EPK v Children's Guardian

[2022] NSWCATAD 369

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EPK v Children’s Guardian [2022] NSWCATAD 369

Hearing dates:

18 August 2022

Date of orders:

17 November 2022

Decision date:

17 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop SC, Senior Member
M Bolt, General Member

Decision:

The application for an enabling order is refused.

Catchwords:

ADMINISTRATIVE LAW — child protection — working with children — disqualifying offence — enabling order — circumstances of offence — conduct of applicant in period since offence occurred — discharge of onus

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 5B, 18, 28, 30, 31, 128

Civil and Administrative Tribunal Act 2013 (NSW), s 38

Crimes Act 1900 (ACT), ss 55, 92E(2)

Evidence Act 1995 (NSW), s 128

Cases Cited:

BKE v Children’s Guardian [2015] NSWSC 523.

Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CSW v Children’s Guardian [2017] NSWCATAD 326

CYY v Children’s Guardian [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Secretary, Department of Justice v LMB [2012] VSCA 143

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

Category:

Principal judgment

Parties:

EPK (First Applicant)
Office of the Children’s Guardian (Respondent)

Representation:

Counsel:
P Santone (Applicant)
M Higgins (Respondent)

Solicitors:
Troy Martin (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00068494

Publication restriction:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 29 July 2022, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant, who in these reasons will be referred to by the pseudonym EPK, applied for a working with children check clearance (Clearance). That application was refused by the respondent (Children’s Guardian) on the basis that EPK was a “disqualified person” under the Child Protection (Working with Children) Act 2012 (NSW) (the Act) having committed a “serious offence”, namely, the offence of “sexual intercourse with a young person”.

2. EPK has applied to the Tribunal for an enabling order under s 28 of the Act. He makes this application so that he can provide contractual work in NSW schools assisting in the repair and maintenance of IT equipment and to allow him to participate in assisting with his son’s sporting teams.

3. The Children’s Guardian opposes EPK’s application.

Issues

4. The issues to be determined in this case are whether, having regard to all of the evidence, we are satisfied on the balance of probabilities that:

1. EPK has displaced the presumption that he is a risk of harm to the safety of children;

2. a reasonable person would allow their child to have direct, unsupervised contact with EPK; and

3. it is in the public interest to make an enabling order.

5. For the reasons set out below, we are not satisfied that EPK has discharged his onus of proof in respect of each of these issues and his application must be dismissed.

Background

6. EPK is 39 years old. He has four biological children aged between the ages of 11 and 22 from four separate relationships. He is currently in a relationship with ED who is not the mother of any of these children.

7. It is not in dispute that EPK had a troubled childhood including being exposed to domestic violence and ultimately left home when he was 14 years of age to live in refuges in the Australian Capital Territory (ACT). He left school in Year 8 and became involved in criminal behaviour from that time.

8. Sometime in 2001, EPK was about 19 years old, he commenced a sexual relationship with AB who was 14 years old and who consented to the sexual conduct. They initially met because they lived together in premises in the ACT with TW who was the mother of EPK’s friend and who had also been in a relationship with AB’s father.

9. AB became pregnant with EPK’s daughter and in October 2002 gave birth to Child B.

10. EPK was charged under s 92E(2) of the Crimes Act 1900 (ACT). He entered a plea of guilty and was sentenced to 13 periods of detention. This offence is the disqualifying offence for the purposes of the Act.

11. In addition to the disqualifying offence, EPK has been charged with numerous offences as set out by the Children’s Guardian in submissions (not disputed by the EPK) as follows:

“On 28 Мау 1998, the Applicant was charged with the offences of 'have custody of an offensive implement in а public place' and 'threaten/injure person for being justice official'. The Applicant attended the Queanbeyan Police Station and shouted, 'The black prick has just assaulted me and I'm going to kill him'. Police followed and arrested the Applicant, during which time he struggled violently and shouted other obscenities. The charge was proved without conviction.

