s Guardian. In the current circumstances, the applicant is not entitled to make a further application for clearance until November 2024 unless there is a change in circumstances as set out in s 13A of the Act.

Mandatory criteria for determining an application

37. In determining an application, the Tribunal must consider the matters set out in s 30(1)(a)-(k) of the Act:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

(h) the seriousness of the person’s 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.

Two-part test to be satisfied before an enabling order can be made

38. If, having considered the matters set out in s 30(1)(a)-(k), the Tribunal considers that the applicant does not pose a risk to the safety of children, it can only make an enabling order if it is satisfied that the applicant meets the two-part test set out in s 30(1A) of the Act:

(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.

First limb of the two-part test known as the “reasonable person” test

39. The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY’s case at [26].

40. A similar reasonable person test is contained in Victorian legislation. In VQB v The Secretary to the Department of Justice [2013] VCAT 789 (VQB’s case) at [36], it was said of the test that it:

“requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment of a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.”

41. The approach in VQB’s case was endorsed by this Tribunal in CRG v Children’s Guardian [2017] NSWCATAD 295 at [85] and DAI v Children’s Guardian [2017] NSWCATAD 308 (DAI’s case) at [90]. In DAI’s case, the Tribunal noted at [91] the following:

“In order to properly consider this test, a “reasonable person” would need to 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.”

Second limb of the two-part test known as the “public interest” test

42. The second limb of the two-part test is referred to as the “public interest” test. It must be considered in the context of s 4 of the Act, namely 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: CYY’s case at [74].

43. There is no definition of public interest under the Act. In Hogan v Hinch [2011] HCA 4 (Hogan’s case), His Honour Justice French said of public interest at [31]:

“When used in a statute, the term derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.”

44. In line with Hogan’s case, this Tribunal must assess the public interest in granting an applicant a clearance by reference to the purpose of the Act as a whole. The purpose can be ascertained from the object and paramount consideration of the Act as set out in ss 3 and 4, namely, the protection of children from abuse by ensuring that those who engage in child-related employment have a WWCC clearance.

45. When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY’s case at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary to the Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY’s case at [75].

46. If the Tribunal is not satisfied that the applicant has met either of the first or second limbs in the two-part test, then it must refuse to make an enabling order.

The disqualifying offence

47. The details of the disqualifying offence are set out below:

1. In late 2010 the complainant attended the office of the applicant for the purpose of offering to sell a restaurant card to him.

2. The applicant said that he was single.

3. The applicant made a comment about the complainant’s appearance which she described as “sleazy”.

4. The complainant went to leave the office and the applicant followed her. Suddenly, the applicant picked her up and carried her about 2 metres inside his office, closing the door behind them.

5. The applicant attempted to kiss the complainant who moved her face away and said ‘No, no, no, no, no, what are you doing?” The applicant said “sorry” and let her go.

6. The complainant turned around to leave the office and the applicant grabbed her around the waist from behind. He ran both his hands along the side of her body, over her breasts, back down to her waist and over her buttock.

7. The applicant said: “Geez, you’ve got nice firm boobs”.

8. The complainant quickly opened the office door and walked out.

9. The applicant watched her from the office and said: “Geez, look how small your waist is”.

48. The complainant attended the local police station the following day and reported the assault upon her.

49. In the criminal trial, the complainant gave evidence and was cross-examined.

50. The applicant also gave evidence and was cross-examined in the Local Court. His evidence was that the whole exchange with the complainant took one to two minutes and he pleaded not guilty to the charges.

51. As already noted above, the applicant was convicted at first instance and, on appeal, the conviction was upheld.

Reports from the treating psychologist, Ms Ely Sky

52. Despite what the Local Court Magistrate described as a “blanket denial” by the applicant of the assault allegations, he told Ms Sky that he had “indecently touched” the complainant and was guilty of the offences for which he had been charged and convicted.

53. Having pleaded not guilty in the Local Court and District Court proceedings, the applicant then made a full admission of guilt to Ms Sky. Her report dated October 2011 (in documents produced under summons on behalf of the respondent) is predicated on her understanding of the applicant’s confessed guilt. She noted that his version of events matched the NSW Police Force Fact Sheet and reported that he said to her: “I’m guilty” and “it was wrong”. Her report noted that the applicant was oriented to time and place based on his verbalisations to her.

