FZ v Commission for Children and Young People

[2012] NSWADT 93

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

FZ v Commission for Children and Young People [2012] NSWADT 93

Hearing dates:

5 December 2011, 8 February 2012,13 March 2012

Decision date:

18 May 2012

Jurisdiction:

Community Services Division

Before:

L Goodchild, Judicial Member

Decision:

The documents, identified as documents (a) - (J) as they record representations made by KB and are not admitted into evidence.

The matter is relisted for further directions on 25 June 2012 at 9.30am for orders for the further progress of the matter.

Catchwords:

Preliminary issue - admissibility of evidence when witness is unavailable for cross-examination.

Legislation Cited:

Administrative Decisions Tribunal Act, 1997 Evidence Act 1995.
Commission for Children and Young People Act, 1998.

Cases Cited:

Commissioner for Children and Young People v FZ [2011] NSWCA 111.
FZ v Commission for Children and Young People [2010] NSWSC 1144.
FZ v Commission for Children and Young People [2009] NSWADT 267.
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA30; (1933) 50 CLR 228 at 256

Category:

Interlocutory applications

Parties:

FZ (Applicant)
Commission for Children and Young People (Respondent)

Representation:

Counsel
M Avenell (Applicant)
M Higgins (Respondent)
Logical Legal Solicitors (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

104026

Publication restriction:

S126 of the Administrative Decisions Tribunal Act applies

REasons for decision

History of the Application

1. On the 22nd April 2008, the applicant, who will be known by acronym 'FZ', filed an application pursuant to s33I Commission for Children and Young People Act, 1998 ("the Act") seeking an order that the Act is no longer to apply to him in so far as it declares him to be a prohibited person.

1. That application was heard before the Administrative Decisions Tribunal ("the Tribunal") on 19 and 20 May 2009 and a decision was delivered on 14 October 2009 [FZ v Commission for Children and Young People [2009] NSWADT 267].

1. By the decision of 14 October 2009, the Tribunal refused the application of FZ. The Tribunal determined that the applicant had not discharged the onus of establishing that he was "not a risk to the safety of children".

1. By summons filed on 10 December 2009, the applicant appealed from that decision. Harrison J. allowed the appeal and set aside the decision of the Tribunal dismissing the application for an order under s33I of the act and remitted the applicant's application back to this Tribunal differently constituted for decision according to law [FZ v Commission for Children and Young People [2010] NSWSC 1144].

1. The Commission for Children and Young People appealed his Honour Harrison's decision. The Court of Appeal heard this appeal. The Court of Appeal dismissed the appeal and the proceedings stand remitted back to this Tribunal to be reheard [Commissioner for Children and Young People v FZ [2011] NSWCA 111].

1. It is the hearing on this remittal to which these proceedings relate.

1. A preliminary issue to be determined with respect to the admissibility of representations relating to allegations made by the daughter ("KB") of the applicant's former partner ("VB"). These allegations concern serious criminal conduct, namely the indecent assault by the applicant of KB.

1. It is with respect to that issue that these reasons relate. The respondent Commission is pressing for the representations to be admitted. The applicant opposes such course.

1. On 29 September 1982, the applicant was convicted of one count of unlawful sexual intercourse contrary to s61D of the Crimes Act, 1900. This is referred to as the index offence.

1. The victim was an eleven-year-old male. The applicant is said to have threatened and intimidated the victim and was violent towards him.

1. S33E of the Act prevents an employer from employing the plaintiff in 'child related employment' because of his conviction for the index offence.

1. The plaintiff wishes to return to bus driving, including employment on school buses, which is defined by inclusion in s33 (1)(a)(xvi) of the Act as 'child related employment'.

Interlocutory question

1. The applicant objects to the admission of documents so far as they record representations made by KB. At the hearing on 13 March 2012, I requested the applicant to identify with specificity the documents or representation to which he objects. The allegations made by KB about the applicant have been made either by KB or by VB to child protection authorities, to a psychologist and to the police in the context of an application for an Apprehended Violence Order.