On 6 January 1999, the Applicant was charged with the offence of 'common assault'. The Applicant attended his mother's address to take some property and had an altercation with his half-brother... The Applicant had an argument with his mother who then called Police. The Applicant was convicted and released on probation for а period of 18 months.

On 30 April 1999, the Applicant was charged with the offence of 'common assault'. Тhе Applicant accused his partner of having another boyfriend. The Applicant twisted her arm, forced her to the floor, and punched her with his right first. The Applicant admitted to the assault and made counter allegations of assault against the victim. The Applicant was convicted and released on probation for а period of 18 months.

On 19 December 1999, the Applicant was charged with the offences of 'common assault', 'contravention of order' and 'destroy/damage АСТ government property'. Тhе Applicant damaged the front door of а property, breached а protection order by entering that property knowing that the victim was there and punched her twice in the head with his right hand. The Applicant admitted to each of the offences. Тhе Applicant was convicted of all offences other than 'common assault' and was released on probation for а period of 12 months.

On 2 January 2002, the Applicant was charged with three counts of 'common assault' and 'minor theft'. The Applicant stole а self-inking stamp from а business, and then committed three assaults on three different individuals in-and-around the shopping centre. The Applicant admitted that he committed the assaults.

On 3 April 2002, the Applicant was charged with 'destroy/damage property', two counts of 'harass/menace via communication service', and 'possess offensive weapon'. The Applicant damaged three windows and the wooden front door of а property, whilst possessing а metallic sword and making threats against the occupants of the property via telecommunications.

On 5 March 2003, the Applicant was charged with 'breach bail conditions' and 'common assault'. The Applicant assaulted his former partner in company of their 5-month-old child during а visit to see him. The Applicant's former partner asked for money to be returned to her and the Applicant refused to do so. The Applicant then proceeded to push his former partner to the floor and punch her with а closed fist in the side of her face.

On 24 March 2003, the Applicant was charged with 'common assault' and 'destroy/damage property'. The Applicant assaulted а woman in а stairwell after accusing her of theft of his mobile phone. The Applicant was also alleged to have threatened to destroy her shoes and watch.

On 9 June 2003, the Applicant was charged with 'intentionally wound[ing]' an individual. The Applicant attacked а man with а samurai sword to obtain а mobile phone.

On 6 February 2007, the Applicant was charged with 'drive while disqualified for licence' and two counts of 'common assault'. The Applicant drove а motor vehicle while being disqualified from holding and obtaining а driver licence and assaulted а male with а piece of timber, in the presence of that male's child. The Applicant was convicted, and his imprisonment sentence was suspended for а period of 8 and 12-months, respectively.”

12. Documents before the Tribunal also record EPK as being named а person of interest in numerous records on the Computerised Operational Policing System (COPS) of the New South Wales Police Force. These records were accurately summarised in the Children’s Guardian’s submissions as follows:

“On 14 March 2001 (Е 21083797), the Applicant is alleged to have breached an apprehended violence order against an adult female and а one-year-old female. The adult female alleged that the Applicant took their baby from her home. There were no custody orders in force in relation to the child and Police did not hold concerns regarding the child's wellbeing. The event was suspended as no further action was required.

On 23 October 2001(Е 1 2858423), the Applicant is alleged to have caused extensive damage to the floor of an adult female's home, after an argument between herself and the Applicant over money to рау for а tongue piercing. The event was suspended as the victim did not wish to proceed with charges.

On 17 December 2002 (Е 160 73023), the Applicant is alleged to have stolen the vehicle of аn adult female he knew, after smashing а window at her home and causing the glass to break, and smash over her. The event was suspended without а reason being recorded.

On 19 June 2003 (Е 17601435), the Applicant's former partner reported that she received а phone call from the Applicant asking to see their daughter. The Applicant had no access rights, and when the former partner said nо, the Applicant allegedly stated that ‘If you don't let me see her, I will bash everyone to get to see hеr, I will kick your door down. I will [sic] your house down and then I will take [her] away’. The event was suspended as the victim required no further action.

