Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BJJ v Children's Guardian [2014] NSWCATAD 229 Hearing dates: 19 November 2014 Decision date: 19 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Andrews, Senior Member Decision: The application for an enabling order is granted. Catchwords: ADMINISTRATIVE LAW - Working with Children Clearance - s. 28 Enabling order application - disqualifying offence s. 71 Crimes Act 1900 NSW - whether the applicant has discharged his onus that he poses no risk to the safety of children. Legislation Cited: Child Protection (Working with Children) Act 2012 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Interpretation Act 1987 Cases Cited: BFX v Children's Guardian [2014] NSWCATD 115 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Category: Principal judgment Parties: BJJ (Applicant) Children's Guardian (Respondent) Representation: Counsel Mr Andelman (Applicant) Mr Lee (Respondent) Legal Aid (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1410304 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - restriction on publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons. reasons for decision Introduction 1The applicant, known by the initials 'BJJ' for the purposes of these proceedings, filed his application for an enabling order in the Tribunal on 10 June 2014. 2The applicant also requested that the decision of the Office of the Children's Guardian to not grant clearance for the applicant to work in any paid or voluntary child-related employment be stayed on an interim basis pending the outcome of the appeal for an enabling order. The stay application was heard on 15 August 2014 and was dismissed. 3The application for an enabling order was heard on 19 November 2014. 4An order was made at the commencement of the hearing under section 64 of the Civil and Administrative Tribunal Act 2013 restricting the publication of information that will identify the applicant, any victims, witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons. 5The applicant seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work and in this particular instance allow his granddaughter to attend his home and be in his care. 6The respondent neither opposes nor supports the enabling order sought by the applicant BJJ. 7For the reasons set out below, I am satisfied the applicant has discharged the onus placed upon him, under subsection 28 (7) of the Act, in order for the Tribunal to make the order sought. The evidence 8The documentary evidence provided on behalf of the applicant is as follows: (a)Applicant's sworn statement dated 13 October 2014 (Exhibit A1); (b)Social Work Report by Mary Jelen, Legal Aid NSW Client Assessment & Referral Unit dated 18 August 2014 (Exhibit A2); (c)Psychologist Risk Assessment report dated 8 September 2014 (Exhibit A3); (d)Written submissions of applicant's barrister (Exhibit A2); 9The documentary evidence provided on behalf of the respondent is as follows: (a) Section 31 Response from NSW Police, CrimTrac (Exhibit R1); (b)Court documents relating to the index offence (Exhibit R2) comprising Police Facts Sheet and two Victim's Statements respectively dated 10 May & 18 June 1966; (c)Section 31 Response from Sex Crimes Squad, NSW Police dated 25 July 2014 (Exhibit R3); (d) Section 31 Response from Department of Family & Community Services (FACS) dated 22 August 2014 (Exhibit R4); (e)Section 31 Response from the applicant's previous employer dated 23 March 2011 (Exhibit R5); (f)Section 31 Response from a disability organisation the applicant does volunteer work with dated 26 August 2014 (Exhibit R6); 10There was no objection to receipt of the applicant's material by the Tribunal or that of the respondent's except in relation to Exhibit R2. Counsel for the applicant argued that the victims' statements were highly prejudicial and that they were not here to be cross-examined. Furthermore, one of the offences was dismissed. 11Counsel for the Children's Guardian argued that the Tribunal should have all relevant information in front of it to consider the totality of circumstances which the Tribunal concurs. 12The applicant gave oral evidence and was cross-examined. 13The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided. Relevant Legislative Provisions 14The Act came into force on 15 June 2013. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act. 15The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act. Although the Act refers to "protecting children from child abuse", there is no definition of "child abuse" contained in the Act. 16However, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987." 17The applicant was charged with an offence pursuant to section 71 of the Crimes Act 1900, to which he pleaded guilty and on 15 March 1967 he was convicted for two counts of carnal knowledge, fined and placed on a 12 month good behaviour bond. (a)The offence with which the applicant was charged and to which he pleaded guilty is an offence referred to in clause l (i) (n) of schedule 2, which is identified as a disqualifying offence. By reason of section 18 (1) (a) of the Act the Children's Guardian must not grant a working with children clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. BACKGROUND 18In 2013, the Department of Family and Community Services placed the applicant's grand-daughter, aged eight, in the care of the applicant and his wife. The child's mother is currently incarcerated on drug-related charges. 