Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CPF v Children's Guardian [2016] NSWCATAD 305 Hearing dates: 29 September 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member R Royer, General Member Decision: The applicant's application for an enabling order is dismissed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of an act of indecency without consent– whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Cases Cited: Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69 Category: Principal judgment Parties: CPF (Applicant) Children's Guardian (Respondent) Representation: S Lawrence (Applicant) G Moore (Respondent) File Number(s): 1610331 Publication restriction: See order 2 REASONS FOR DECISION Background 1. On 17 March 2016, the applicant applied to the Office of the Children's Guardian (the respondent) for a Working with Children Check clearance. 2. On 8 April 2016, the respondent notified the applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for an act of indecency without consent, contrary to section 60(1) of the Crimes Act 1900 (ACT), and as a disqualified person he must not be granted a working with children check clearance. 3. On 6 May 2016, the applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an "enabling order"). 4. The matter was the subject of directions hearings conducted by the Tribunal, and orders were made for the filing and service of documents by the parties. On 29 September 2016, the Tribunal conducted a hearing of the application. At the conclusion of the hearing, the Tribunal reserved its decision. The working with children legislative scheme 1. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act). 2. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act). 3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. 4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act. 5. Section 13 of the Act provides that a person may apply to the Children's Guardian for a working with children check clearance. 6. Section 18(1) provides that the Children's Guardian must refuse an application for a clearance where the applicant is a 'disqualified person'. A person is a disqualified person by reason of having been convicted, or having proceedings commenced against an offence falling within Schedule 2 of the Act. 7. Section 1 (z) of Schedule 2 provides that an offence under a law of another State or a Territory, that, if committed in New South Wales, would constitute an offence listed in Schedule 2. In this matter, the applicant was convicted of the offence of an act of indecency without consent, contrary to section 60(1) of the Crimes Act 1900 (ACT). Section 60 of the ACT Crimes Act is equivalent to section 61N of the NSW Crimes Act. It is therefore considered a Schedule 2 offence. 8. The applicant's conviction was subsequently set aside. However, the applicant is still a disqualified person by virtue of the fact that proceedings had commenced against him in relation to the offence. Role of the Tribunal 1. Section 28 of the Act makes provision for review, by the Tribunal, of a decision that a person is a disqualified person, by declaring that he or she is not to be treated as a disqualified person. Section 28 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. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that: 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. 1. In addition, amendments to the Act which came into effect on 2 November 2015 inserted section 30(1A) as follows: The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. Procedure and practice of Tribunal 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67. 3. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but 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 Balencio (1987) 8 NSWLR 436. 4. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so. 5. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven." Burden of proof 1. As the applicant is a disqualified person seeking an enabling order pursuant to section 28 of the Act, there is a presumption that the applicant poses a risk to the safety of children. The issue to be decided 1. The issue for determination by the Tribunal is whether the applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children, and accordingly, whether he should (or should not) be granted an enabling order. Risk to the safety of children 1. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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, namely, "to the safety of children."" 1. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26]. 2. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area." Evidence before the Tribunal 1. The respondent tendered into evidence the documents gathered by the respondent in relation to the applicant's application, including documents provided by the applicant's employers and various departments and agencies, including the Australian Federal Police and Courts. 2. The applicant relied on his application, a number of character references, and material relating to his court proceedings. The applicant also relied upon a report of Professor Bruce Stevens, Clinical and Forensic Psychologist dated 7 July 2016, and a report of John Corcoran, Clinical Psychologist, dated 27 June 2016. The applicant, Professor Stevens and Mr Corcoran gave evidence at the hearing and were cross examined by Counsel for the respondent. 3. The evidence is now considered under each of the subheadings of section 30(1) of the Act, each of which the Tribunal must consider in its determination of the application (a) the seriousness of the offences with respect to which the person is a disqualified person 1. The matter that caused the refusal of the applicant's application for a clearance was a charge for an offence of an act of indecency without consent. The applicant was convicted of that offence on 7 August 2015 in the ACT Magistrates' Court. The conviction was subsequently set aside by the ACT Supreme Court on 16 March 2016. 2. The police facts indicate that at the relevant time, the applicant was working as a carer in an ACT nursing home, where he held the position of team leader. On Sunday 27 July 2014, the applicant was working a shift at the nursing home. Also working that day were kitchen staff members working in the nursing home's kitchen. The kitchen staff included the victim and her colleague. The applicant entered the kitchen where the victim was cutting vegetables. The applicant grabbed the victim suddenly from behind; grabbling around the victim's upper abdomen with his arms pushing up on her breasts. The victim described the force of being grabbed as though her ribs were being crushed and the air was being crushed out of her. The victim thought she was going to pass out. The applicant proceeded to lift the victim from the floor of the kitchen and carried her towards the staff office and dry storeroom. After reaching the doorway, the applicant put the victim down on the floor. Upon putting her down, the applicant proceeded to deliver a blow with his hand to victim's right buttock, causing sharp pain to the victim. The applicant then laughed, before walking out of the kitchen. 3. The incident was witnessed by the victim's colleague. The victim told her daughter, who also worked in the kitchen at the nursing home, about what had happened. The following day, the victim told her supervisor of the incident. Approximately a fortnight after the incident, the victim attended a rape crisis centre and received counselling. Following this, the victim reported the incident to a representative of the management of the nursing home. Management subsequently contacted the applicant and arranged a meeting. During the meeting, the applicant told management that he could not recall the incident. The applicant's employment was suspended pending a further meeting with management. The applicant failed to attend a scheduled meeting and also failed to respond to telephone contact by management. The applicant's employment was subsequently terminated. 