Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CBO v Children's Guardian [2016] NSWCATAD 53 Hearing dates: 18 December 2015, 12 February 2016 Date of orders: 23 March 2016 Decision date: 23 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member R Royer, General Member Decision: The application for an enabling order is granted. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – 2006 act of indecency without consent - by reason of offence presumed to be a risk to children – whether applicant has discharged his onus to establish the contrary. Legislation Cited: Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (ACT) Crimes Act 1900 (NSW) Cases Cited: Commission for Children and Young People v V [2002] NSW SC 949 BKE v Office of Children's Guardian [2015] NSWSC 523 Category: Principal judgment Parties: CBO (Applicant) Office of the Children's Guardian (Respondent) Representation: Counsel: I Fraser (Respondent) Solicitors: CBO (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1510363 Publication restriction: Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. REASONS FOR DECISION Introduction 1. The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 ('the Act') and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act. The Children's Guardian, who is the respondent in this matter, opposes the application for an enabling order. 2. The offence which brings the applicant within subsection 18(1) of the Act is that of an act of indecency without consent, as set out in s60(1) of the Crimes Act 1900(ACT), which is a disqualifying offence falling within Schedule 2 of the Act. If committed in NSW, it would comprise an offence contrary to s61N of the Crimes Act 1900 (NSW), which is a specified disqualifying offence in according with cl 1(e) of Schedule 2 to the Child Protection (Working with Children) Act 2012. 3. The applicant pleaded guilty to the offence, which will be referred to as 'the index offence'. The matter was found proven without conviction and the applicant was released on entering a six-month good behaviour bond. 4. An application for an enabling order is required to be made within 28 days of the applicant being entitled to apply for such an order: rule 23(3) of the Civil and Administrative Tribunal Rules 2014. The applicant became entitled to apply for an enabling order on being declared a disqualified person on 15 April 2015. Any application was therefore required to be lodged by 15 May 2015. Whilst the application was not filed until 26 June 2015, the Tribunal subsequently extended the time for the applicant to file his application until 26 June 2015. Accordingly, the Tribunal has jurisdiction to hear and determine the application. 5. The issue to be determined by the Tribunal is whether the applicant poses a risk to the safety of children. In the case of an application for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk. 6. In considering this question, guidance is provided by the Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSW SC 949 at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 at [26]: What one is looking for is whether, in all of 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 children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children.' 1. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the names of the applicant and his family as well as the name of the victim of the disqualifying offence are not to be published without the leave of the Tribunal. To give effect to this order, the pseudonym CBO has been used for the applicant's name. EVIDENCE CBO Evidence 1. The applicant, who was self-represented in these proceedings, gave oral evidence before the Tribunal. He told the Tribunal that he was seeking an enabling order because he has recently moved to NSW to live with his partner and was hoping to continue to work as a relief teacher. He also wishes to engage in voluntary work and, at the time, had considered working as a bus driver in NSW. He has previously worked in the ACT as a high school teacher, a bus driver and a Commonwealth public servant. 2. There is no dispute that he is registered to work with vulnerable people in the ACT. 3. He told the Tribunal that he is not taking any medication and is not regularly seeing either a psychologist or a psychiatrist. 4. He agreed with the police facts sheet in relation to the details of the index offence, namely that whilst choosing a birthday card for his daughter in a newsagency in 2006, he had commenced masturbating and continued to expose himself when purchasing the card and leaving the shop. At the time of the offence, he had recently separated from his wife, which had resulted in an estrangement from his daughter, who blamed him for the breakdown of the marriage. 5. He was at a loss to explain his actions in the newsagency but denied having a sexual motive and denied seeking to minimise his actions. He was clearly distressed in the course of giving his evidence and told the Tribunal that he found it difficult to clearly remember the details of the offence itself. Around the time of the offence, he had been seeking medical help for depression and had been taking anti-depressants. 6. More recently, the applicant has sought treatment for depression for workplace issues, and following the breakdown of his second marriage. This is confirmed in reports prepared by two psychiatrists and an occupational physician. The applicant agreed that in the course of his recent treatment, he had not disclosed the index offence to his treating practitioners because he found the offence highly embarrassing and has tried to put it in the past. He denied intentionally failing to advise the respondent of his more recent treatment for depression explaining that he was under the impression that the respondent's focus was not on the applicant's workplace issues but rather on the index offence. He agreed that, with hindsight, he should have disclosed the recent treatment he received in response to his workplace issues. He noted that, in his view, this would have been to his advantage in these proceedings as it was evidence of his mental strength that he hadn't committed a further offence despite his recent workplace pressures. 