Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BFH v Children's Guardian [2014] NSWCATAD 206 Hearing dates: 23 April 2014 Decision date: 23 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: L Goodchild, Judicial Member Decision: 1 Application dismissed. Catchwords: Working With Children clearance - Disqualifying Conviction - Enabling Order - presumed to be at risk to children - whether applicant has proven to the contrary Legislation Cited: Children Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Administrative Decision Tribunal Act 1997 Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSW 949; 56 NSWLR 476. Category: Principal judgment Parties: BRH (Applicant) Children's Guardian (Respondent) File Number(s): 1410084 Publication restriction: S64 of the NSW Civil and Administrative Decisions Tribunal Act 2013 applies. REASONS FOR DECISION 1The applicant, "BFH" is a "disqualified person" under s.18(1) of the Child Protection (Working with Children) Act 2012 ("the Act"). 2"BFH" seeks an enabling order pursuant to s.28 of the Act, declaring that he not be treated as a "disqualified person" so as to be granted a clearance to work engage in child related work. 3BFH is a disqualified person by reason of his convictions, in 1986, for the following offences: Indecent Assault (2 counts) and Sexual Intercourse Without Consent (See Clause 1(e) of Schedule 2 of the Act). 4The applicant bears the onus under the Act. Given the nature of the offences for which he was convicted the presumption is that he poses a risk to children. He therefore bears the onus of satisfying the Tribunal that he does not pose a risk to children. 5At the time of the offences the applicant was twenty-one years of age. The Court imposed sentences of imprisonment suspended on entering into a good behaviour bonds for the offences. Today he is unemployed and in receipt of a disability pension. He aspires to continue his study of theology - which he started this year - with the intention of becoming a Minister of Religion in a congregation. 6Section 6(2)(j) of the Act and Clause 13 of the Child Protection (Working With Children) Regulation 2013 operate to provide that work as a Minister for a religious organisation, where children form part of the congregation is "child related work". Accordingly, to pursue his intended vocation, he is required to obtain clearance to continue with that sort of work. 7BFH made an application to the Children's Guardian pursuant to s.13 of the Act. On 22 January 2014, the Children's Guardian did not grant a clearance and provided a notice of disqualification with respect to that application. 8On 20 February 2014, the applicant applied to this tribunal for the enabling order. 9At the hearing, the respondent Children's Guardian opposed the applicant's application. The Evidence 10In support of his application BFH relied on the following material: (a)His own statement dated 21 March 2014, to which was attached a copy of the following: (i)the enrolment form with Moorlands College where is currently a student of theology; (ii)his criminal history which notes the offences being the index offences in issue today; (iii)correspondence to this tribunal from his sister, the victim of the disqualifying offences; (iv)correspondence from the Inverell Baptist Youth Leader he deposes to knowing the applicant for the last two and a half years; (v)a statement from another person who has known him for over two years; and (vi)a statement from the Senior Minister of the Inverell Baptist Church who has known the applicant for two to three months. (b)His further statement dated 11 April 2014. 11In addition to the above written evidence, BFH gave oral evidence before this Tribunal and was cross-examined. 12The respondent tendered into evidence a bundle of documents which included the material provided by: (a)the New South Wales Department of Family and Community Services; (b)the Office of the Solicitor and Public Prosecutions with respect to the disqualifying offences; (c)New South Wales Department of Corrective Services in relation to the period during which the applicant was on probation as a result of his sentencing; (d)Department of Human Services, Victoria; and New South Wales Police. 13After considering the relevant legislative provisions in the Act, the material filed, the submissions of the parties, the oral evidence given by the applicant, I order that the application be dismissed and I provide the following reasons. THE WORKING WITH CHILDREN LEGISLATIVE SCHEME 14The Child Protection (Working with Children) Act 2012 is a scheme regulating those persons who can engage in and continue to engage in child related work. The Act came into force last year and repealed the previous legislative scheme under Part 7 of the Commission for Children and Young People Act 1998. 15The object of the Act, found at s.3 provides as follows: 3. Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 16Section 4 of the Act provides that the safety, welfare and wellbeing of children, and in particular protecting them from child abuse, is the paramount consideration in the operation of this Act. What that means is that the primary consideration is not the right of an applicant to engage in work, nor whether the applicant has expressed significant remorse for actions in the past. The paramount concern is the protection of children, particularly from child abuse and therefore, the task of the Tribunal is to determine whether or not the applicant poses a risk to the safety of children. The onus falls to the applicant to satisfy the Tribunal that he does not: s.28(7). 17Section 8 requires that a worker must not engage in child related work unless the worker holds a working with children check clearance or there is a current application by the worker to the Children's Guardian for a clearance. 18Section 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 the worker is subject to an "interim bar" or is not the holder of a working with children check that authorises the work. 19Section 13 provides for applications to be made to the Children's Guardian for a working with children check clearance. 20Section 18 of the Act 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 person" is a person convicted before, on or after the commencement of this section, of an offence specified in Schedule 2 to the Act, if the offence was committed as an adult. 21The offences for which the applicant was convicted satisfy that definition. Accordingly, the Children's Guardian was prohibited from issuing a working with children check clearance. 22Under s 28 of the Act the Tribunal may, on an application by a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of the Act. Where such an application is made, s.28 also provides, relevantly: 28 Orders relating to disqualified and ineligible persons ... (4) The Children's Guardian 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 Children's Guardian 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. 