Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BFZ -v- Children's Guardian [2014] NSWCATAD 86 Hearing dates: 22 May 2014 Decision date: 22 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1. The Application is refused and dismissed. Catchwords: Working with Children- enabling application- applicant- poor credit and non disclosures. Legislation Cited: Child Protection (Working with Children) Act, 2012 Crimes Act 1900 Category: Principal judgment Parties: BFZ (Applicant) Children's Guardian (Respondent) Representation: Counsel JL Lucy (Respondent) BFZ (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410141 Publication restriction: S34 Civil and Administrative Tribunal Act 2013 reasons for decision INTRODUCTION 1This is an Application for an enabling order under s.28 of the Child Protection (Working with Children) Act, 2012 ("the Act"). The Applicant seeks to obtain an enabling order because he is disqualified from obtaining a Working With Children Check Clearance Certificate from the Children's Guardian because of a conviction for an offence which happened on 23 November 1997. It was an offence of indecent assault on a woman aged 26. The Applicant was 28 years of age at the time. 2The conviction was under s.61L of the Crimes Act 1900 and that is a disqualifying offence under Schedule 2 of the Act so that the Children's Guardian is prohibited from issuing a Working with Children Clearance Check to the Applicant unless he obtains an enabling order under s.28 of the Act from the Tribunal. The Children's guardian notified the Applicant of the decision not to grant the Clearance Check and the reason. 3The applicant has applied to the Tribunal for an enabling order. RELEVANT PROVISIONS OF THE ACT 4Section 4 provides that: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 5Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 6Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 7Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 8Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 9Section 12 provides that there are two classes of Working With Children Check Clearances which are: a) Volunteer - authorising workers to engage in unpaid child-related work; and b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work . 10Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 11Subsection 18(1) prohibits the Children's Guardian from granting a Working With Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "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". The Applicant was an adult at the time of the offence. 12In subparagraph (1)(e) of Schedule 2 to the Act, an offence under s.61L of the Crimes Act, 1900, is included in the specified offences that are disqualifying offences. 13Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offence in 1997. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant. 14Section 28 provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 15Section 30 provides: (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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. PRESUMPTION 16Section 7 contains a presumption that, unless the Applicant proves to the contrary, the Applicant poses a risk to the safety of children. ENABLING ORDER CANNOT BE SUBJECT TO CONDITIONS. 17It should be noted that ss.28(8) prohibits the making of a enabling order subject to conditions. DISCLOSURE 18Subsection 28(5) requires the Applicant to make full disclosure of any matters relevant to the Application. MATTERS UNDER SECTION 30 (a) The seriousness of the offence. On 23 November, 1997 in the early hours of the morning the Applicant was in charge of a service station. He was the only staff member on duty. A group of people attended the service station and some confectionary was purchased from him. One of the group, the victim, asked to use the ladies' toilet and was given the key. The key allowed her to enter the toilet area from an external doorway. She had been in the toilet area for less than 5 minutes. She was washing her hands at a basin. The Applicant told the Police that she had been in the toilet for more than 15 minutes, but CCTV film of the service station showed that it had been less than 5 minutes. The Applicant then went down a corridor beside the service station and entered the toilet area through a door from that corridor. He then sexually assaulted the woman by putting his hand up her skirt to her genital area. He had not met the woman prior to that night. The maximum penalty for the offence is 5 years imprisonment. The penalty imposed was that he was fined $1,000.00 and ordered to perform 150 hours of community service. The offence was a serious offence. (b) The period of time since the offence occurred and the conduct of the Applicant since it occurred. The offence occurred more than 6 years ago. The evidence does not disclose any criminal conduct since then and particularly no sexual assault or other assault on any person. (c) The age of the Applicant at the time the offence occurred. The Applicant was 28 years of age. (d) The age of the victim and any matters relating to the vulnerability of the victim. The victim was 26 years of age. She was vulnerable in that she was affected by alcohol, she was alone in the toilet area, she had no anticipation that a man would enter, she had no anticipation that anyone would enter from the door he used, and she had