ENH v Children's Guardian - [2021] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: ENH v Children’s Guardian [2021] NSWCATAD 203
Hearing dates: On the papers
Date of orders: 14 July 2021
Decision date: 14 July 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, Senior Member
M Bolt, General Member
Decision:
(1) The applicant is not to be treated as a disqualified person for the offence, in respect of s 323 of the Criminal Code Act Compilation Act 1913 (WA) for which he was convicted on 9 April 2008.
(2) The Children’s Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision.

Catchwords:
ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a ‘disqualified person’ having been convicted of a ‘disqualifying offence’ (indecent assault) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Criminal Code Act Compilation Act 1913 (WA)

Cases Cited:
Commission for Children and Young People v V [2002] NSWSC 949
BKE v Office of the Children’s Guardian [2015] NSWSC 523
CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255
VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category: Principal judgment
Parties: ENH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel :
RJ Pietriche (Respondent)
Solicitors:
Tony Cox Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/00348087
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

Introduction

On 8 December 2020, the applicant applied for an enabling order pursuant to s 28 (1) of the Child Protection (Working with Children) Act (NSW)2012 (the Act) following a decision of the respondent to refuse to grant him a working with children check clearance on the basis that he is a disqualified person under the Act. That decision was made on 15 April 2019.
The applicant in these proceedings is referred to as ENH. Due to the sensitive nature of these proceedings an order was made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 ) (the CAT Act). The name of the applicant and any child referred to in the evidence before the Tribunal or the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.
ENH seeks a finding by the Tribunal that he does not pose a risk to children. ENH is presumed to be a risk to children, because he has a conviction for indecent assault.
The Children’s Guardian supports the applicant’s application for an enabling order.
Pursuant to s 52 of the CAT Act and by consent, a hearing was not held.
In summary, we are satisfied on the available evidence that the applicant has discharged the required burden of proof and find that he does not pose a real and appreciable risk to the safety and wellbeing of children and young people. Therefore, the application for an enabling order is granted. Our reasons are set out below.

The statutory scheme

The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work.
Section 18 of the Act provides:

18 Determination of applications for clearances

The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
1. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 28 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.
2. The Children’s Guardian must refuse to grant a working with children check clearance if the applicant is a “disqualified person” under s 18 (1) of the Act. A person will be considered a disqualified person for the purpose of the Act where they have been convicted of an offence specified in Schedule 2 to the Act if that offence was committed as an adult.
3. The disqualifying offence is identified at s 1(1)(z) of Schedule 2 to the Act, being an offence under a law of another State that, if committed in New South Wales, would constitute an offence under cl 1 of Schedule 2 to the Act.
4. It is conceded by the parties that although ENH’s conviction is recorded as spent that that does not prevent a finding that he was convicted of the disqualifying offence for the purpose of section 18(1) of the Act. Section 5 (1) of the Act defines conviction to include 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. The fact that ENH entered a plea of not guilty and proceeded to trial where he was found guilty of the offence of indecent assault, brings his conduct within the scope of the Act.
5. When determining an application under s 28(1) of the Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

“(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,

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.”

Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides:

“(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.”

The disqualifying offence

On 28 October 2007 ENH was charged with the offence of indecent assault under s 323 of the Criminal Code Act Compilation Act 1913 (WA) (the disqualifying offence). That section provides

Indecent assault

A person who unlawfully and indecently assaults another person is guilty of a crime and liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

In evidence before us was a statement of material facts prepared by the Western Australian Police in relation to the disqualifying offence. The disqualifying offence was committed against a female taxi driver. This statement of material facts sets out that on 28 October 2007 ENH was picked up by a taxi driven by the complainant who was instructed by ENH to take him to the local airport. During the course of that journey the complainant reported that ENH reached over and touched her vagina on the outside of her jeans. The complainant immediately pulled the vehicle over and called her employer on a two-way radio in the taxi. Her employer then reported the matter to Police. Shortly after, Police attended the scene and ENH was arrested and conveyed to the local Police station. During the course of a recorded interview he made no admissions in relation to the commission of the alleged offence. However, he subsequently entered a plea of not guilty in the local Magistrates Court on 18 December 2007. On 9 April 2008 ENH was convicted of the offence and ordered to pay a fine of $1000.