On 7 June 2004 (Е 20748035), the Applicant allegedly made threats of malicious damage to а male's property and other threats stating that he had а gun and was ‘going to have fun’. The Applicant blamed the male for his recent break up with his girlfriend. The event was suspended as the victim wanted the incident reported only.

On 15 December 2004 (Е 22246625), Police attended а location to execute а family Law Order to retrieve а four-year-child from the Applicant's саrе. The event was suspended as no further action was required.

On 22 July 2007 (Е 31163331 ), Police attended а location in response to а call regarding the physical abuse of а 4-year-old girl, the Applicant's daughter. Тhe Applicant stated that he ‘can't stand’ the child and needs а break with the reporter alleging that the Applicant always hit the child. The reporter also alleged that the Applicant said ‘I've had enough of hеr. I'm going to fucking kill the little bitch’ with reference to his daughter. The child disclosed to Police that the Applicant ‘always hits hеr in the mouth’ and ‘always punches her оn top and back of her [head]’. The event was suspended due to а lack of evidence to substantiate а charge of child abuse or assault.

On 13 June 2009 (Е 37559 247), the Applicant attended а restaurant and asked to speak to the manager regarding obtaining free meals. When asked to produce the relevant vouchers, the Applicant could not produce these vouchers and became aggressive towards the restaurant employee. The Applicant swore at the employee and was aggressive when leaving the restaurant. The Applicant was also aggressive with Police when they contacted him to issue а banning notice. The event was suspended as the victim did not wish to take any action.

On 26 January 2010 (Е 40214924), the Applicant and а pregnant adult female allegedly had аn argument where the Applicant made а threat to the female stating that ‘you better watch your back’. The Applicant had previously made threatening comments to the female regarding her pregnancy including ‘I will give you а thousand bucks if you get rid of the baby’ and ‘If you go out...tonight, you will come back non pregnant'’. The female was fearful that the Applicant would attempt to harm her and was afraid of getting hurt. The event was suspended without reason.

On 15 August 2012 (Е 48764154), an employee contacted Police to report an incident of а threat of malicious damage to the property of an organisation. The Applicant is alleged to have informed an employee of the organisation that ‘I'm going to the store to burn it down and damage it’. The event was suspended as the victim did not wish to make а statement or take the matter further.

On 28 April 2015 (Е 209794096), the Applicant contacted an organisation's service number and spoke with а call centre employee in an ‘agitated and verbally abusive’ manner. The Applicant made threats to attend а store in the organisation and ‘kill the employees’. The event was suspended as the organisation only wanted an event number for records purposes.

On 5 September 2015 (Е 58851175), an adult female with а 3-year-old son contacted Police with concerns that the Applicant does not have regard to her requests for him to stop contacting her, and that he ‘has become particularly angry in recent times and his behaviour seems to be escalating’. When contacted by Police, the Applicant was hostile and abusive, telling Police to ‘fuck off'’. When Police told the Applicant that an AVO as being applied for, he stated ‘You won't be able to find me, I'm moving away from here’. The event was suspended as the victim did not wish for the Applicant to be charged.

On 13 October 2015 (Е 590 43522), the Applicant allegedly made threats over the phone to an employee of an organisation that he would ‘return to [the] organisation with an ахе’. The Applicant was speaking with the employee about getting money for а child that was in his саrе. Police spoke with the Applicant who denied the allegations. The event was suspended as the victim only wanted а report to be made.

On 20 April 2017 (Е 66104353), the Applicant allegedly called а male acquaintance and informed him that he would burn his cars and ‘murder’ his dogs as ‘revenge for the acquaintance's inappropriate behaviour’. The acquaintance had previously requested that his money for an overseas trip be refunded by the Applicant after the acquaintance could no longer attend. The acquaintance had attended the Applicant's home and spoken with the Applicant's partner who later informed the Applicant that the acquaintance had behaved inappropriately. The event was suspended as the victim did not want the Police to contact the Applicant to prevent further issues.