1. Ms. Avenall, Counsel for the applicant, provided a document entitled - "Note for FZ on documents to which he objects". By this document, Ms. Avenall refers to documents under various tabs contained in the agreed bundle. These documents include documents "A" - "J". For the sake of completeness, I will identify those documents below as follows: -

(a) Tab 12 - JIRT record of interview with KB on 21 March 2000.

(b) Tab 14 - JIRT recording book.

(c) Tab 17 - Clinical notes of Peta Dean, Psychologist dated 8.3.2000.

(d) Tab 20 - Report of Peta Dean, Psychologist dated 10.2.03

(e) Tab 21, pages 178 -181 - (Applicant objects to these pages with regard to any stated facts but admits the pages so far as relevance to the issue and service of the complainant's summons upon the applicant and the making of the AVO). These are documents from Campbelltown Local Court dated 11.04.00.

(f) Tab 23, pages 89-90. This is material produced by the Department of Community Services dated 22.07.08.

(g) Tab 24, except page 145. This is material produced by Peta Dean, Psychologist dated 15.10.08.

(h) Tab 26, page 162 - Event E10020382. This is material produced by NSW Police, External Agencies Team dated 28.8.08.

(i) Tab 27, except page 170. This is material produced by Liverpool Joint Investigative Response team dated 21.3.00.

1. When these proceedings were first heard before the Administrative Decisions Tribunal in May 2009, the Tribunal admitted the evidence during the hearing and told the parties that it would consider what weight, if any, would be attached to it.

1. Having regard to the Tribunal's ultimate treatment of the representations made by KB, his Honour Harrison J determined that the applicant was denied procedural fairness in the circumstances because the Tribunal determined to refuse the application on the basis that the allegations contained in the record of interview were true, which meant that the applicant was "confronted with the consequence of a finding against him of acts amounting to serious criminal conduct, ......without being given the opportunity to challenge his accuser" (FZv Commission for Children and Young People [2010] NSWSC 114451 per Harrison J at 51).

Further evidence on the admissibility question

1. Both parties filed and served evidence deposing to facts and matters concerning the unavailability of KB and the steps taken to locate her and seek her attendance for the purpose of these proceedings.

1. Mr Sutherland, solicitor for the applicant, filed and served an affidavit deposing to material with respect to the location of KB. Annexures to this affidavits included Google searches with respect to a person with the initial of KM, presumably the now married name of KB, an article from the Macarthur Advertiser, a white pages electronic search, a search on Facebook locating KM and a search of property on the internet at St. Helen's Park.

1. The respondent filed and served three affidavits for the purpose of this preliminary issue. One, from Ms R, employed with the respondent as a Risk Assessor deposed to the steps she took in attempting to locate KB for the purposes of the May 2009 Tribunal proceedings. She further deposed to the steps she took trying to secure KB's attendance at these current Tribunal proceedings.

1. She deposes to the location of two addresses prompting contact with NSW Department of Housing. Both these contacts led her nowhere. She deposes to searching Facebook websites and she was unsuccessful in obtaining any further details about KB. She deposes to make a decision to contact VB to obtain a contact number for KB. She deposes to a conversation with a person whom she understood to be VB who said words to the effect that, "Leave K alone as she is pregnant and due to give birth soon...Leave us alone". Ms R deposes to then having a telephone conversation with someone whom she believes was KB to the following effect, "No. Not interested. I've moved on. I've got kids" and "Leave me alone. I've got kids. I've got a husband". In response to a question by Ms R, "Are you fearful of him?" she responds, "Yes, of course I am. I'm scared. I don't want him near me and my kids. I don't want him to know anything about me. Leave me alone. I've moved on. Leave me alone", and the call ends.

1. Ms R. was cross-examined. She agreed that the Commission had not filed and served any evidence seeking to identify an address associated with the telephone number used to speak with KB. There was no evidence that the applicant had sought to identify any address of KB by issuing a summons for example to 'Utility Companies'.

1. Ms R confirmed in re-examination that based upon the conversation that she deposed to in her affidavit and based upon material contained in the psychologist's reports, that she believed that KB was fearful of the applicant. She also confirmed that VB had told her that KB wanted nothing to do with the proceedings.