54. Likewise, Ms Sky’s report in March 2012 is also predicated on her understanding that the applicant accepted full responsibility for his conduct. Her report stated that the applicant did not deny or minimise his behaviour toward the female complainant and that the applicant:

“…remained frank about his actions and admitted his conduct towards the female was inappropriate. He took complete responsibility for what he recognised was a foolish act, showing remorse and regret for his lapse of judgment.”

55. Ms Sky’s March 2012 report confirmed that the applicant had asked for psychological intervention to address any risk factors for sexual re-offending following his conviction. By way of background, the report noted that the applicant had been required by his professional association to obtain:

“…an independent assessment to determine the level of potential risk for recidivism that he posed should he continue work in his profession, given that some of his clients are female and are in vulnerable circumstances.”

56. Using an actuarial tool (Static-2002), Ms Sky concluded that the applicant’s risk of sexual recidivism fell in the low risk category.

“He is likely to be like others who have one apprehension and sanction for sexual offending who do not repeat behaviour that jeopardises the lifestyle which has taken decades to establish.”

57. Further, Ms Sky opined that the consequences of the applicant’s actions would exert a strong reminder of how he “must maintain appropriate boundaries at all times in all circumstances.”

58. Ms Sky’s notes of her consultation with the applicant 5 months later, in August 2012, disclose that he said his wife was upset that he had not told her about the criminal trial until he was convicted. The notes also disclose that the applicant had maintained his innocence to his wife because he believed that she would leave the marriage if she knew he had “grabbed” the complainant. The notes state that the applicant has “lies upon lies to contend with”.

59. Her report in October 2012 again affirmed that the applicant:

“…accepted full responsibility for his offending and at no time denied or minimised his behaviour. He continued to admit his conduct towards the female victim was inappropriate and did not blame the victim for coming on to him nor for taking the matter to the Police. He showed remorse and regret for his lapse of judgement. He expressed the view that his foolish behaviour was out of character though he recognised how his attitudes and circumstances at the time contributed to his miscontruals (sic) of the victim’s intentions and actions.”

60. The October 2012 report reiterated that the applicant accepted full responsibility for his offending and at no time denied or minimised his behaviour. Ms Sky reported that two risk assessment instruments had been used to provide an objective assessment of the applicant’s risk of sexual reoffending. First, using the Static-2002, Ms Sky again assessed the applicant’s risk of sexual recidivism, based on historical factors, was likely to be low. Second, the Risk for Sexual Violence Protocol, used to ascertain which factors are present in an individual that could pose a risk for sexual reoffending, indicated that the applicant had no factors that are associated with a risk of sexual reoffence operating at that time or over the previous months.

The applicant’s evidence before the Tribunal

61. In a somewhat rather surprising development, the applicant’s oral testimony before the Tribunal contradicted parts of his affidavit evidence and completely overturned the basis on which Ms Sky had treated him for a period for 12 months and the basis on which she had assessed his risk of recidivism.

62. Although the applicant had himself tendered into evidence Ms Sky’s March 2012 and October 2012 reports by annexing them to his affidavit, his oral evidence contradicted the fundamental proposition that he had advanced in his sessions with Ms Sky, namely that he was guilty of the conduct for which he was convicted. The applicant said that he had undergone the counselling sessions with Ms Sky under duress.

63. His oral evidence was that he had not done anything to the complainant and that he had to admit the offence to Ms Sky, in order to keep his practising certificate. He said that he would not have seen Ms Sky if not for the Professional Standards Department of the Law Society requiring him to undergo counselling for 12 months.

64. When asked about the events that were the subject of the criminal trial, the applicant said he did not recall whether the complainant had entered his office on the day in question, seeking to sell a restaurant card.

65. When asked whether he had told the complainant he was single, he said he did not recall.

66. In response to a suggestion that he had behaved in a sleazy manner, he also said he did not recall.

67. In answer to the question whether he had tried to kiss the complainant, the applicant replied “no”.

68. The applicant denied he had commented that the complainant’s waist was small.

69. In response to a question whether the complainant would feel uncomfortable, the applicant said “it never happened”.

70. In short, the applicant either could not recall the circumstances of the event, or insisted that the incident had not taken place.