On 1 October 2020 (Е 76224856), the Applicant allegedly called an organisation regarding а warranty claim over а television that he purchased online. The organisation had been ‘receiving а number of rude telephone calls’ from the Applicant. On this occasion, the Applicant said words to the effect of ‘I don't fucking саrе’ and ‘I’ll come there and smash the shop up’ to а female employee during а telephone conversation. Police spoke with the Applicant who denied the threats of doing damage and ‘became rude and belligerent with police’. The event was suspended as the victim only wanted a report made for records purposes.

On 10 February 2021 (Е 80172182), Police attended а shopping complex to speak with the Applicant about an alleged threat made over the phone to an organisation. The Applicant had previously been aggressive over the phone and his relevant accounts with the organisation had been blocked. Тhе Applicant attended the local branch of the organisation to resolve an issue regarding his licence. When the Applicant was not satisfied with the resolution of the issue, he stated that ‘he would attend the organisation again with an ахе’. The officer in charge contacted the Applicant numerous times to resolve the issue, and the Applicant ‘ke[pt] yelling at Police over the phone’. The event was suspended as the victim only wanted а report made for records purposes.”

13. EPK has also been recorded as the defendant in 36 apprehended violence orders (AVOs) (including full and interim AVOs) between 1999 and 2015. He was also recorded as the person in need of protection in three AVOs in 2009.

14. EPK has been in a relationship with ED for several years. He reports that it is a stable relationship but we note that no evidence has been provided by her in these proceedings.

15. EPK first applied for the Clearance on 5 January 2021. That application was refused by the Children’s Guardian on 10 February 2021. EPK subsequently applied to the Tribunal on 3 March 2021.

16. There is no dispute that we have jurisdiction to determine EPK’s application following: the refusal of the Children’s Guardian to grant a Clearance due to EPK being a disqualified person; and EPK’s subsequent filing of the application to this Tribunal within the required time limits.

Relevant law and legal principles

Working with children regime

17. The jurisdiction of the Tribunal under Part 4 of the Act, is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA).

18. The object of the Act is to protect children by preventing disqualified persons from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

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

20. Section 18 of the Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted of certain offences if committed as adults. Such persons are referred to “disqualified persons”: s 18(1). Schedule 2 relevantly specified an offence under s 92E(2) of the Crimes Act being the offence of “sexual intercourse with a young person” (which is now s 55 of the Crimes Act).

21. Section 28 of the Act provides that a disqualified person, who has been refused a Clearance because the person is disqualified, may apply to the Tribunal for an “enabling order” declaring that the person is not to be treated as a disqualified person for the purposes of the Act in respect of the offence specified in the order. An enabling order cannot be made subject to conditions: s 28(8).

22. On an application to the Tribunal for an enabling order, an applicant must fully disclose all matters relevant to the application: s 28(5).

23. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6).

Assessment of Risk

24. Under s 28(7) of the Act, the applicant is presumed to pose a “risk to the safety of children” unless proved otherwise on the application before the Tribunal: s 28(7).

25. Section 5B of the Act provides that “[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”. An assessment of risk requires the Tribunal to determine “whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child” as opposed to a “fanciful or theoretical risk”: Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; BKE v Children’s Guardian [2015] NSWSC 523.

26. The Tribunal is required to consider the matters in s 30 of the Act which provides:

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.

27. Further, under s 30(1A) of the Act, the Tribunal may not make an order which enables a person to work with children unless also satisfied that:

(a)   A reasonable person would allow his or her child to have direct contact with the affected person that was not 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.

Reasonable person test

28. The “reasonable person test” was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 at [36] where it was said that the 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.”

29. This approach has been endorsed in several cases including CSW v Children’s Guardian [2017] NSWCATAD 326 at [136]-[137]; (see also CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262; CRG v Children’s Guardian [2017] NSWCATAD 295 at [85]; and DAI v Children’s Guardian [2017] NSWCATAD 308 at [90].

Public interest test

30. In Secretary, Department of Justice v LMB [2012] VSCA 143 at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 at [20]; (2009) 240 CLR 140:

‘The term “in the public interest” is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.’