7. The applicant was questioned as to why he had failed to disclose the index offence both when registering to work with vulnerable people in the ACT and in his application to become a bus driver. He told the Tribunal that because no conviction had been recorded for the index offence, he believed that he was not required to disclose it. He told the Tribunal that he believed that it was exactly for this purpose that the magistrate had ordered that no conviction be recorded, so that it would not affect his ability to work or to remain as a public servant. He agreed that he should have made further inquiries to clarify the disclosure requirements. 8. In a file note for the applicant's interstate security clearance questionnaire dated 9 February 2009, it was noted that 'The Police Check indicated that there were 'No Disclosable Court Outcomes' recorded against [CBO].' 9. The applicant agreed that in his application for a bus driver, he failed to disclose that he has been treated for depression and that he had, on one occasion, had a blackout. He told the Tribunal that when he had applied to be a bus driver, he was no longer suffering from depression and had fully recovered. He conceded that he had feared that he would not be selected to be a bus driver as it was highly competitive. In the end, he had decided not to pursue the application. 10. The applicant told the Tribunal that as a result of the treatment he has received for depression, he has developed skills to manage stress and anxiety. He has learnt to seek medical help as required and notes, despite having had periods of great stress since 2006, he has never reoffended. 11. He told the Tribunal that he believes that he poses no threat to any member of the public. He drew the Tribunal's attention to the fact that he is registered to work with vulnerable persons, including children, in the ACT. He noted that when considering his registration, the index offence was taken into account but did not result in his registration being refused. He told the Tribunal that he has worked with children both before and after the offence and has received positive references in relation to his teaching and believes that he is a good teacher. ACT Risk Assessment Recommendation Report 1. In July 2014, an assessment was completed for the applicant to determine his suitability to hold a Working with Vulnerable People registration (ACT). Having considered the applicant's offending behaviour, the assessor reached the following conclusion: Noting that the applicant's actions were not sexually motivated, while acknowledging that the applicant has had no further offences in the following 8 years and that any re-occurrence of an episode is unlikely to be antisocial, the office can be reasonably confident that such behaviour is not an ongoing concern. Based on the information available, it is also reasonable to conclude that the applicant does not present a greater risk of committing a sexual offence than the general population and consequently a general registration is recommended. Psychological report of Dr Eryl Evans 1. In a report prepared for the applicant on 10 October 2006, Dr Evans offers the following opinion in relation to the offending behaviour: At the time of committing the offence [CBO] suffered an episode of dissociation creating a state of derealisation and depersonalization brought upon by continual and overwhelming stress and anxiety. The episode was triggered by the associations relating to the act of purchasing a birthday card for his daughter. Although at the time [CBO] knew that his actions were improper, it is considered that his state of mind was such that he did not have the capacity to choose not to engage in the activity…Many adults experience a single brief episode of depersonalisation brought on by severe stress without there being any reoccurrences…[I]n CBO's case, it is more than likely that the awareness of how he behaved will interfere with the dynamics that led him slipping into a dissociative state…This awareness in itself could prevent the development of an episode...It is doubtful that [CBO] will repeat the behaviour for which he has been charged…The nature of [his] offence also suggests that he is unlikely to re-offend. Evidence of Mr Bradley Jones, forensic psychologist 1. Mr Jones prepared a report for the applicant in which he confirmed that the applicant was not suffering from any psychiatric or psychological condition, nor any paraphilic disorder. 2. In his report, Mr Jones offers the following opinion in relation to the applicant's offending behaviour: The assessment of [CBO] indicates his offending of 2006 occurred in the context of significant emotional upset and distress. That distress was associated with the breakdown of his marriage, the estrangement of his daughter…and emotional instability associated with his intimate relationship at that time. Assessment of [CBO] indicated no sexual deviancy, nor any sexual based motivation for the offending…[CBO] does not display any traits of anti-sociality, psychopathy, atypical sexual interests, or paedophilic sexual interests. Based on the comprehensive assessment, it is my opinion that [CBO] currently poses a low risk for committing any offence, be it sexually or otherwise. 1. In reaching this opinion, Mr Jones took a history from the applicant and administered a series of tests, including the BAI & BDI-II, which revealed that the applicant was experiencing clinically mild levels of anxiety and clinically minimal levels of depression; the Risk for Sexual Violence Protocol (RSVP), which indicated that the applicant is at a low risk of committing future sexual violence offences requiring no immediate action, with no other risks indicated; and the SAPROF (Structured Assessment of Protective Factors for Violence Risk which indicated that the applicant is in the high range of protective factors which may defend against committing future violent offences. 