1. By affidavit of CW, solicitor employed with the Crown Solicitor's Office, he deposed to contact with the NSW Electoral Commission to conduct an electoral role search on KB and KM. These searches did assist in the location of KB. CW was not required for cross-examination.

1. And finally, the respondent relied upon the affidavit of SS, solicitor employed with the Crown Solicitor's Office. This affidavit annexed, amongst other matters, a report of Rumore & Associates, a private investigative firm charged by the respondent with attempting to locate KB.

1. The author of the Rumore & Associates report attended to give evidence and be cross-examined. Counsel for the applicant provided material to the crown, which was also then forwarded to Rumore & Associates to assist in locating KB. It is unnecessary for the purposes of these reasons to detail the report, other than to note that their investigation did not reveal any evidence of the current location of KB.

1. The available evidence shows the lengths the respondent went to in attempting to secure KB be available for cross-examination in these proceedings. The available evidence suggests that KB is aware of the proceedings and does not wish to attend to give evidence in these proceedings.

Discussion

1. In considering whether or not to admit a hearsay statement without giving an opponent the opportunity to cross-examine the maker of that statement, I am required to consider the legislative framework in which the decision on admissibility is to be made.

1. The applicant has applied to this Tribunal for an order declaring that a prohibition under the Commission Act, which makes it an offence for him to apply for, undertake or remain in child related employment, does not apply to him. Section 33J (1) provides that the Tribunal is not to make an order on such application unless it is satisfied that the person, the subject of the application, "does not pose a risk to the safety of children". Section 33J (2) provides that it is to be presumed that the applicant does pose a risk to the safety of children, unless the applicant proves to the contrary.

1. In deciding whether or not to make an order under section 33I, I will be required to take into account a number of matters identified in that sub-sections as (a) - (i). Section 32 of the Commission Act requires me to give paramount consideration to the safety and welfare of children and in particular, the need to protect them from child abuse.

1. It has been said on a number of occasions that the legislation is to act protectively in regard to the children and not punitively with respect to an applicant.

1. Section 73 of the Administrative Decisions Tribunal Act, 1997 provides in part, as follows:-

" 73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions; and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings; and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable; and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings; and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases; and

(e) may require a document to be served outside the State; and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement); and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings; and

(h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

1. One of the effects of s73 is that this Tribunal is not bound by the rules of evidence. The applicant is, however, entitled to procedural fairness.

1. Whilst the rules of evidence do not apply they can and do provide an important guide: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA30; (1933) 50 CLR 228 at 256.

1. Section 63 of the Evidence Act 1995 excludes the operation of the hearsay rule in civil proceedings to first hand hearsay, if the maker is not available. A person is taken not to be available if "all reasonable steps have been taken to compel the person to give evidence" [Evidence Act 1995 Dictionary Cl 4]. A court being satisfied that a maker is unavailable does not necessarily make the representation admissible. A court may exercise discretion to exclude the representation by operation of another rule of evidence or in the exercise of judicial discretion [Uniform Evidence Law Odgers S SC Ninth edition 2010 page 249].

1. Ms Avenall, Counsel for the applicant, contended in her written submissions that the respondent had not proven that KB was unable or unavailable to attend for cross-examination. She further submitted that the respondent had not taken all reasonable steps to secure the attendance of KB at the hearing. The bases for the applicant's submissions included the purported existence of KB on a Facebook page, the failure of the respondent to issue a summons to utility companies, the fact that KB may have recently given birth to a child at a hospital and a related newspaper article and photograph.

1. The respondent contends that it has done everything in its power to locate KB. The respondent contends that KB is not available and the respondent contends that it was truly not possible to affect the availability of KB for the purposes of this hearing.

1. The respondent asked this Tribunal to infer from the affidavit of Ms. R that KB may in fact be actively avoiding being found.

1. In making my determination as to the significance to be given to the question of unavailability of KB, I have had regard to the respective comments of their Honours in the Court of Appeal proceedings in respect of this issue.

1. I am not satisfied that I need to apply the rules of evidence in my consideration of this issue. I am certainly guided by them.

1. It is my view that determining the issue of the unavailability of KB to give evidence is not the real issue for the determination of this preliminary issue.