23The Tribunal's jurisdiction under s.28 is protective, not punitive in nature (see Commission for Children and Young Persons v FZ [2011] NSWCA per Young JA at 61). That is, the object of the legislation is not to impose additional punishment on a disqualified person but to eliminate possible risks to children. 24In determining or considering the application s.30 provides for the matters that this Tribunal must take into account in determining applications under this part. It provides as follows: 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 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 Children's Guardian considers necessary. (2) ... 25In this application the issue for determination is whether, having regard to the matters in s.30(1) and the relevant facts, the applicant has proven, that on the balance of probabilities, he does not pose a risk to children. 26Courts have considered what the word 'risk' means. Young JA in Commission for Children and Young Persons v V [2002] NSWC 949, 56 NSWLR 476 said (at 42): What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One however must link the word risk with the words that follow to the safety of children. 27The remarks of his Honour are apposite to the meaning of risk as that term appears in s.28. Consideration of the s.30(1) factors 28The evidence and Tribunal's findings in regard to each of the s.30(1) factors follows. (a) The seriousness of the offence with respect to which the person is a disqualified person 29There is little doubt that the offences that the applicant was convicted of are very serious. They are not isolated offences in the sense that there is merely one offence. There are a number of offences and it appears they were committed over a period of time - not over years, but certainly over months. They are offences that occurred within the applicant's family of origin. (b) The period of time since the offences or matters occurred and the conduct of the person since they occurred 30It was submitted on BFH's behalf, and the Tribunal accepts, that some twenty-eight years have passed since the offences occurred and that is certainly a significant period of time. 31The evidence of the applicant it is that he grew up in what can only be described as a dysfunctional home. His father was violent. He says his father sexually abused his sister. He says his father threatened him and he was scared of him for most of his life. He says he was sexually involved with his older sister for a period of years from ages seven till about eleven. 32Sadly his early life was marked by profound adversity and instability. He was gravely injured in a motorcycle accident when he was nineteen and he suffered a permanent disability. He suffered front lobe damage with memory loss. 33The applicant says that he has found it hard to find permanent employment. The evidence discloses that in the last ten years he has had a number of jobs. He has lived at over twenty-three different addresses in four different states of Australia. 34He is a married man. He has six children and is the stepfather to two children to his present wife. Seven of those children currently reside with he and his wife at his home in Inverell. 35Over the last ten years the records disclose some examples of poor parenting, instability in accommodation, and that concerns have been raised from a number of sources with respect to the care of children provided by both the applicant and his wife, those sources being school, police, relevant departments of Community Services and also from the children. 36It was apparent in the manner in which he gave his evidence when he was questioned about matters of significance in his past that he has not recovered from the adversity of his childhood. He certainly exhibits a vulnerability still today. 37Recent history shows that the applicant has struggled with providing for his children. By his own admission he has, in relatively recent times, found dealing with his children at times a struggle. His most recent past suggests a lack of judgment and a lack of insight into the effect of ongoing change and ongoing instability on his family and especially on his children. 38The impression that I have and what I determine that the evidence discloses is that the applicant displayed an insufficient understanding of the necessity for regulation of his own behaviour for the benefit of his children and his family. Clearly his own evidence and the evidence of the service providers disclose the impact that the previous years of instability have had on him and his children. (c) The age of the applicant at the time of the disqualifying offence 39At the time of the offences he was twenty years of age. (d) The age of the victim of the disqualifying offence and any matters relating to the vulnerability of the victim 40At the time of the offences the victim, BFH's sister, was aged between twelve and thirteen years. (e) The difference in aged between the victim and the applicant and the relationship (if any) between them 41The victim - a child at the time of the offences - was 7 years younger than the applicant. The applicant was an adult at the time of the offences. 42The victim was the younger sister of the applicant. She no doubt saw him as an older brother, someone whom she could trust and the offences exhibit a significant breach of trust. (f) whether the applicant knew, or could reasonably known that the victim was a child 43Given the family relationship between the victim and the applicant, the Tribunal is satisfied that the applicant knew his sister was a child at the time of the offences. (g) the applicant's present age 44The applicant is presently forty-nine years of age. (h) the seriousness of the applicant's total criminal record 45There are no matters of any consequence on the applicant's criminal record other than the disqualifying offences. There is a driving matter in 2005 but that is of no relevance in the Tribunal's determination. There is no evidence of any disciplinary proceedings recorded with respect to this applicant. (i) the likelihood of any repetition by the applicant of the disqualifying offence and the impact on children of any such repetition 46The applicant gave evidence that he was unable to recall the offences. He stated that he pleaded guilty to the offences because he was advised to and because he did not think his sister would make such things up. 47During the course of the hearing, he provided no explanation for his offending behaviour - he does not remember the offending. 48In relation to his inability to remember the offending behaviour, his evidence was that he had sustained frontal lobe damage and lost his memory as a result. That does not in my view stop him from giving consideration to what the records say about the offending and at least attempting to provide some sort of explanation or some sort of contextual understanding as to how or why these offences occurred. 