2. In oral evidence before the Tribunal, Mr Jones agreed that the applicant hadn't told him that he had sought treatment for depression in 2011 and 2012, nor had he told him that he had taken medication for depression at that time. He agreed that although this information would have been relevant to an assessment of his current mental health, he told the Tribunal that this information would not affect his assessment of the applicant. He told the Tribunal that the applicant's more recent history of workplace conflict would not have been relevant to the RSVP test taken by the applicant. 3. Mr Jones told the Tribunal that whilst it was 'not out of reach', on the information before him, he was not able to say whether the applicant had been in a dissociative state at the time of his offending behaviour. He agreed that there was nothing in the information before him to suggest an alternative explanation. 4. It was his view that the applicant's offending behaviour was linked to depression rather than being intrinsically sexual. 5. He agreed that the applicant's support system were protective factors against re-offending as was the success of his previous psychiatric and psychological treatment and intervention and the skills he has gained through this treatment and intervention. He noted that whilst the applicant had suffered significant stress in 2011, he did not re-offend, and that the applicant's partner and children would remain protective factors if they continued to support him upon their discovery of the offence, but that the applicant's score would be affected by an end to or destabilisation of these relationships. He disagreed that the applicant's failure to tell his family of the offending behaviour was indicative of possible future offending. According to Mr Jones, it was more likely to be the behaviour of someone who did not wish to publicly acknowledge the offence. As such, this was not a relevant factor in the applicant's rehabilitation. 6. Mr Jones didn't agree that the applicant lacked insight into his offending behaviour, but felt his reticence was an indication of his embarrassment about it. He told the Tribunal that the applicant's future risk of offending was no greater than that of anyone else in society. He noted the fact that the applicant had only offended once, in 2006. The fact that there had been no further offences since then further lowers his risk of reoffending. 7. Having considered subsequent documentation in which the applicant had not disclosed his previously mental health issues, Mr Jones told the Tribunal that his opinion remained that the applicant was a low risk of offending. Findings and reasons 1. Subsection 30(1) of the Child Protection (Working with Children) Act 2012 sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1). (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. 1. The applicant pleaded guilty to an act of indecency without consent. This involved the applicant masturbating whilst in a newsagency in the presence of a female assistant who was 36 years old. The circumstances of the offence were troubling and the applicant struggles to explain them. In his 2006 report, the psychologist, Dr Eryl Evans, stated that the applicant had suffered an episode of dissociation at the time of the offence brought on by overwhelming stress and anxiety. (b) the period of time since those offences or matters occurred and the conduct of the applicant since they occurred, 1. The index offence took place on 19 July 2006 and the applicant was sentenced on 19 October 2006. The applicant has not been convicted of any offences and, on the evidence before the Tribunal, has not since come to the attention of the authorities. (c) the age of the applicant at the time the offences or matters occurred, 1. At the time of the index offence, the applicant was 51 years old. (d) the age of the victim and any matters relating to the vulnerability of the victim, 1. The victim was 36 years old at the time of the offence. There is no information before the Tribunal relating to her vulnerability apart from the fact that she was alone on duty in the newsagency when the offence occurred. (e) 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 approximately 15 years, although the victim was a mature adult at the time of the offence. (f) whether the person knew, or could reasonably have known, that the victim was a child, 1. The victim was not a child at the time of the offence. (g) the person's present age, 1. The applicant is now 60 years old. (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 1. The index offence is the only offence contained on the applicant's criminal record. (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 1. In cross-examination before the Tribunal, the applicant struggled to explain his offending behaviour. An explanation for the behaviour was put forward by Dr Evans who described it as a dissociative episode brought on by anxiety and extreme stress and that the applicant would be unlikely to repeat it. The forensic psychologist, Mr Jones, did not necessarily agree with the diagnosis of dissociation but also proffered the opinion that the behaviour was unlikely to reoccur. He agreed that were such behaviour to be repeated, it would be in the context of further stress. It has now been nine years since the offending behaviour and there is no evidence before the Tribunal that the applicant has engaged in any further offending behaviour or in any anti-social behaviour at all. This is despite the fact that in the interim, the applicant has dealt with extremely stressful events in his life including workplace conflict and the onset of a major depressive episode. The Tribunal agrees with the applicant's submission that the fact that he has not re-offended despite these stressors bodes well for his future and increases the likelihood that he will not re-offend in the future. There is no evidence that the applicant has ever behaved inappropriately in the presence of children. 