71. In response to Counsel for the respondent taking the applicant to the Magistrate’s comments in the criminal trial that he had been “defensive” and “hostile”, the applicant agreed, saying that he was hostile then and “today” as in before this Tribunal.

72. Counsel for the respondent then took the applicant to that part of his affidavit tendered in these proceedings which said that he had made a “poor decision”. The reference in his affidavit to a “poor decision” appeared contextually to refer to the conduct for which he was found guilty. However, in giving his oral evidence, the applicant said that he should not have shut the door to his office or not allowed the complainant to enter his office, suggesting that that had been his “poor decision”, and not the conduct which resulted in his conviction.

Consideration

73. In determining this application, the Tribunal “must consider” those matters specified in s 30(1)(a)-(k) of the Act. The evidence will be considered under each of the mandatory criteria headings.

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: s 30(1)(a)

74. The disqualifying offence is serious, resulting in the applicant being convicted of Assault with an Act of Indecency in May 2011. The applicant was placed on a good behaviour bond for 2 years.

75. The applicant was also convicted in May 2011 of common assault, and was required to enter into a bond for 12 months.

76. The applicant pleaded not guilty to both charges. In the words of the presiding Magistrate on the second day of hearing in the Local Court criminal proceedings:

“…none of the allegations made by [the victim] occurred, it is a blanket denial by the defendant.”

77. His Honour made the following observations about the applicant’s demeanour:

“I again had the opportunity to assess the defendant’s demeanour in the witness box. I scrutinised his evidence as it was delivered very carefully.

…in my view he was very dismissive. He was defensive and indeed I my view he was at times indignant and his behaviour in the witness box bordered on hostility.”

78. In summing up his view of the evidence, His Honour said:

“I am of the view that [the victim] was a witness of reliability and of great credit. I am not of the same conclusion when it comes to the evidence of the defendant. I have reservations about the way he approached the role of giving evidence, the manner in which he gave his evidence and his attitude displayed in the witness box.”

79. His Honour found the offences were proved beyond reasonable doubt, and the evidence of the defendant was rejected.

80. The applicant appealed both his convictions and the severity of the sentence in the District Court in the latter half of 2011. The NSW District Court upheld the convictions, but no penalty was imposed.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

81. The disqualifying offence occurred in 2010. Accordingly, almost 11 years have elapsed since the offending conduct occurred.

82. There are no recorded Apprehended Violence Orders for the applicant in the NSW Police database as at 27 November 2019.

83. The applicant’s conduct since the disqualifying offence is otherwise considered under s 30(1)(h) below.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

84. The applicant was 56 years of age at the time of the offending conduct.

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: s 30(1)(d)

85. The victim was 44 years of age.

86. The applicant had closed the door to the office premises where the offence occurred, placing the victim in a situation of vulnerability where she may have found it difficult to escape.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)

87. The age difference was approximately 12 years.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

88. The victim was not a child.

The person’s present age: s 30(1)(g)

89. The applicant is now 67 years of age.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

The applicant’s criminal history prior to the disqualifying offence

90. The applicant’s criminal record commenced with a mid-range drink driving charge in 1989 resulting in the applicant being fined $400 and disqualified from driving for 6 months.

91. In February 1999 the applicant was charged with Assault with an Act of Indecency (the 1999 Charge). The facts relied upon by the NSW Police were that:

1. in November 1998 the complainant (an adult female) spoke with the applicant outside a tavern;

2. the complainant and the applicant walked together for a short distance during which the complainant explained her employment status and the applicant invited her to apply for a position with a day-care centre that he owned;

3. whilst they were walking the applicant was swinging his arms and his hand came into contact with the complainant’s vagina. He immediately apologised;

4. the complainant went into the applicant’s office where he took the complainant’s details and then he grabbed the complainant on the left buttock and squeezed it;

5. the applicant asked the complainant if he could go home with her. This advance was rejected;

6. the complainant reported the matter to the NSW Police the following day.

92. The 1999 Charge was subsequently withdrawn.

93. Under cross-examination in the proceedings before this Tribunal, the applicant agreed that the allegations were similar to the disqualifying offence involving women unknown to him, sexual in nature, and connected with the workplace. However, he said that it was not correct that he was alleged to have touched her vagina. He denied that he squeezed her on the buttock and denied that he asked to go home with her. According to the applicant’s oral evidence, “it never happened”. He dismissed the 1999 Charge as simply a bare complaint that was never tested.