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

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

The hearing and evidence

31. EPK filed:

1. Application for Review dated 3 March 2021;

2. Statement of EPK undated;

3. Four references in support of EPK by four of his friends all dated in the period 1 November to 15 November 2021;

4. Psychological Assessment of EPK by a forensic psychologist, referred to with the pseudonym “JM”, dated 8 June 2022; and

5. Written submissions.

32. The respondent filed a bundle of documents on 10 March 2022 comprising a National Criminal History Check of EPK; his history of apprehended violence orders; response from the NSW Police Force Child Abuse and Sex Crimes Squad; records relating to EPK’s offences; s 31 response from Corrective Services regarding EPK including documents relating to an anger management program. The respondent also filed written submissions.

33. The hearing was conducted via AVL. Counsel for each of the respective parties made oral submissions. EPK and JM were both cross-examined.

34. Pursuant to s 38(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal granted EPK a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of his cross-examination about whether his work providing IT support and repairs to hardware involves direct contact with children in an unsupervised context.

Applicant’s submissions

35. Mr Santone who appeared for EPK, contended that the disqualifying offence was at the lower end of seriousness with EPK only receiving a sentence of 13 detention periods for an offence which otherwise carried a maximum penalty of 14 years; and that EPK had indicated his insight into the offence and that no further criminal offences had occurred since 2007 (over 15 years ago).

36. It was contended that very little weight should be given to the extensive COPS record of alleged incidents where EPK has been named as a person of interest for the reasons that the evidence has not been tested and is unable to be tested in these proceedings as the makers of the allegations are unknown or intentionally omitted; the allegations are vague and provide little assistance; and do not allege a crime.

37. Further, it was argued that little if any weight should be given to the material from the Department of Communities and Justice (DOJ) for the same reasons as those given in relation to the COPS records. In addition, it was contended that on the balance of probabilities, the allegations were likely the result of false or overexaggerated allegations involving a child diagnosed with autism and a history of running away and risk taking behaviours.

38. The submissions of the Children’s Guardian set out the statutory framework and applicable principles; the relevant material before the Tribunal addressing the s 30(1) and (1A) considerations; the application of the reasonable person test and public interest test and submitted that the application for the enabling order should be dismissed.

39. In particular, Mr Higgins who appeared for the Children’s Guardian, contended that EPK continues to be a risk to children until he rebuts the presumption about the risk to the safety of children if an enabling order is made; something EPK has not done in these proceedings.

40. It was further contended that EPK had a credibility issue and a lack of candour particularly in relation to recent events and about which he self-reported to the forensic psychologist. It was also argued that EPK had a lack of insight into his criminal conduct demonstrated by his attempt to minimise the disqualification offence by suggesting that the victim was close to the age of consent, was mature for her age and looked older than she was.

EPK’s evidence

41. EPK was cross-examined about the disqualification offence. We accepted EPK’s evidence that his life had been chaotic in his teens and 20s and that he did stupid things until his life settled down more recently when he got his own place.

42. The Children’s Guardian focused on EPK’s inconsistency in his documentary evidence describing AB as 14 years of age and also 15 years of age; that she was mature for her age and physically looked older than her age as to suggest that she appeared closer to the age of consent and minimise his offence. EPK conceded that he miscalculated dates but that this was not to minimise his offence. It seemed to us that he genuinely displayed insight into the disqualification offence and that he understood that he grew up with attachment issues because he did not have parent figures in his life.

43. EPK gave evidence about his difficulties with anger management in the past. He attended an anger management course about nine years ago where he was taught strategies for dealing with frustrating situations. EPK candidly admitted that in the past he was a “hot head” and that he used to turn to violence to deal with his problems.

44. EPK was cross-examined about numerous complaints and assessments of risk relating to Child B in response to reporting by either Child B herself or someone providing respite care. The documentary evidence demonstrated that Child B had intellectual delays; that EPK had sought approval for a NDIS plan; that the Youth Hope Team had supported EPK for some time; that Child B had attended a mental health support organisation; and importantly, that EPK had been engaged and agreeable to do family work required to assist Child B.