2. On the evidence before it, the Tribunal finds that a repetition of such an offence by the applicant, or of any offending behaviour that may impact on children, would be unlikely. (j) any information given by the applicant in, or in relation to, the application, 1. The applicant is the holder of a general registration in the ACT for working with vulnerable people (which includes working with children). In deciding to grant the registration, the ACT registration panel considered the applicant's offending behaviour and found that he poses no risk or an acceptable risk of harm to a vulnerable person. (k) any other matters that the Children's Guardian considers necessary. 1. The Children's Guardian opposes the application on the basis that the Tribunal could not be satisfied that the applicant has discharged the presumption that he poses a risk to the safety of children. 2. The Children's Guardian submits that the NSW legislation is more rigorous than that of the ACT and that, for this reason, the Tribunal should not place great weight on the approval given to the applicant to work with vulnerable people in the ACT. The Children's Guardian notes that under the legal regime in the ACT, there was no presumption of risk when considering the applicant's situation. 3. The Children's Guardian also submits that the applicant's credibility should be questioned in light of the inaccurate answers provided by him in his application to become a bus driver; his failure to disclose his full mental health history to his psychologist; and his failure to disclose the index offence in written documentation. In relation to the disqualifying offence, the Children's Guardian noted that this offence, as a sexual offence, is not capable of being spent and so remains disclosable. 4. The Children's Guardian also submits that the applicant's failure to disclose the index offence to his family would place him at a heightened risk of future offending behaviour. CONCLUSION 1. Having regard to all the above factors, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Child Protection (Working with Children) Act, and has displaced the presumption that he poses a risk to the safety of children. 2. The reasons for this finding are as follows: ● The Tribunal accepts the Children's Guardian's submission that, whilst not involving any harm to children, the circumstances of the index offence are somewhat troubling. It is not disputed that applicant's offending behaviour took place nine years ago at a time of great stress for him. There is no evidence to suggest that he has re-offended since this time despite being confronted with similarly stressful situations. This shows that, as foreshadowed by Dr Evans in his 2006 report, the applicant's insight into his behaviour and his ensuing remorse and embarrassment appear to have acted as strong deterrents to a repeat of any anti-social behaviour. The Tribunal does not accept that the applicant sought to minimise the seriousness of the offence in these proceedings. ● The Tribunal does not accept that the applicant's failure to disclose his offence to those practitioners dealing with his workplace issues was a deliberate attempt to mislead. Rather, the Tribunal accepts the applicant's evidence that it was his impression that he was there to deal with his workplace conflicts and that the index offence was not a relevant consideration. The Tribunal accepts that the applicant's embarrassment about the index offence was such that he had sought to put it to the back of his mind. This does not lead the Tribunal to have concerns in relation to the applicant's credibility. ● The applicant gave evidence that he has taught in schools and coached children's sporting teams. There is no evidence before the Tribunal that he ever behaved inappropriately in this capacity. The Children's Guardian concedes that, on the information available, the applicant has not been the subject of any complaint or disciplinary proceedings of a violent or sexual nature. ● The Tribunal found the applicant to be a credible witness and is satisfied that over the past nine years, he has managed to deal with stressful situations without engaging in any offending behaviour. ● The Tribunal accepts the evidence of Dr Evans that the applicant's offending behaviour likely took place when he was in a dissociative state and would be unlikely to reoccur. ● The Tribunal accepts the evidence of Mr Jones, who was examined at length by Mr Fraser for the Children's Guardian, that the applicant poses no greater risk to children than anyone else in the community. ● Whilst the Tribunal agrees that on occasions the applicant failed to disclose the index offence, the Tribunal is satisfied that, by doing so, he did not intend to mislead but was under the (false) impression that the fact that no conviction was recorded for the offence absolved him from the need to disclose it when asked whether he had ever been charged with or found guilty of an offence. The fact that the disqualifying offence does not appear on the police check for the applicant gives credence to the applicant's misapprehension in this regard. ● The Tribunal notes that the applicant has not disclosed the disqualifying offence to his family because of his embarrassment about it but accepts the evidence of Mr Jones that this does not mean he would not seek their help in dealing with future stressful situations. The Tribunal accepts the evidence of the applicant that his fiancée, in particular, is a strong support to him. ● The Tribunal accepts the submissions of the Children's Guardian that the test required to be satisfied for ACT registration to work with vulnerable person is less onerous that that required for the applicant to be granted an enabling order. Nevertheless, the assessment of the ACT registration panel that the applicant does not present a greater risk of committing a sexual offence than the general population - together with the recent opinion of Mr Jones that the applicant does not pose any greater risk to children than any other adult - do carry weight in these proceedings. Taking into consideration these opinions, together with the other oral and written evidence submitted, the Tribunal is satisfied that the applicant has proved that he is not a risk to children. ORDERS 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the index offence. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check 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: 23 March 2016