Erv v Children's Guardian

[2021] NSWCATAD 332

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERV v Children’s Guardian [2021] NSWCATAD 332

Hearing dates:

On the papers

Date of orders:

17 November 2021

Decision date:

17 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Organ, Senior Member
Dr F Duffy, General Member

Decision:

(1)   The applicant is not to be treated as a disqualified person for the offence, in respect of s 56(1) of the Criminal Law Consolidation Act 1913 (South Australia) for which he was convicted on 4 May 2020.

(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 Law Consolidation Act 1913 (South Australia)

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

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

Category:

Principal judgment

Parties:

ERV (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00191986

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

1. On 2 July 2021, the applicant applied for an enabling order pursuant to s 28 (1) of the Child Protection (Working with Children) Act (NSW)2012 (the Child Protection 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 Child Protection Act. That decision was made on 4 June 2021.

2. The applicant in these proceedings is referred to as ERV. 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.

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children, because he has a conviction for indecent assault.

4. The Children’s Guardian supports the applicant’s application for an enabling order.

5. Pursuant to s 52 of the CAT Act and by consent, a hearing was not held.

6. 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

7. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Child Protection Act: s 4 of the Act.

8. 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.

9. 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 Child Protection Act). A child related role is set out in s 6(3) of the Child Protection Act. It is not disputed that the role that the applicant proposes to perform is child related work.

10. Section 18 of the Act provides:

18 Determination of applications for clearances

(1)   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.

11. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 28 of the Child Protection Act, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.

12. 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.

13. 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.

14. 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,

(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.”

15. Further, pursuant to s 30(1A) of the Child Protection 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

16. On 4 May 2020 the applicant pleaded guilty to the offence of “indecently assault a person - basic offence” under s 56(1) of the Criminal Law Consolidation Act 1913 (South Australia) (the disqualifying offence). That section provides

56.   Indecent assault

1. A person who indecently assaults another person is guilty of an offence.

Maximum penalty:

          (a)         for a basic offence—imprisonment for 8 years;

          (b)         for an aggravated offence—imprisonment for 10 years.

(2) If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.

17. In evidence before us was a statement of facts of the charge prepared by the South Australian Police in relation to the disqualifying offence. This statement sets out that at about 4.00am on 5 January 2019 the female victim was at a nightclub in Adelaide with her boyfriend and a group of friends. The victim was standing on the dance floor in front of her boyfriend looking at the stage when she felt a hand grab and squeeze the right side of her bottom quite hard. She looked left towards her boyfriend and could see both of his hands were up near his face. She could still feel pressure on her bottom and she then looked to her right and saw a male later identified to be the applicant pulling his arm back towards him. He was grinning at her. She asked him what he was doing before turning back to face the stage. The applicant kept his hand on her bottom for about four or five seconds.

18. Shortly after the initial incident she felt a second squeeze on the right side of her bottom. She turned to face the same male and said “Can you stop.” The applicant kept his hand on her bottom for a longer time. Two unknown males pushed in between her and her boyfriend saying “he was just too drunk.” The applicant was in between these two males and he pushed one of his arms through the two males and grabbed her shirt. His finger touched her breast but did not scratch or leave any injuries. She pulled her boyfriend away concerned that the situation could escalate but the applicant walked towards her and her boyfriend and her boyfriend punched the applicant. Security then approached and stayed with them until Police arrived.

19. The victim’s boyfriend was subsequently arrested by Police in relation to the assault of the applicant. When Police interviewed the male in connection with the assault the male mentioned he may have “lightly touched’ a girl’s bottom. Police subsequently viewed CCTV footage of the incident from the nightclub after the victim made a formal report to the Police. This showed the applicant in close proximity to the victim. The CCTV footage shows the applicant extending his left arm towards the victim on two occasions within a couple of minutes although his hand could not be seen.

20. The applicant pleaded guilty to the charge under s. 56 (1) of the Criminal Law Consolidation Act 1935 (SA). The outcome on 4 May 2020 at Adelaide Magistrates Court was that the applicant was given a good behaviour bond for three months with a fine of $250. No conviction was recorded.

Does ERV pose a risk to the safety of children?

21. 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].

22. 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].

23. 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))

24. There can be no doubt that the disqualifying offence was objectively serious. This is reflected in the penalty prescribed of up to eight years imprisonment. 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. Alcohol appears to have played a significant factor in the commission of the offence by the applicant. The applicant disclosed to a Clinical Psychologist he saw on ten occasions, including on five occasions prior to commission of the disqualifying offence, that he had historic relationship difficulties. The Psychologist says the applicant resorted to excessive drinking as an avoidance strategy.

25. The fact that the applicant was dealt with by way of a fine of $250 and a three month good behaviour bond 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 the applicant’s criminal history and the conduct of the applicant since the commission of the disqualifying offence ( s 30(1)(h))

26. The disqualifying offence occurred approximately two year and 10 months ago on 5 January 2019.

27. Neither before or after the disqualifying offence have there been any issues or concerns raised in regard to the applicant’s conduct with children identified on the material before us. 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.