45. In response to allegations that he was physically aggressive with Child B, EPK strongly denied it. EPK explained that Child B suffered from mental health issues and described one of the reported occasions as being when she tried to commit suicide by cutting her wrists. EPK had to physically restrain her to prevent her doing this while getting help.

46. There were also reports involving EPK’s friend purportedly attempting to groom Child B. When she told EPK he confronted his friend, called the police and also reported it to Community Services. EPK says he has not spoken to his friend since.

47. In these proceedings we have no way of testing the reporting about Child B. She is not a witness and the complainants are unidentified. However, we formed the view that EPK was frank and forthcoming in his evidence about Child B and we accepted his evidence about her and the various incidents concerning her, including his frank admission that he was verbally abusive to teachers at school in 2017 when EPK refused to come home and they decided to arrange respite care with community services. He also frankly accepted that on one of the reported occasions he got angry with police when they interviewed him about bruises on Child B’s body but that this was before his anger management course. He explained he would act differently now if that occurred – he would talk to the police and behave more calmly.

48. Since undertaking the anger management program, EPK is aware of the physical symptoms he exhibits when starting to lose his temper, such as sweaty palms, tight chest and raised voice. He has learnt that when he recognises these symptoms it is best for him to do deep breathing and walk away from the situation. EPK said that his partner helps him out because she can take over and deal with situations such as frustrating emails, text messages, grumpy customers. We accepted EPK’s evidence that he undertook an anger management program and that he has been attempting to get his anger management issues under control.

49. EPK was also cross-examined about two reported incidents which named him as the person of interest. The first was the incident on 1 October 2020; the second was on 9 February 2021. The report of these incidents is summarised at [12] above. At first EPK said these incidents had nothing to do with him.

50. However, when confronted in cross-examination that he had self-reported at least one of these incidents to JM, EPK said he had been confused earlier in the cross-examination when he had denied them. He indicated that he had not read JM’s report as he struggles with reading but ED would have read it out to him. EPK said that JM had asked him numerous questions but he did not know if she had asked him about those two specific incidents on 1 October 2020 and 9 February 2021. Ultimately, EPK admitted that he was abusive to council in 2021 because of an issue about parking on the lawn without a permit. He denied that he ever said he would bring an axe and smash things.

51. We noticed a common theme throughout numerous documented complaints, that the person of interest referred to in the complaints consistently used phrases to the effect that he was going to “smash” premises or “bring an axe” to damage property.

52. We infer from the consistency of the behaviour reported in these complaints the admission of EPK in relation to at least one of them, that these incidents more than likely relate to EPK. We find that EPK was not fully frank in his evidence about these incidents and did not want to volunteer information which might paint him in a bad light. His lack of transparency with the Tribunal about incidents which occurred as recent as 2021 is troubling.

Expert evidence

53. JM is a forensic psychologist who EPK engaged to provide a report in these proceedings. She specialises in assessing and treating violent offenders but does not have expertise in child protection.

54. It became apparent in cross-examination that JM did not have access to all of the materials that are before the Tribunal. Her assessment of EPK was based largely on his self-reporting.

55. In her report, JM determined that EPK poses a minimal risk to children, that he is a below average risk of sexual and violent offending and noted that EPK’s past aggressive behaviour has been directed at adults. However, in cross-examination she conceded that the method she utilises in making the assessment employs a Canadian normative sample which only has regard to matters brought before the courts. The score underpinning her assessment is based on conduct which results in arrest and criminal justice processes and does not include behaviour or conduct that does not result in a charge.

56. She noted that EPK has been offence free since 2015 but has engaged in verbal aggression and threats in 2020 and 2021. While JM did not interview ED, she noted that EPK is in a long-term stable relationship with ED but that if the relationship became unstable, EPK might revert to similar aggressive behaviour as that demonstrated in the past.

57. JM explained that she discussed the incidents that occurred in 2020 and 2021 with EPK and said that he attempted to minimise his interpersonal aggressive behaviour (as opposed to taking responsibility for it and appreciating how it impacts other people). She noted that EPK blames this behaviour on feeling frustrated with things that occur in the business.