her back to him. (e) The difference in age between the victim and the Applicant and the relationship (if any) between the victim and the Applicant. The age difference was 2 years and there was no relationship between the victim and the Applicant. (f) Whether the Applicant knew or could reasonable have known that the victim was a child. The victim was not a child. (g) The Applicant's present age. The Applicant is now 45. (h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence proved. The Applicant has no other convictions. He has at times since the offence also worked as a nurse, having obtained and kept such employment by using a name he adopted in 2004 and falsely representing that he had no criminal conviction and had used no other name. (i) The likelihood of any repetition by the Applicant of the offences or conduct and the impact on children of any such repetition. The evidence does not enable the Tribunal, for reasons set out later, to say that the likelihood of any repetition by the Applicant of an assault or sexual assault does not involve a real risk to children. (j) Any information given by the Applicant in, or in relation to, the Application, AND (k) Any other matters that the Commission considers necessary. The obligation is on the Applicant to make full disclosure to the Tribunal of any matters relevant to the Application. The following matters as to his credit and disclosure are taken into account under paras (j) and (k). CREDIT OF THE APPLICANT AND DISCLOSURE 19There are various matters in the evidence which reflect adversely on the credit of the Applicant and/or demonstrate inadequate disclosure of relevant matters. In respect of the offence of which he was convicted, the Applicant was charged and subsequently entered a plea of not guilty. The matter went to trial. He was convicted. The finding was a finding of guilt beyond reasonable doubt. 20It also appears from the material before the Tribunal that the evidence of the victim was corroborated by 2 or 3 other witnesses who heard the Applicant apologise later to the victim for his conduct before the Police arrived. The Applicant's evidence that the victim had been in the toilet for 15 minutes was refuted by other evidence that she was there for less than 5 minutes. 21Although in the hearing he denied the offence the subject of the conviction, in the document headed "Grounds for Appeal - March 24, 2014" attached to his Application, the Applicant described the offence as an "aberration at my end". He also described some submissions as being There has been no appeal against his conviction and the Tribunal is not at liberty to re-investigate that issue. 22In contrast to the evidence before the Tribunal and the conviction and lack of any appeal, the Applicant in this hearing denied that he committed the offence. 23The evidence establishes that the Applicant in obtaining his employment and subsequently has made false statements to his employer in completing a Criminal Records Check Forms and other documents, and he has done that notwithstanding cautions on the forms as to his liability for prosecution for an offence if he gave false information or failed to provide information required by the form, but he has done that on at least two occasions. He has denied having used any other name than the name he assumed in 2004. He has denied he has any convictions. On one occasion he did it notwithstanding that the form particularly referred to disclosure of "indecency offences". It seems he has also made inadequate disclosures to his employer at other times. 24The Applicant testified that until he changed his name to BFZ in 2004 in Australia, his correct name had been MTA. But he said he was not using Mohamed as his first name because some people were using "MA" as his name, and others were using "TA" for his name and this was causing confusion. He denied that he called himself "TA" and said that he called himself "MA". But he signed the Marriage Certificate as "TA" and also the achievement certificates he received from the Kaplan College for his studies in advanced financial management were in the name of "TA". When it was put to him, he denied that he used that name after the conviction rather than the name "MA" in an effort to avoid him being identified as the person named in the conviction record. 25The Applicant has not really identified a name that he originally used, because the evidence indicated that at times he has used his middle name as his Christian name and he has used other combinations of his original 3 names. His evidence is that he was known by various combinations. 26In 2004 the Applicant changed his name to "AZ" but, instead of using the new name exclusively, he on some occasions reverted to a previous name. For example, when he took out Australian citizenship after 2004, he used a previous name. When his daughter was born or whenever he gave information for the birth certificate, he used his previous name and not the new name that he had changed to in 2004. 27In forms where the Applicant was required to disclose any previous names he had used, he did not do so. He also repeatedly failed to disclose the previous conviction where required by a form for his employer. 28The Tribunal is comfortably satisfied that he changed his name in 2004 so that the name he then used to obtain and keep employment would not be a name that would identify him as the person convicted in 1997. 