The applicant’s conduct since the disqualifying offence

94. In December 2014, almost 4 years after the disqualifying offence, a complaint was made to NSW Police by an adult woman alleging that she had been sexually assaulted by the applicant (the 2014 Complaint). The event description as recorded in NSW Police records, was that:

1. the complainant was a family law client of the applicant and it had been arranged that she would meet the applicant at a local club in November 2014 where she would sign a legal document;

2. the complainant reported feeling uneasy as she thought the applicant was “sleazy” and was trying to “pick her up” as he was very complimentary towards her and overly attentive;

3. the applicant offered to give the complainant a lift home and she agreed. Her home was about a two-minute drive away;

4. during the drive, the applicant placed his hand on the complainant’s thigh. He moved his hand along her thigh towards her crotch and he then touched her crotch;

5. the complainant demanded that the applicant stop the vehicle. The applicant continued to drive the car and apologised;

6. the applicant stopped his car in the complainant’s street and continued to be apologetic. The complainant apprehended that the applicant was going to hug her. He grabbed her left breast and squeezed;

7. the complainant opened the door and exited the vehicle.

95. At the time the complainant reported the matter to the NSW Police, she said she was not sure if she was willing to supply a statement about the matter but said that she would like assurance that the applicant would not do the same to other women.

96. Under cross-examination in the proceedings before this Tribunal, the applicant’s oral evidence was that “it didn’t happen”. He denied that he had driven the complainant in his car and denied that he had touched her. He maintained that the allegations were never put to him and he was dismissive of them, saying they concerned events that occurred “20 years ago”.

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)(i)

97. The Tribunal must consider the likelihood that the applicant poses a risk to the safety of children.

98. After being convicted of the disqualifying offence, the applicant engaged in 13 sessions of therapeutic consultations in 2011-2012 with Ms Sky, required by the Law Society as a condition of his practising certificate.

99. The difficulty with the opinions expressed by Ms Sky in her reports is very clear. They were premised on blatant and deliberate false representations provided by the applicant throughout the entire course of his therapeutic counselling sessions, and therefore her assessment of the applicant’s risk of sexual recidivism as being “unmeasurably low” cannot be regarded as reliable and cannot be given any weight.

100. Otherwise, the applicant did not provide a risk assessment report from a psychiatrist or psychologist to assist the Tribunal in deciding whether he is likely to pose a risk to the safety of children.

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

101. The Tribunal was not provided with any information relevant to this criterion.

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

102. As noted earlier in these Reasons, the applicant aspires to be appointed to act as an Independent Children’s Lawyer and represent children in proceedings before the Courts, and this requires a WWCC clearance.

103. In support of his application, ECQ submitted that there have never been any allegations against him in relation to children. He submitted that he had owned and operated a childcare centre from 1994 until 2003 without any complaints in relation to children. He submitted that he did “an act of stupidity” with a 45 year old woman on one occasion (if, indeed, that evidence can be relied upon as a truthful statement in light of his oral evidence) and that he should not be shackled to his past.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

104. Not applicable.

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

105. There are no further matters to be considered.

Summary of the applicant’s case

106. The applicant’s case is that at no time has he ever been inappropriate with children and that there is no risk of harm in providing him with a WWCC clearance. He maintained that he had operated a child care centre for 15 years without incident.

107. The applicant argued that, with respect to his sessions with Ms Sky, he was fighting to maintain his practising certificate, and that, in the criminal trial, he was fighting for his innocence.

108. ECQ’s affidavit evidence is that he made a “poor decision” in 2010, that he has paid for that “decision” for “almost 10 years”. Although it was not entirely clear, it appeared from the applicant’s oral evidence that the “poor decision” to which he referred was either a decision to allow the complainant to enter his workplace, or a decision to close his office door.

109. The applicant’s oral evidence before this Tribunal is that the matters for which he was convicted “didn’t happen”.

110. Likewise, the applicant’s oral evidence was dismissive of the 1999 Charge and the 2014 Complaint, and he maintained that they, too, “didn’t happen”.

111. The applicant submitted that, with respect to s 30(1A) of the Act, a reasonable person would not regard him as a risk to children.