58. JM agreed that EPK had engaged in unlawful conduct as recently as 2021 when he threatened violence to people and that EPK’s problem is aggression. She also said that if these incidents were part of her assessment, it would affect her conclusions but because they did not result in charges, they were not factored into her assessment.

59. JM recommended EPK undertake a course of anger management to prevent or reduce the changes of him engaging in aggressive behaviour in the future. It became apparent in cross-examination that JM was unaware that EPK had already undertaken a course in anger management several years ago.

Referees

60. We note various references given in support of EPK by his friends.

61. However, these references do not disclose knowledge of the disqualifying offence, other criminal offending or of EPK’s aggressive and violent behaviour in the period following the disqualifying offence and as recently as 2021. We therefore give those references little weight.

Section 30(1) considerations

62. In determining this application, the Tribunal has considered the following factors as 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

63. The disqualification offence was serious due to the fact that it was child related and sexual in nature. There is no dispute that EPK knew AB was a child and yet continued to engage in a sexual relationship with her for an extended period.

64. His knowledge that the sexual conduct was wrong was demonstrated in the evidence of his police interview in which he stated “you’ll get me for stat rape in about 6 months anyway”.

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

65. A period of 20 years has passed since the disqualification offence. There have been no further charges or convictions of a similar nature since that time.

66. However, there have been numerous charges, convictions and allegations in respect of EPK’s conduct including as recently as 2021. This conduct has included aggression towards or in the presence of children.

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

67. EPK was 19 at the time of the disqualifying offence.

(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

68. AB was 14 years old at the time of the disqualifying offence and was vulnerable given her father left her in the care of TM.

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

69. EPK is 5 years older the AB and their relationship was intimate being sexual partners.

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

70. EPK has acknowledged that he knew the victim was a child at the time of the offence. Further, they were in an intimate relationship, their guardian TW had expressed her intolerance towards the relationship given AB’s age and EPK disclosed his knowledge of AB’s age at that time in a police interview.

(g)  the person’s present age

71. EPK is 39 years of age.

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

72. EPK has an extensive criminal history following the specified offence as set out in [10]. This includes charges between the period 1997 to 2007 relating to physical assault (wounding, common assault), property damage, offensive behaviour, driving offences and larceny. We find that EPK’s criminal history is serious.

73. While there are no criminal records of charged offences after 2007, there have been numerous reports of EPK engaging in aggressive and violent behaviour towards intimate partners, friends and acquaintances, and members of the public. These are recorded at [11] above. There are also numerous records of EPK being recorded as a person of interest in incidents involving aggression, abuse and threats. These are recorded at [12] above.

74. EPK discussed the 2020 and 2021 incidents with JM and despite initially denying he was involved in any way in these incidents, ultimately conceded in cross-examination that at least the 2021 was conduct involving him: he was abusive, threatening and aggressive in respect of a parking permit. This shows EPK’s violent, abusive and aggressive behaviour has continued until recently.

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

75. We consider there is very little risk of repetition of the disqualifying offence. It occurred over 20 years ago; EPK has demonstrated insight into the offence; no other complaints of a similar nature have been made against EPK. The Children’s Guardian did not dispute this.

76. However, we find that it is likely EPK will engage in violent and aggressive behaviour if triggered again. JM reported this was likely at least in relation to ED if the relationship became unstable and noted that EPK tried to minimise recent incidents involving such behaviour instead of taking responsibility for it. Further, given the recent incident in 2021 which EPK conceded occurred, it is more probable that future incidents involving violence, aggression or abuse will occur if EPK is unable to manage his anger when triggered.

75. Some of the previous incidents of violence, aggression and abuse have occurred in the presence of children which has placed those children at risk of harm. EPK has demonstrated a lack of insight into these events except to acknowledge that his anger gets the better of him and he is trying to manage it with the strategies learned at the anger management course. However, we note that JM reported that EPK attempted to minimise these previous incidents when describing them to her. We consider this attempt to minimise demonstrates a lack of insight.