49BFH's legal representative quite correctly pointed out that the applicant expressed considerable remorse for his behaviour. I have no doubt about that and I find that that is the case. The evidence presented suggests that he expressed remorse at the time when the offences occurred and his remorse was apparent as he gave evidence throughout the proceedings. 50In relation to the convictions, the applicant was on probation for six years. He attended a psychiatrist and/or psychologist throughout the period. The evidence was that one of the psychiatrists seen by BFH recommended further treatment. There is no evidence that BFH has had any further treatment or therapy and indeed, BFH's evidence was that he was not aware that further treatment had been recommended. 51This apparent great period of instability in his professional life and home life are matters which I believe are relevant and can be taken into account in determining likelihood of repetition. He exhibited a lack of insight as to the reasons for his behaviour. His inability to explain his behaviour is one of the reasons why I cannot be satisfied that there is no risk that his behaviour would not be repeated. 52During the course of the hearing, the respondent presented evidence that allegations had been made to the Department of Human Service in Victoria that the applicant engaged in sexual impropriety with a young child. As a result of those allegations, a number of clinical assessments were undertaken. Those allegations were not the subject of a positive finding that the alleged behaviour had occurred. The Children's Court in Victoria ultimately made orders for 12 months supervision placing the children in the care of the applicant and his wife with conditions imposed on them that they participate in and accept services. 53The applicant did not divulge the above matters in the written evidence provided by him in support of his application, nor in his oral evidence other than under cross-examination by counsel for the respondent. 54The respondent submitted that I should consider that the applicant has been less than frank in the evidence he gave during the hearing. I am certainly concerned that when the applicant was preparing for this matter and providing his statements with respect to this matter, he provided no evidence about those allegations. 55I am not able to and will not attempt to determine whether the allegations are proven. But the simple fact of those allegations having been made, placed in the context of the applicant's history and the nature of an application such as this means that it is a matter that I must take into account. 56Further, given the nature of this application, the applicant ought to have referred to the allegations in his primary evidence and his failure to do so is alarming. He was aware that there had been allegations in the past with respect to his behaviour towards children and that remedial action was taken in relation to the allegations. His failure to disclose those matter is in my view a significant omission. 57The respondent also presented evidence of allegations made against the applicant by various government departments, police and school in relation to neglect of his children. The applicant did not refer to those allegations in his primary evidence. Whilst those allegations are concerning, I am less concerned about the failure to disclose those matters than I am about the allegations of sexual impropriety. In my view, his failure to disclose the allegations in relation to neglect is not as serious an omission as the failure to disclose the allegations of sexual impropriety in an application such as this. (j) any further information given by the applicant 58The applicant says that over the past three to five years, he has begun to turn his life around. He attributes this turn around to his attendance at church on a more regular basis. He has given evidence that he finds great solace in his church attendance, that he finds great support at church and that these factors have been significant in his desire to become a Minister and preach the gospel. 59Whilst unemployed at the time of the hearing, the applicant has had work in the past and it is apparent on his evidence that he will obtain work in the future. There is nothing before the Tribunal to suggest that the applicant seeks to work as a Minster out of financial necessity or to obtain financial stability. I understand that the applicant's family income after rent has been paid is in excess of $1,700 per fortnight. 60It was submitted by the applicant's legal representative that there are a number of advantages to the applicant in obtaining this sort of work, namely that it is work that will not exacerbate his health issues and there is the possible provision of accommodation and financial stability. 61The best measure indeed for determining how a person is likely to perform in the future is to have regard to their performance in the past. In the most recent past the applicant and his family have experienced profound accommodation insecurity. The evidence discloses that that insecurity has had a significant impact upon his children. 62I am not satisfied that if he were to be granted this enabling order and continue his study, that such a course would necessarily lead to any greater stability - either in his finances or in his accommodation - than he presently experiences. 63I enquired of both the respondent and the applicant as to the relevance - if any - of the history of interaction between the applicant, his family and the Department of Family and Community Services. The applicant's legal representative indicated, in summary, the applicant had had difficulties in the past with the Department and with looking after his children but those issues had settled down recently and the issue was therefore of limited relevance. (k) any other matters that the respondent considers necessary 64In response to my enquiry as to the relevance of Departmental interaction, the respondent submitted that the history of interaction with the Department disclosed an ongoing struggle by the applicant in dealing with his children. 65On the applicant's own admission during cross-examination, there have been issues of violence by him towards his children and to some extent neglect. As I have indicated previously they are matters to which I have had regard in determining this application. Conclusion and Orders 66Having regard to the matters that I have referred to and having regard to the paramount consideration of the Act, I am not satisfied that the applicant has discharged his onus as required under s.28(7) of the Act. I am not satisfied that the applicant has established on the balance of probabilities that he does not pose a risk of safety to the children. In light of that, the application is 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: 25 November 2014