112. In his submission, a 5 year embargo until he is entitled to make a further application for a WWCC clearance is too harsh a punishment.

113. The applicant cited in his affidavit the case of CVS v Children’s Guardian [2017] NSWCATAD 154 (CVS’s case). In that case, the applicant pleaded guilty, had no other charges against him, underwent recent forensic psychological assessment and produced a report that was described by the Court as being “sound and thorough”, provided 6 character references in support of his application and the Children’s Guardian neither supported nor opposed the application. The proceedings before us can be distinguished from the facts and circumstances in CVS’ case in a number of areas, namely:

1. ECQ pleaded not guilty (despite his affidavit evidence to the contrary and Ms Sky’s reports);

2. both the 1999 Charge and the 2014 Complaint involve similar circumstances to the disqualifying offence which resulted in his conviction and were reported to the NSW Police;

3. ECQ did not provide a recent risk assessment report from a forensic psychologist or psychiatrist;

4. ECQ provided no character references in support of his application; and

5. the respondent is not neutral, and opposes the application.

Summary of the respondent’s case

114. The respondent’s case is that the applicant has not rebutted the statutory presumption that he is a real and appreciable risk to the safety of children.

115. The respondent submitted that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work.

116. The respondent argued that the applicant did not provide any information to the Tribunal about the 1998 Charge or the 2014 Complaint. The applicant’s affidavit is silent on those matters and, in the respondent’s submission, the applicant has failed to comply with his duty of candour to the Tribunal.

117. Counsel for the respondent submitted that the applicant’s evidence that he lied to Ms Sky for 13 months demonstrates that he set out to mislead the psychologist because he believed that if he told her that he did not commit the offence, his practising certificate would be revoked. In the respondent’s submission, throughout the entire period of his psychological therapy with Ms Sky, the applicant embarked upon an elaborate narrative of the reasons why he committed the conduct which resulted in his conviction.

118. It is the respondent’s contention that the three instances involving allegations against the applicant, namely the 1999 Charge, the 2011 conviction and the 2014 Complaint, all involve inappropriate touching of women either in the workplace or following work that he performed.

119. The respondent submitted that the Tribunal could not be satisfied that the applicant was a witness of truth about anything.

Conclusion reached in relation to s 30(1)(a)-(k) matters

120. We have considered the evidence before us.

121. We have taken into account the fact that the applicant failed to disclose details of the allegations reported to the NSW Police in 1998 and 2014, matters which we consider to be relevant to the application and ought to have been disclosed by him in accordance with his statutory duty under s 28(5) of the Act.

122. The applicant’s conflicting accounts of the disqualifying offence and his inconsistent evidence relating to his guilt or innocence with respect to the disqualifying offence, are that:

1. he pleaded “not guilty” in the criminal proceedings;

2. he subsequently made a full admission of guilt (albeit dishonestly) to Ms Sky, his treating psychologist, in September 2011;

3. he maintained his admission of guilt (again, dishonestly) to Ms Sky during 13 counselling sessions from September 2011 until October 2012;

4. in addition to maintaining his admission of guilt, he explored in some depth with Ms Sky the motivation for his conduct that led to his conviction;

5. he maintained the position of guilt as a deliberate ploy to appease the Law Society’s concerns about the need to protect the community in light of ECQ’s conviction;

6. he was aware that Ms Sky’s assessment of his risk for recidivism would be provided to the Law Society and relied upon by the Law Society as a condition for his practising certificate;

7. his affidavit evidence to this Tribunal was that he had “made a poor decision” and had been paying for that decision for almost 10 years, that he had worked on his “issues”, that he “will never again disrespect a woman”, and that there had been “no offences committed by [him] since 2010”, all of which contributed to the overall impression that the applicant acknowledged in writing his conduct and guilt that led to his conviction;

8. and yet, his oral evidence before this Tribunal was that the offences of which he was convicted “never happened”, entirely contradicting the impression created by his written evidence and expressly contradicting the position he had knowingly put to Ms Sky and the Law Society.

123. The applicant’s oral evidence, that he only admitted to his guilt and only underwent psychological counselling as a condition imposed by the Law Society upon his practising certificate, appears to us to be as disingenuous as his affidavit evidence.