1. The real issue for determination is whether to admit KB's representations in circumstances where she was not available for cross-examination on those representations. As his Honour Young said in the Court of Appeal at paragraph 70:

"The real question is whether to admit the evidence of a witness on a core matter when the Tribunal knows that it cannot be tested by cross-examination and may deny the applicant a fair trial. It may be that even when there is clear and compelling reason why that witness is unavailable, the Tribunal might still consider it appropriate not to receive the evidence".

1. I agree with his Honour Justice Young that the examination of the concept of witness unavailability is not something that necessarily needs to concern the Tribunal in this particular case. It must be remembered that even by the operation of s63 of the Evidence Act, which provides that first hand hearsay in oral or documentary form is not excluded by the hearsay rule in civil proceedings, where the person who made the representation is not available to give evidence, proving that the person is unavailable by satisfying clause 4 of part 2 of the dictionary, does not necessarily make the evidence admissible as it may still be excluded by the exercise of discretion.

1. I have had regard to the submissions by counsel for the respondent that, "to require a witness to attend and submit to cross-examination before a Tribunal and admits a document into evidence, is contrary to the practice of the Tribunal as it applied to this case and to all other cases of this nature".

1. The respondent contends as the statement of KB falls into what is being as classified as historical documents and that it is not the practice of the Tribunal to require the author of such a document to be available for cross-examination before the document is accepted into evidence.

1. It is certainly the case that by operation of the Act, specifically s73 (1) and (3), the Tribunal is able to determine its own procedure and to act with as little formality as the circumstances of the case permit. The determination of the admissibility of evidence is not solely a matter of procedure or formality. However, I do not agree that it is a matter of practice of this Tribunal that in all proceedings of this nature i.e. applications for exemptions, those historical statements going to core matters are automatically accepted into evidence without cross-examination.

1. Determinations such as these are made on a case-by-case basis and discretions as to admissibility are exercised based upon a proper analysis of the facts and circumstances of each individual case.

1. The Tribunal, as stated above, is not bound by the rules of evidence, but subject to the rules of natural justice. In Ramsay v Australian Postal Corporation, 2005 FCA 640:147 FCR 39, Spender J at 47[27]:

"while a right to cross-examine is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects to the case a party wishes to present, is...".

1. In the circumstances, I have decided to refuse the respondent's application to admit the documents representations made by KB as identified in (a) - (j). The reason for this is as follows:-

(a) The maker of the various statements, KB, is unavailable for cross-examination.

(b) Her allegations then contained in the various documents in their various forms, are unsworn and will remain untested. These allegations have not been pursued, either criminally or civilly against the applicant in any court.

(c) There are contained significant inconsistencies between the evidence of KB and VB.

(d) The applicant has denied the allegations.

(e) Upon cross-examination of KB, whilst it may not have been possible, even if she was available for cross-examination, to determine the truth of the allegations, although I am not suggesting that would not have been possible, the fact remains that no opportunity was given to the applicant to test KB's credit.

(f) These are allegations that go to a core matter and there does not exist any clear or compelling reasons why these representations alone should, without cross-examination, be admitted into evidence.

1. There can be little doubt that the allegations contained in the representations made by KB were adverse to the applicant and that fact is important and significant with respect to the position of the applicant. The proof of these allegations goes to what has been referred to as the 'core' issue in these proceedings, that is, whether or not the applicant is a risk of harm to children.

1. In circumstances where allegations are of such a serious nature and have such important consequences for the plaintiff; where there was apparent inconsistencies in the statements themselves; where there was a conflict in the evidence of the mother and daughter; where there was questions in the documents themselves with respect to the veracity of the mother, it is my determination that it is not possible for the plaintiff to have a fair and proper hearing by admitting the evidence and discounting its weight.

1. A fair and proper hearing can only be conducted by refusing the admission of the evidence.

ORDER

The documents, identified as documents (a) - (j) as far as they record representations made by KB, are not admitted into evidence.

The matter is relisted for further directions on 25 June 2012 at 9.30am for orders for the further progress of the matter.

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Decision last updated: 18 May 2012