Does ENH pose a risk to the safety of children?

A risk to the safety of children is defined in s 5B of the Act as a “real and appreciable” risk. This requires that the Tribunal determine whether in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on a child: Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].
The Tribunal must consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant 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 at [ 42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].
Set out below are our findings in relation to each of the s 30 (1) factors.

The seriousness of the offence (s 30(1)(a))

There can be no doubt that the disqualifying offence was objectively serious. This is reflected in the penalty prescribed of up to two years imprisonment and a fine of up to $24,000. However in our view this offence lies at the lower end of the scale of seriousness for such an offence. There were no aggravating factors such as violence, threats or coercion or indeed any suggestion that the act was planned. The touching was momentary and does not on the material in evidence before us appear to have been accompanied by any other inappropriate sexualised conduct by ENH.
ENH disclosed in a statement dated 28 November 2007 that he had consumed a substantial amount of alcohol prior to the offence, something that was unusual for him. He had just completed 24 days of shifts at his work in a remote area of Western Australia in extreme conditions of heat. He had not slept the night before and did not consume any food prior to consuming the alcohol.
The fact that the applicant was dealt with by way of a fine of $1000 and no other penalty is consistent with our view that the offence was at the lower end of the range of seriousness.

The period of time since the disqualifying offence (s 30(1)(b))

The seriousness of ENH’s criminal history and the conduct of ENH since the commission of the disqualifying offence ( s 30(1)(h))

The disqualifying offence occurred nearly 14 years ago in October 2007.
Neither before or after the disqualifying offence have there been any issues or concerns raised in regard to ENH’s conduct with children identified on the material before us. ENH has not had any criminal convictions apart from the disqualifying offence. There was no evidence available to us which indicated he had been the subject of any investigations, complaints, disciplinary action or any other events that could be considered adverse to him.
We consider the length of time since the offences occurred and that no events in the intervening period which could be considered adverse to the applicant have been brought to our attention, weighs in favour of the applicant being granted a clearance.

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) )

ENH was 47 at the time the offence was committed and is now 60. The victim was also 47 at the time of the offence. No issue therefore arises as to whether ENH knew the victim was a child.
The circumstances of the offence on the evidence available to us do not involve any factors which indicate any particular vulnerability of the victim or coercion or exploitation of the victim by the applicant. That the applicant committed an offence against the victim is not in doubt. We agree with the observation made in the submissions made on behalf of the Children’s Guardian that the actions of the victim in the period immediately after the offence do not suggest any particular vulnerability. She was able to remove ENH from her taxi and make a call to her employer who contacted the Police. On the evidence available she appears to have showed fortitude and courage in waiting at the scene with ENH until the Police arrived.

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))

We considered a report dated 26 April 2021 of Dr Richard Furst, Forensic Psychiatrist who provided a risk assessment so that he can assist the Tribunal in determining whether an enabling order should be granted. Dr Furst’s report was commissioned by ENH. The report was not contradicted by other expert evidence.
Dr Furst reached the conclusion that the likelihood of ENH re-offending is very low/minimal, including offending in the manner he did in 2007. Dr Furst says it is re-assuring that the incident was a one-off incident that was out of character for ENH and occurring at a time when ENH was intoxicated and sleep deprived.
Dr Furst points to the following matters:

ENH has no other history of sexual offences either before or after the incident;

ENH has never offended against children and has been married for 34 years with a long history of stable employment;

is caring and supportive towards his wife, sons and grandchildren;

there is no evidence of antisocial attitudes, sexual preoccupation or hyper-sexuality on ENH’s part;

We have placed substantial weight on Dr Furst’s evidence which we consider was credible, balanced and weighs in favour of an enabling order being granted
It is now nearly 14 years since the disqualifying offence. In that time ENH has not been the subject of any further offending of any nature. His long history of stable employment, his long marriage and family relationships are in our view protective factors and weigh in favour of ENH posing a very low risk of re-offending or in engaging in conduct that would pose a risk of harm to the safety of children.
The weight of the evidence weighs overwhelmingly in support of a conclusion that the likelihood of the applicant re-offending is very low.

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

There is no evidence of any order of a court or tribunal that is in force in relation to the applicant.

