Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BRU v Children's Guardian [2015] NSWCATAD 119 Hearing dates: 15 May 2015 Decision date: 15 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant BRU is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW), in respect of an offence of carnal knowledge (pursuant to the now repealed section 71 Crimes Act 1900 (NSW)) for which the applicant was convicted on 29 September 1972. 2) The Tribunal orders the Children's Guardian to grant the applicant BRU a clearance pursuant to section 28 (6) of the Child Protection (Working with Children) Act 2012. Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- carnal knowledge disqualifying offence under (repealed) section 71 Crimes Act 1900 (NSW) conviction on 29 September 1972 – no evidence of force or violence – little difference in age – plea of guilty - weight to be given to only offence in the life of the applicant – section 128 certificate Evidence Act 1995 (NSW) granted in relation to evidence of events which occurred after refusal of clearance – risk assessment of expert stresses multiple protective factors – assessment of low or minimal risk posed by applicant- likelihood of repetition of disqualifying offence effectively nil - whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof- onus of proof discharged by applicant- effect of BKE v Office of the Children's Guardian [2015] NSWSC 523 - enabling order granted. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013(NSW) Crimes Act 1900(NSW) Evidence Act 1995(NSW) Family Law Act 1975 (Cth) Interpretation Act 1987(NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children's Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 59 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 Roberts v Balancio (1987) 8 NSWLR 436 Category: Principal judgment Parties: BRU (Applicant) Children's Guardian (Respondent) Representation: Counsel: R Lee (Respondent) Solicitors: Baker Love Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 1510123 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW)-Restriction on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.Section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW). Judgment Introduction 1. This matter is an application commenced on 26 February 2015 seeking administrative review of a decision by the Children's Guardian which was notified to the applicant on 12 February 2015. The Children's Guardian informed the applicant who is referred to as "BRU" in these proceedings, that due to his conviction on 29 September 1972 of an offence under the now repealed section 71 of the Crimes Act 1900, for carnal knowledge, he was not granted a Working with Children check clearance. The applicant was sentenced on that criminal matter to a suspended sentence of 12 months hard labour on condition that he is of good behaviour for 3 years. 2. On 6 March 2015 when this matter was listed for hearing of the stay application and directions, an order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. This order has continued. 3. The 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. 4. The respondent made submissions at the conclusion of the evidence that the Children's Guardian neither consented to nor opposed the granting of a stay if one was sought. After hearing all the evidence and submissions the Tribunal formed the view that a stay or the application for an enabling order should be granted. This was then communicated to the parties. The solicitor for the applicant and counsel for the respondent agreed at the conclusion of the hearing on 15 May 2015 that rather than grant a stay, the Tribunal may make final orders with reasons to follow. The parties agreed on a form of order which has been made by the Tribunal. This judgment constitutes those reasons for making the order. 5. During the course of evidence the Tribunal granted to the applicant a certificate under section 128 of the Evidence Act 1995 (NSW) for the evidence which he gave concerning events which occurred immediately prior to or at the time of commencement of these proceedings concerning the effect of the refusal of the working with children check clearance. That certificate will be issued separately to this judgment. The Evidence 1. The documentary evidence provided behalf of the applicant and the respondent and received by the Tribunal is as follows: 1. Affidavit of the applicant sworn on 4 March 2015: Exhibit A1; 2. Affidavit of the applicant filed 8 May 2015: Exhibit A2; 3. Report of Caroline Hare, psychologist, dated 7 May 2015 Filed 8 May 2015: Exhibit A3; 4. Relative Kinship Carer Assessment Report completed 5 February 2015, completed by the Department of Family and Community Services in relation to 3 children: Exhibit A4; 5. Confirmation of Placements of 11 November 2014 and Orders (Interim) of Children's Court of 4 December 2014 and 16 January 2015 relating to the applicant three grandchildren: Exhibit A5; 6. Section 31 responses in relation to the applicant filed with the Tribunal on 17 April 2015: Exhibit R1; 7. Section 31 response in relation to the applicant filed with the Tribunal on 8 May 2015: Exhibit R2. 1. There was no objection maintained by either party to the receipt of this evidence by the Tribunal. 2. The applicant gave oral evidence and was cross-examined. The expert retained by the applicant was also cross-examined. 3. The Tribunal then received and was assisted by oral submissions in addition to the written submissions already provided. 4. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons. Legislative provisions 1. The 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. 2. The 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. There, regrettably, is no relevant definition of "child abuse" contained in the Act. 3. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of "child and young person abuse" has been created in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence created by the section reads as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units" 1. 