29He falsely claimed that his failure to declare his former name(s) in forms provided by his employer was "an over-sight". The Tribunal does not accept that explanation. On the balance of probabilities it was a deliberate omission to avoid being connected with the conviction. 30He sought to explain his failure to disclose the conviction in forms requiring such disclosure by saying that it was "an over-sight", but in evidence he said that he thought he did not have to declare them because they were "spent convictions". 31He claimed that he had been studying full time for his advanced financial management degree for 4 years, when most of the study occurred in the first year and subsequent years could not be described as full time. 32The Applicant told the Nursing and Midwifery Council that his failure to disclose his criminal conviction when asked to in forms he signed for his employer was "an oversight". When it was put to him that it was deliberate, he repeatedly avoided the question. The Tribunal is comfortably satisfied that he deliberately failed to disclose the conviction. 33Other questions were put to him in cross-examination that he has not answered to any satisfactory standard. There is evidence of extensive overseas travel by him in 2005 and 2006. In those years he visited India on numerous occasions. He also travelled to San Francisco, Vancouver, Detroit, California and Delhi. In at least one month he visited India on 3 occasions. He did not provide any evidence to adequately explain how at a time when he was not in paid work, he and his wife were able to support themselves and their child and also fund his extensive travel from one income of less than $80,000.00 per annum. 34There are also issues about his daughter. She was born in India and brought to Australia. At the time when he said, and her birth certificate showed, that she was 3 months of age, he and his wife decided that they should incur the expense of day care each week day for the child. He was not in paid work at that time and his evidence is that the only income for the family was from his wife's income as a computer programmer, which he said was less than $80,000.00 per annum. 35When asked about their decision to send their daughter to day care 5 days a week, although he was available to mind the child, he said it was "more convenient" for her to go to day care. 36One issue is about the age of the child. According to her birth certificate she was only 3 months old. Staff at the day care centre found that she was able to stand, turned pages of a book, could walk with help and was as mature, in terms of physical activities and learning, as a child considerably older than 3 months. No adequate explanation was given in relation to these matters. 37His cross-examination was extremely damaging to his credit. He was repeatedly evasive. He at times volunteered wholly unresponsive material instead of answering questions. Despite advice from the Tribunal as to how he should deal with the questions in cross examination, he repeatedly commenced answering before the question was completed. He at times avoided the same question three times. He gave evidence that was just not credible in relation to his working in 2005 and on the one hand saying he was working, and then on the other hand quickly denying that he had any employment at that time. Similarly at a time when he said that he had completed his studies, he later testified that he was "studying full time". 38The Applicant presented as a wholly unreliable witness. The matters reflecting adversely on his credit and the matters of inadequate disclosure together persuade the Tribunal that it could not have confidence that he would have disclosed anything adverse or anything else that he was obliged to disclose under the Act unless it would support his Application. 39Looking at what he did disclose, there is some fairly limited evidence about his work proficiency working as a nurse and his own opinion that he deserves to be able to have his Application succeed, because of the time that has expired since the indecent assault conviction and the fact that he says he has not committed any other crimes. He also says that he has been with his wife for 20 years, is currently "the father and guardian" of his 8 year old daughter, and has maintained a "peaceful family life" with his wife and daughter. There is also a referee report making positive comments about him. 40The Tribunal could not rely upon his evidence that he has not committed other assaults on other people or children because of his poor credit and failure to make relevant disclosures. 41He has not provided any expert evidence by way of his psychologist or psychiatrist that may have been able to shed some light on what sort of risk might be involved. 42He has relied mainly on his own argument that because he has not been convicted of any offence in that period and because he is married with a child, then the Tribunal should be satisfied that he has discharged the onus as to the risk. 43The Tribunal cannot be satisfied on the evidence that the Applicant has discharged the onus. He has not established that he is not a real risk to children. ORDER 44The Order of the Tribunal therefore is: 1) The Application is refused and dismissed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2014