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

We have considered and placed substantial weight upon the following evidence provided by ENH, being his statutory declaration filed on 30 April 2021 and the report of Dr Furst. We have had regard to the fact that ENH seeks the clearance so that he is can assist his wife with care of his grandson. His grandson was placed in the care of his wife by the Department of Communities and Justice (DCJ) in 2019 due to concerns regarding ENH’s son’s history of drug and alcohol abuse and the mother of the child having a diagnosis of an enduring mental illness, schizophrenia.
Against this background, as a result of the refusal of his application for a working with children check clearance ENH has had to move out of the matrimonial home and stays with his mother-in-law when he is not working shifts in Western Australia. This is so that his wife can maintain her care of their grandson and meet DCJ’s requirements in relation to appropriate care arrangements. These requirements presumably include that members of the household involved in caring for the child have working with children check clearances.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1) (j1))

There was no information relevant to this section bought to our attention.

Any other matters that the Children’s Guardian considers necessary (s30(1)(k))

The Children’s Guardian submits that the presumption that ENH poses a risk to the safety of children has been rebutted by ENH.

Has the applicant discharged his onus in rebutting the presumption that he poses a risk to the safety of children?

Based on the material before the Tribunal, the matters set out in s 30(1) of the Act, the paramount consideration in s 4 of the Act and our findings above, we are satisfied that the applicant has rebutted the statutory presumption and does not pose a real and appreciable risk to children. In summary we have reached this conclusion because:

the disqualifying offence of which the applicant was convicted in 2008, while very serious, occurred nearly 14 years ago and was offending conduct at the lower end of the scale of seriousness for this type of offence. The victim was not a child;

there is no evidence of the applicant having acted in this way previously or since that time;

Since the disqualifying offence committed by ENH in 2007 there is no evidence of any conduct that could be considered adverse to the applicant;

the applicant is now 60 years of age and is genuinely sorry for what he did in 2007;

We accept Dr Furst’s finding of the identifiable protective factors against the applicant reoffending. These include the applicant’s history of stable employment for many years and the stability of his marriage and family life with his wife, children and grandchildren.

Would a reasonable person allow his or her child to have direct, unsupervised contact with ENH whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant? (s 30(1) A)

Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected 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 child-related work, and

it is in the public interest to make such an order

In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the 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.

In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know the applicant’s criminal history being his conviction for the disqualifying offence. We are satisfied that a reasonable person would have regard to all of the relevant facts before the Tribunal and the fact it is nearly 14 years since the disqualifying offence was committed by the applicant and that he has had an unblemished record both before and since then. The reasonable person would have regard to his stable marriage and employment history and the report of Dr Furst that the applicant’s risk of recidivism is at the very low end of the range.
Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with ENH whilst he is engaged in child-related work.
The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.
The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255 and CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262
The applicant has committed one serious offence. He now wishes to assist his wife in the care of their grandchild who has been placed in his wife’s care by DCJ and it is for this purpose he seeks an enabling order so that he can obtain a working with children check. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.
In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would 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, and that it is in the public interest to make an enabling order.

Orders

Accordingly, we make the following orders:

The applicant is not to be treated as a disqualified person for the offence, in respect of s 323 of the Criminal Code Act Compilation Act 1913 (WA) for which he was convicted on 9 April 2008.

The Children’s Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision.

**********

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

22 July 2021 - Typographical error in Order 1

22 July 2021 - Typographical error

Decision last updated: 22 July 2021

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Citations

ENH v Children's Guardian [2021] NSWCATAD 203

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

5

Commission for Young People v V [2002] NSWSC 949

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

Medium Neutral Citation:	ENH v Children’s Guardian [2021] NSWCATAD 203
Hearing dates:	On the papers
Date of orders:	14 July 2021
Decision date:	14 July 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member M Bolt, General Member
Decision:	(1) The applicant is not to be treated as a disqualified person for the offence, in respect of s 323 of the Criminal Code Act Compilation Act 1913 (WA) for which he was convicted on 9 April 2008. (2) The Children’s Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision.
Catchwords:	ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a ‘disqualified person’ having been convicted of a ‘disqualifying offence’ (indecent assault) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code Act Compilation Act 1913 (WA)
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	ENH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel : RJ Pietriche (Respondent) Solicitors: Tony Cox Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/00348087
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.