28. That there are no events since the disqualifying events which could be considered adverse to the applicant that 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) )

29. The applicant was 26 at the time the offence was committed and is now 29. The age of the victim is not known. She was in licensed premises in a nightclub with her boyfriend in the early hours of the morning and it appears reasonable to assume she was at least 18 years old in light of this.

30. 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.

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))

31. We considered a report dated 6 April 2020 of Mr Stephen Booth, Clinical Psychologist who provided a report for the purpose of the criminal proceedings against the applicant.

32. The purpose of the applicant’s treatment with Mr Booth was to address his historic relationship difficulties and his resulting generalised anxiety. He outlines the positive steps the applicant has taken in in respect to his alcohol consumption. Mr Booth concluded as follows

Considering the time which has passed since [the applicant’s] relationship breakdown, his acknowledgement and expressed remorse, his behavioural changes and his productive current areas of focus, I consider him to be at a low risk of reoffending. I consider this event, although obviously impactful and disturbing for all involved, to be an example of acute mood and behaviour dysregulation in response to exceptional circumstances, and lack of skill in dealing with the challenges associated with these circumstances in a healthy way.

33. Mr Booth’s opinion which was uncontradicted weighs in favour of an enabling order being granted.

34. It is now nearly three years since the disqualifying offence. In that time the applicant has not been the subject of any further offending of any nature. He has a history of stable employment evidenced by a reference submitted to the Tribunal by the applicant from his former employer in Adelaide which was tendered in the criminal proceedings. His stable employment and family support which is referred to by Mr Booth are in our view protective factors and weigh in favour of the applicant posing a low risk of re-offending or in engaging in conduct that would pose a risk of harm to the safety of children.

35. The weight of the evidence supports a conclusion that the likelihood of the applicant re-offending is low.

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

36. 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))

37. The applicant provided three written character references. Whilst such references cannot provide an opinion about an applicant’s level of risk, their observations can provide an insight into character. 

38. His employer at the time of the offence who had known the applicant for three years, was aware of the circumstances of the offence. The employer said the applicant’s behaviour since then indicated the applicant understood the  severity of his actions, and was remorseful. He says the applicant accepted responsibility and took  steps to address the underlying issues. At no point in their discussions did the applicant try to minimise the issue or seek to  avoid responsibility.

39. Another referee who was aware of the disqualifying offence who has known the applicant since he was a child, says the applicant was kind and protective towards her daughter who has a disability and she observed him to be respectful in his interactions with women and girls. 

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))

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

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

41. 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:

1. the disqualifying offence which occurred in 2019, while serious, was offending conduct at the lower end of the scale of seriousness for this type of offence. The victim was not a child;

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

3. Since the disqualifying offence committed by the applicant in 2019 there is no evidence of any conduct that could be considered adverse to the applicant;

1. the applicant is now 29 years of age and has shown genuine remorse for his actions in 2019;

2. We accept Mr Booth’s opinion that the applicant is at low risk of re-offending. There are a number of identifiable protective factors against the applicant reoffending. These include the applicant’s history of stable employment, supportive family and that he has taken positive steps to address the issues which led to the disqualifying offence by seeking psychological treatment;

3. The Children’s Guardian supports the application for an enabling order.

Would a reasonable person allow his or her child to have direct, unsupervised

contact with the applicant whilst he is engaged in child-related work? Is it in the

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

42. 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 :

1. 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

2. 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.

43. 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. In particular the following would be matters to which they would have regard:

1. it is nearly three years since the disqualifying offence was committed by the applicant;

2. he has had an unblemished record both before and since then;

3. the victim of the disqualifying offence was not a child;

4. the applicant’s stable employment history;

5. the report of a Clinical Psychologist that the applicant’s risk of reoffending is low; and

6. the Children’s Guardian supports an enabling order being made.

44. 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 the applicant whilst he is engaged in child-related work.

45. 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.

46. The Tribunal must consider the public interest in the context of section 4 of the Child Protection Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

47. In regard to the public interest, and noting that the paramount consideration of the Child Protection Act must take priority over private interest of the applicant, for the following reasons, we are satisfied that the making of an order setting aside the decision of the respondent and making a decision to grant the applicant a clearance is in the public interest

48. The applicant has committed one serious offence. He now wishes to obtain employment in his chosen field and it is for this purpose he seeks an enabling order so that he can obtain a working with children check. 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.

49. 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

50. Accordingly, we make the following orders:

1. The applicant is not to be treated as a disqualified person for the offence, in respect of s 56(1) of the Criminal Law Consolidation Act 1913 (South Australia) for which he was convicted on 4 May 2020.

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.

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

Registrar

Decision last updated: 17 November 2021