19When the child was placed with the applicant and his wife, it was a condition of the placement that they both obtain a Working with Children Clearance. 20On 5 March 2014, the applicant received a Notice of Disqualification for a Working with Children clearance from the Office of the Children's Guardian. 21As a result of the Notice of Disqualification, the child was removed from the applicant and his wife and placed with the applicant's other daughter who has children of her own. 22The child is allowed to spend time with the applicant without restriction but unlike the other grand-children is prohibited from staying overnight or living with the applicant. 23The applicant wants the child to be able to stay overnight and or live on a respite basis with him and his wife. 24A person is not permitted to engage in "child-related work" unless they hold a working with children check clearance: see section 8 of the Act. 25The definition of what constitutes "child-related work" is provided for in Section 6 of the Act. Specifically, Section 6 (1) states a worker is engaged in "child-related work" if: (a)the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with children, or (b)the worker is engaged in a child-related role referred to in subsection (3). 26The effect of section 6 of the Act is that a person who is an authorised carer of a child is engaged in "child-related work" for the purposes of the Act. 27By virtue of his past criminal conviction the applicant is deemed a "disqualified person" under the Act and was refused a working with children clearance by the Children's Guardian. 28An enabling order is therefore sought pursuant to section 28 of the Act to allow the applicant to undertake "child-related work" as described above. Onus of proof 29Under section 28 (7) of the Act "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children." The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995. 30In order to determine whether the presumption has been rebutted the Tribunal will consider the totality of evidence before it. 31The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] at [30], BYR v Children's Guardian [2013] NSWADT 310, at [38], Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). 32Under section 28 (5) of the Act "An applicant must fully disclose to the Tribunal any matters relevant to the application." Consideration of the Evidence 33The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act. That evidence is now set out under each of the subheadings. The seriousness of the offences with respect to which the person is a disqualified person 34The applicant was charged on three counts of carnal knowledge but was acquitted on one of those counts. He subsequently pleaded guilty to the remaining two charges and was convicted on 15 March 1967 for the offence of Carnal Knowledge. (See CrimTrac check Results Report in Exhibit R1). 35As a result of that conviction he was fined $50 and placed on a good behaviour bond for a period of 12 months. 36As pointed out by the respondent, the offence of carnally knowing a child is a serious offence. However, having regard to the circumstances relating to the applicant's conviction, and while questions were raised as to the precise nature of the relationship between the applicant and the victim as to whether or not they were in fact dating or that this was a "one-night stand" his offending conduct was consensual. The period of time since those offences or matters occurred and the conduct of the person since they occurred 37The offences occurred sometime in 1966. The applicant was convicted on 15 March 1967, forty-seven years ago. 38The applicant told the Tribunal that going to court and pleading guilty to charges of carnal knowledge was "the worst day" of his life. It had such an impact on him such that, apart from one later mistake (in regard to his traffic offence), that he had learnt his lesson and had soon after the offences disassociated from the other young co-offenders. 39It is now 48 years since the applicant's offence of carnal knowledge and but for the negligent driving conviction in 1974 there has been no further record of any offence by the applicant. Certainly there has been no offending of a similar nature to the carnal knowledge conviction. 40Nor is there any evidence of the applicant having been the subject of a complaint or allegations of inappropriate behaviour during these intervening years. 41The evidence is that the applicant has been an active member of the community, employed or all of his working life and since retirement has worked in a volunteer capacity for a young adult disabled organisation. The age of the person at the time the offences or matters occurred 42The applicant was born on 15 March 1946. At the time of the offence in November 1965, the applicant was 19 years old. 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 43At the time of the offence the victims were either 14 or 15 years of age. 44The applicant says that one of the victims told him she was about 16 or 17 years of age and that he had sexual intercourse with her. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 45The victim was about four or five years younger than the applicant at the time of the offence. 46It was put to the applicant that he had a relationship with the victim but he repeatedly denied this stating they had only ever gone out on one or two occasions what might be described as 'dating'. 