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 and the protective purpose or objects underlying 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." 1. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth). 2. The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(i) of Schedule 2 of the Act. Therefore, the applicant is treated as a disqualified person. By reason of section 18 (1)(a) of the Act the Children's Guardian must not grant a working with children check 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. The applicant is relevantly for the purposes of the Act now an adult and was an adult, aged 18 years, at the time of the offence. The offence with which the applicant was charged falls within the definition of child abuse because it was sexual abuse of a child then aged 15 years. The sexual abuse resulted in a pregnancy and a child who is now an adult. 3. The applicant seeks to work with children because in November 2014 because three of his grandchildren were removed from his daughter's care and placed under the care of the applicant and his wife. The children are aged 11, 4, and 6 months. It is expected and that as a result of Children's Court proceedings the applicant's wife will be granted parental responsibility or guardianship of the children. Since the applicant is a disqualified person he was required to move out of the matrimonial home. If the applicant is granted an enabling order he will be able to return to his home and help his wife care for his grandchildren. 4. An enabling order is therefore sought pursuant to section 28 of the Act which provides: "28 Orders relating to disqualified and ineligible persons (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 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." 1. A 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. There is no issue in this matter that the applicant wishes to engage in child-related work, either as an authorised carer or being in the home where an authorised carer is working with children, which requires that the applicant obtains a working with children check clearance. Standard of Proof and Onus of Proof 1. It can be seen from section 28 (7) of the Act that 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; BKE v Office of the Children's Guardian [2015] NSWSC 523. Required Considerations 1. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are: "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) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal." 1. The Children's Guardian received information pursuant to section 31 of the Act from the District Court and various government agencies. That information was tendered in evidence and referred to earlier in these reasons: Exhibits R1 and R2. 2. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Act: BKE v Office of the Children's Guardian, at [4], [25], [27]. 3. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act. The Issues 1. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children. 2. In determining whether the applicant does pose a risk to children it is accepted that the risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [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); BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26], [27]. Other matters 1. The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 2. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced on 29 September 1972 after pleading guilty on 17 April 1972: section 38 of the CAT Act. 3. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the CAT Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the CAT Act. 4. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. Consideration of the evidence 1. The 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 or any matters that caused a refusal of a clearance or imposition of an interim bar 1. The applicant set out in his affidavits filed in the proceedings the offence occurred when the victim was 15 years old and he was 18 years old. It is also stated that he assumed the victim was 16 years old. The applicant concedes that he did not take any steps to actually ascertain the victim's true age. As a result of the relationship which lasted 6 to 12 months there was born a child. That child the applicant says the child was supported financially by him until she reached the age of 16. The applicant attended her wedding, but does not have any current relationship with her. 2. The applicant and his wife have three adult daughters from their relationship. Those daughters have not reported any adverse incidents regarding the applicant. 3. The offence which has caused the applicant to be considered a disqualified person under the Act is a serious offence when taken in isolation. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The offence which renders the applicant a disqualified person occurred in the beginning of 1971 and continued until about June 1971. After the victim fell pregnant, she said in her police statement that she lost interest in everything and the last time she saw the applicant was in July 1971. 2. The offence occurred 43 or 44 years ago. 3. The applicant has not had any disciplinary or work-related conduct of an adverse nature. 4. The applicant does not have a criminal record apart from the offence which makes him a disqualified person. The age of the person at the time the offences or matters occurred 1. The applicant was born in 1952. The applicant was aged 18 at the time of the offence. 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 1. The victim was aged 15 at the time of the offence. The applicant visited the victim at her home. The victim resided with her mother and her siblings. One of those siblings apparently had a cognitive deficit or intellectual disability. The victim was required to leave school to look after her mother, and then found out she was pregnant. 2. The victim was vulnerable due to her circumstances, but apparently did not resist the consensual sexual relationship. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The difference in age was 3 years. The victim and the applicant met in an age appropriate way at a local dance. After a number of occasions where they met at the dance, the applicant took the victim home from the dance sometimes on her own and sometimes with other persons. 2. The applicant had a continuing relationship with the victim for a period of 6 to 12 months. As a result of that relationship a child was born. Whether the person knew, or could reasonably have known, that the victim was a child 1. The applicant knew and could reasonably have known that the victim was a child. As the applicant conceded, he did not make any enquiries as to her true age. The person's present age 1. The applicant is now 62 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The applicant has an unblemished criminal history apart from the offence which makes him a disqualified person. 2. The applicant has married twice since the offence. The applicant has been married to his present wife for 36 years. The applicant was a serving member of the Navy between 1971 and 1992. The applicant left the Navy and obtained alternative employment so he could provide support to his wife and 3 daughters during their adolescence. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. The matters which have been previously referred to in relation to the seriousness of the offence are relevant in relation to an assessment of the likelihood of any repetition by the applicant of the offence. Those matters have been considered again in relation to this subparagraph of section 30(1) of the Act. 2. The applicant relies upon his history since the offence as an indication of the improbability of a repetition of that offence. Additionally, the report by Ms Caroline Hare, psychologist conducted an assessment using psychological tools and came to the conclusion in Exhibit A3 at [47]: "I consider the risk to children safety that [the applicant] presents is minimal and currently commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child." 1. The applicant enjoyed a stable upbringing during which he was not exposed to any significant vulnerability factors. The applicant endorsed psychosexual development that followed a normal trajectory with the exception of the offence. The victim was the applicant's first notable intimate sexual partner. The applicant failed to clearly identify the age of his victim and assumed that she was of the age of consent. The applicant has been prosocial, maintained employment, developed a lasting intimate relationship, and has actively raised 3 children. 2. The applicant is the third eldest of ten children born to the union of his parents. He has six sisters and three brothers. The applicant is the eldest son. The applicant is temporarily residing with his mother and one of his sisters. 3. The applicant has had a stable school history. He ceased school at the age of sixteen. When he turned nineteen he was accepted into the Navy. The applicant became a Chief Petty Officer before he retired to take up civilian employment. The applicant is currently employed. The applicant's current employer provided a positive reference to the Tribunal. 4. Ms Hare considered that the overall risk posed by the applicant is a low risk of engaging in future sexual offending against children. It was not possible for the psychologist to generate a realistic scenario that would in her opinion genuinely heighten the risk of the applicant engaging in sexual offending towards a child in the future. 5. The Tribunal accepts the written report and the oral evidence provided by the psychologist as accurately reflecting the likelihood of any repetition of the offence. The likelihood of any repetition of an offence or behaviour which could constitute an offence is assessed by the Tribunal as minimal. Any information given by the applicant in, or in relation to, the application 1. The applicant has provided as much information as he possibly could. 2. The applicant provided information in which he acknowledged the seriousness of his offending behaviour. Any other matters that the Children's Guardian considers necessary 1. The Children's Guardian provided additional information to the Tribunal which largely confirmed the information provided by the applicant. Conclusions and Orders 1. In all the circumstances, and taking into account the considerations required under section 30 (1) of the Act, the applicant has discharged the onus on him to the requisite standard of proof that he does not pose a real and appreciable risk to the safety of children. 2. As previously referred to in these reasons, the jurisdiction of the Tribunal is protective and not punitive. 3. The applicant has acknowledged the seriousness of the offence to which he pleaded guilty. 4. The applicant is in a stable relationship and is currently in employment. These constitute dynamic risk factors which ameliorate the applicant's risk. 5. The applicant and his wife seek to look after their three grandchildren due to circumstances which prevent one of their daughters looking after her children. 6. The evidence establishes that there is no real and appreciable risk of harm to children posed by the applicant. There is sufficient evidence for the applicant to overcome the presumption that he poses a risk to the safety of children. 7. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. 8. Accordingly, the application for an enabling order pursuant to section 28 of the Act shall be granted. Orders 1. The orders of the Tribunal which were made on 15 May 2015, for the reasons which have now been set out as required in this judgment, and which were agreed between the parties as appropriate, are: 1. Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant BRU is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW), in respect of an offence of carnal knowledge (pursuant to the now repealed section 71 Crimes Act 1900 (NSW)) for which the applicant was convicted on 29 September 1972. 2. The Tribunal orders the Children's Guardian to grant the applicant BRU a clearance pursuant to section 28 (6) of the Child Protection (Working with Children) Act 2012. 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: 15 June 2015