76. Consequently we consider there is a risk this type of behaviour may reoccur including in the presence of children.

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

79. There are no other orders that the Tribunal is aware of.

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

80. We have already set out above the evidence given by EPK and JM in this proceeding which we have taken into account.

81. While we accept that EPK has demonstrated insight into the disqualifying offence and has explained that his personal circumstances have changed since the offence, he has failed to demonstrate insight into the more recent events involving aggression, violence and abuse. Further, despite giving evidence about the anger management course he undertook several years ago, he did not disclose this to JM and he has not indicated whether further remedial actions will be taken by him to better manage his anger and frustrations other than through violence.

82. We have also had regard to the character references provided for EPK in support of his application. While it appears the referees were aware of his application for an enabling order and/or a Clearance, it is not apparent that they are aware of his disqualifying offence or more recent charges and violent behaviour. Consequently, we have given these little weight.

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

83. Not applicable.

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

84. The Children’s Guardian provided material subject to s 31 of the Act which record reports of EPK’s alleged aggressive and intimidatory behaviour towards his own children. We have referred to some of the incidents in [12] above.

85. There were other reports, apparently by Child B, to the Department of Communities and Justice, that in 2016 EPK said to her words to the effect that he would “bash her until she bleeds and requires hospitalisation”, that “she is fat, useless and that no one loves her” and that other children ‘hate you because you’re a whiney little bitch” and “cut a little deeper and kill yourself and I can bury you in the backyard”.

86. As noted above, we have no way of testing these allegations. We accepted the evidence of EPK in respect of Child B in relation to her mental health issues. This evidence was supported by the documentary evidence about her treatment for these issues. We found EPK’s evidence about Child B compelling and truthful. This is despite his less than frank evidence about the 2020 and 2021 incidents to which we have referred previously. Consequently we do not accept the Children’s Guardian’s submission that EPK’s violent and intimidatory behaviour extended to his children.

Our findings

87. Having considered all of the oral and documentary evidence before us including the evidence of EPK and JM and taking into account all of the s 30 considerations, we are not satisfied, on the balance of probabilities, that EPK has rebutted the presumption that he poses a risk to the safety of children.

Section 30(1A) Considerations and findings

88. Notwithstanding our conclusions about EPK not rebutting the presumption that he is a risk of harm to the safety of children, we would not make an enabling order. This is on the basis that we are satisfied that a reasonable person with knowledge of all the facts and circumstances, would not allow his or her child to have direct contact with EPK whilst unsupervised by another person and that the public interest weighs against such an order being made in this case.

89. In this regard, the reasonable person would:

1. note the recent events in October 2020 and February 2021 which EPK did not, at first, voluntarily disclose in these proceedings;

2. have regard to the disqualifying offence as well as the numerous criminal offences up to 2007 noting that a substantial period of time has passed since those offences but that they are serious offences;

3. note EPK has continued to engage in behaviour of becoming verbally abusive, aggressive and of making threats and that, despite some improvement, such behaviour has not yet been completely rehabilitated by anger management programs.

90. We are also satisfied, having regard to the subject matter, scope and purpose of the Act to protect children from child abuse, that it is in the public interest to refuse EPK’s application for an enabling order. In making this conclusion, we have had regard to EPK’s desire to assist as a parent helper with his son’s sporting activities (whether soccer, basketball or something else). We also had regard to and acknowledge EPK’s right to engage in work; that because of his past criminal behaviour his opportunities for work have been limited; and he has an opportunity to take advantage of a contract role of providing IT assistance in schools. However, particularly in light of the disclosures he made to the effect that on occasion, he has unsupervised contact with children that come into the shop for IT assistance (evidence for which the Tribunal granted him a s 128 certificate), we have doubts about his insight into the importance of the protective function and regime provided for under the Act. As noted above, he has also demonstrated a lack of insight into his violent conduct post the disqualifying offence, most recently in 2021.

91. Upon balancing EPK’s right to work and engage in a parent-helper function for his son’s sporting activities, contrasted with the protection of children and the objects of the Act, in this instance making an enabling order would be against the public interest.

ORDER

1. The application for an enabling order is refused.

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: 17 November 2022