47The law in relation to the vulnerability of child victims is abundantly clear in legislation and in case law. By virtue of their age, children and young people under 18 are automatically considered vulnerable and in need of protection. 48The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making decisions under the Act: see section 4 of the Act. 49Apart from the victim's age there was no evidence placed before the Tribunal as to any issues relating to her vulnerability. Whether the person knew, or could reasonably have known, that the victim was a child 50The applicant says that his recollection of the events in 1966 is that the victim told him prior to engaging in consensual intercourse that she was sixteen or seventeen. The person's present age 51The applicant is now 68 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 52On evidence presented to the Tribunal, the applicant's criminal history consists of several offences that include horse stealing and injury to a horse as a child in 1962; various offences of stealing a motor vehicle and larceny in 1963, carnal knowledge in 1966 and negligent driving in 1974. 53The applicant's conduct since the offences occurred, are already addressed at paragraphs 40-42. In short the evidence shows there has been no further offending nor complaints or allegations of inappropriate behaviour toward children or young people. 54While this is a noteworthy achievement, nonetheless it is only one of a number of considerations the Tribunal has to take into account. In considering the totality of circumstances as outlined in section 30 of the Act the Tribunal is guided by the paramount principle of ensuring the safety, welfare and well-being of children as outlined in section 4 of the Act. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 55As I have already mentioned apart from the 1974 conviction there is no further criminal record of the applicant since that date and on this basis in my view the likelihood of any repetition by the applicant of offences of this nature is very unlikely. 56In this regard there are two reports the Tribunal relies on to support this view. They are a report by social worker Mary Jellen dated 18 August 2014 (Exhibit A2) and the report of Dr Seidler, a consulting psychologist, who has prepared a report for the purposes of these proceedings dated 8 September 2014 (Exhibit A3). 57In her report Ms Jellen said that in her opinion the applicant does not pose a risk of harm to children. 58The second report that of Dr Seidler, on the other hand, does address the issue of risk of harm assessment. In her report she also concludes the applicant does not pose a risk to children. 59Counsel for the respondent submitted that the applicant did not fully disclose matters in regard to his criminal history and offences to either the social worker or psychologist in order to obtain a favourable report. From this he argues there are two consequences. 60The first is in regard to what weight can be placed on the psychologist's assessment given that certain information was not made available to her at the time of assessment. 61The second matter relates to the applicant's overall candour and whether or not he has been fully frank to the Tribunal as required to do so under section 28. In this regard the Tribunal finds that the applicant has been honest and fully frank with the Tribunal to the best of his ability. The simple fact is that the offence was committed some 48 years ago and accepts that his long term memory is affected. 62The Tribunal also accepts the psychologist's assessment that the applicant is not deceptive and outlined the difficulties and confusion experienced by him in trying to recall events exactly as they happened. 63In cross examination a number of assumptions were put to Dr Seidler by the Respondent's Counsel and on that basis asked her to consider whether or not her assessment would change the outcome of her findings? Dr Seidler indicated that this information would affect the numeric value in regard to the Static 99 test and Dynamic Risk Factors that would increase the applicant's grading from low to low-moderate risk but that overall her assessment would remain the same, essentially that she does not consider the applicant poses a risk to children. Any information given by the applicant in, or in relation to, the application 64The information provided by the applicant also indicates that he is in a long established stable relationship. He is the father of four adult children and grandfather to twelve. He has indicated that he is seeking this order to be able to provide care of one of his grandchildren for whom there is a real threat of her being removed from the family. Any other matters that the Children's Guardian considers necessary 65There were no further matters raised by the Children's Guardian. Conclusions and orders 66Accordingly, having regard to all the material before the tribunal I am satisfied that the applicant has discharged his onus that he does not pose a risk to the safety of children and it is appropriate to make the orders sought. The Tribunal orders: (1)Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of carnal knowledge for which he was convicted on 15 March 1967. (2)Pursuant to sub 28 (6) of the Child Protection (Working with Children) Act 2012 the Children's Guardian is to grant the applicant with a Working with Children clearance. ********** 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: 31 December 2014