124. As a result, we regard the applicant to be a person who, in the words of Ms Ely Sky, must contend with “lies upon lies”, including in relation to his application before this Tribunal. In light of his fabrications to Ms Sky and the Law Society as a contrivance to maintain his practising certificate under false pretences, and the applicant’s cavalier approach to his duty of disclosure under the Act, we do not accept him to be a reliable witness who has truthfully disclosed all matters of relevance to his application.

125. The 1999 Charge, the 2011 conviction and the 2014 Complaint all involved women unknown to the applicant, whom he allegedly inappropriately touched either in the workplace or in connection with the offer of work or following the performance of work. We acknowledge that the 1999 Charge and the 2014 Complaint were not tested, and we note ECQ’s denials of the allegations. Against those matters, however, is the fact that all three complainants felt the need to report the matters to the NSW Police, and did so. The 1999 Charge and the offence resulting in the applicant’s conviction in 2011 both involve allegations of sexual impropriety that were reported contemporaneously (the following day). The 2014 Complaint was reported to the NSW Police within two weeks of the alleged sexual assault, and that particular complainant wanted to protect other women from the applicant.

126. Therefore, on the balance of probability, the allegations are more likely to be true than not. At the very least, they suggest a pattern of behaviour in the applicant, misinterpreting situations with women and crossing acceptable boundaries of conduct. However, it is the applicant’s failure to disclose the 1999 Charge and the 2014 Complaint as matters having the same nature as the allegations that were made in relation to the disqualifying offence and relevant to this application, that is significant. Accordingly, we find that the applicant has not complied with his statutory duty under s 28(5) of the Act to disclose all matters relevant to his application.

127. If the oral testimony of the applicant is to be believed, the opinion of Ms Sky that the applicant represents a low risk of reoffending, is based on a false premise. We have not given any weight to that opinion.

128. We acknowledge that no matters of complaint about the applicant with respect to children have been disclosed. There is, however, a likelihood that, in acting as an Independent Children’s Lawyer, and in providing legal services to and on behalf of children, the applicant may come into contact with adult females who have the care of children whom he seeks to represent. Associated with that likelihood is the risk that he may cross the boundaries of appropriate behaviour with women whose children he is assisting. Such behaviour would have indirect adverse effects on those children. In addition, we believe there is a risk of inappropriate behaviour towards older teenage females (under the age of 18) whom he could be assisting as an Independent Children’s Lawyer.

129. Having regard to the applicant’s pattern of sexualised behaviour, we consider the risk to the safety of children in the above circumstances is real and not fanciful, consistent with the reasoning in CXZ’s case. The applicant’s own oral evidence is that in his practice he deals mostly with women. We have considered this risk in light of the Law Society’s expressed concern for the “protection of the community” and the applicant’s own evidence that his period of psychological counselling for more than 12 months was based on representations that he now asserts were false. The applicant’s pattern of behaviour in crossing boundaries and making sexual advances with adult females remains unaddressed having regard to the 2014 Complaint which followed his therapeutic counselling with Ms Sky, albeit under false pretences.

Conclusion

130. Pursuant to s 28(7) of the Act, the applicant is presumed to be a risk to the safety of children, unless he proves to the contrary.

131. Having considered the totality of the evidence (consistent with the decision in BKE’s case), and the cumulative effect of the evidence before us (in line with the reasoning in CYY’s case), the Tribunal is not satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children.

132. On that basis, our determination of the application is to affirm the respondent’s Decision of the Children’s Guardian and refuse the application for an enabling order under s 28(1) of the Act.

133. As the Tribunal has not determined that an enabling order may be given to the applicant, the additional considerations in s 30(1A) are not relevant to this decision.

Note for completeness

134. For completeness, these reasons note that this matter was originally set down for hearing on 22 January 2021. However, due to technical difficulties, it was not possible for the applicant to participate using audio-visual capability on that date. The hearing was accordingly adjourned and the matter was relisted for hearing on 31 March 2021.

Orders

135. Accordingly, we make the following orders:

1. The decision of the Children’s Guardian dated 9 November 2019 to refuse to grant the applicant a working with children check clearance is affirmed.

2. The application for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) filed by the applicant on 14 November 2019 is refused and dismissed.

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

Registrar

Amendments

26 July 2021 - [60] - Typographical error corrected.

[62] - "admitted" replaced with "tendered"

Decision last updated: 26 July 2021