4. A report to the Australian Federal Police was made. Police attended the applicant's premises, during which the applicant told police he could not recall the incident. The applicant declined to participate in a record of interview, as was his legal right, and he was charged with one offence of assault and one offence of an act of indecency without consent. The offence of assault related to the picking up of the victim under her breast and the carrying of her, and the offence of indecency related to the slap on the victim's buttock. 5. On 7 August 2015 in the Magistrates' Court, the applicant pleaded guilty to both offences. The police facts were tendered on sentence and a victim impact statement was read to the court. In her statement, the victim states that as a result of the applicant's actions she felt violated, intimidated and vulnerable. She also stated that in the 12 months following the assault, the victim had lost 22 kilograms, has had frequent absences from work due to sickness and psychological ill-health, has had continuous panic attacks at work and home and is often unable to drive herself to work. She stated that at work she is hyper vigilant and constantly scanning for danger, and has to lock the door for fear of someone entering the kitchen. She stated that her relationships with colleagues have been impacted and she is no longer able to join in the normal workplace jokes and banter, and does not take on extra shifts, affecting her financially. The victim stated her sleep has been significantly affected and she has regular nightmares and flashbacks. The victim stated that she is always afraid, and despite enjoying her independence, she now can no longer be on her own. She stated that her relationships with her husband and daughters have been affected since the offending occurred. 6. During the sentencing proceedings in the Magistrates' Court, the applicant's legal representative told the Court that the applicant was bewildered as to what could have motivated him to take the action that he did towards the victim. Reference was made to the applicant having a "brain snap"; and to there being no prior indication that the victim had at any time either encouraged or allowed such behaviour by the applicant. The applicant's legal representative told the Court that at the time of the offence, the applicant was under a degree of emotional distress, having lost his 25-year-old son in a motor vehicle accident in Queensland two months earlier, and was taking anti-depressant medication for anxiety. Submissions were made about the impact of a conviction on the applicant's prospects of employment in the aged care and security industries. 7. The Magistrate found the assault to be a mid-range of objective seriousness and the act of indecency at the lower range. The Magistrate recorded convictions for both offences. In respect of the assault offence the applicant was fined. In respect of the act indecency, the applicant was ordered to enter into a good behaviour order for a period of 24 months. The Magistrate observed that at the time of the offending the victim did not know what was going to happen to her and that it would have been a very frightening and humiliating experience. The Magistrate found the offending to be humiliating, degrading and demonstrated gross disrespect. The Magistrate also indicated were it not for the applicant's lack of a prior criminal history and otherwise good character, the penalties could have been far more severe because of its reprehensible nature. 8. The applicant lodged an appeal against the severity of his sentence. On 16 March 2016, the Supreme Court upheld the appeal, and set aside the convictions for both offences. The Court made a good behaviour order in respect of each offence for a period of 18 months. 9. The Court observed that the offences were "very odd" and that the applicant's motive for the offending conduct "remains completely obscure". The Court found that the recording of convictions was manifestly excessive, noting the inexplicable nature of the offences, the applicant's emotional distress during the relevant period, and the dramatic impact of the convictions on the applicant's future. (b)The period of time since the offence occurred and the conduct of the applicant since that time 1. The offence was committed approximately two years ago. 2. The applicant has no other relevant criminal convictions. His employment with the nursing home was terminated following the commission of the offences and he has not worked any further in the aged care sector. Since 2014, the applicant has been employed as a security guard and has worked in merchandising for a marketing company. He has also been continuing his studies for a diploma of nursing and has completed the theory component of that course. (c)The age of the applicant at the time the offence occurred 1. At the time of commission of the disqualifying offence, the applicant was aged 52 years. (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 1. The victim of the offence was aged 41 years. The victim was vulnerable in the sense that she was working in the course of her duties when the offence occurred. Whilst the victim's colleague was nearby and observed the applicant's actions, there were no members of management immediately present and the victim was not in a position to prevent the actions of the applicant. (e) the difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant 1. The difference in age between the victim and the applicant was 10 years. The applicant and the victim worked at the same workplace. She was employed as a chef by a business that provided services to the nursing home. The applicant held the position of team leader within the nursing home. There is no evidence of any relationship between the applicant and the victim outside of the workplace. There is some dispute as to whether the applicant was in position of authority in relation to the victim. On his own admission, the applicant was employed to improve the standard of care in the nursing home and was in charge of a number of staff members. Whilst he and the victim performed different types of work and the victim was not under his direct supervision, the Tribunal finds that the applicant did occupy a position of seniority as regards to the victim. (f) Whether the applicant knew, or could reasonably have known, that the victim was a child 1. The victim was not a child. (g) the applicant's present age 1. At the time of the Tribunal hearing, the applicant was 54 years of age. (h) the seriousness of the applicant's total criminal record and the conduct of the applicant since the offences occurred 1. Aside from the disqualifying offence, the applicant has one unrelated conviction in 2003 for driving with low range prescribed concentration of alcohol. 2. Further details of the applicant's conduct since his convictions are detailed in earlier paragraphs. (i) the likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition 1. For the purposes of the Tribunal proceedings, the applicant relied upon the written and oral evidence of Professor Stevens, Clinical and Forensic Psychologist and Mr Corcoran, Clinical Psychologist. Both persons were engaged by the applicant in the context of a decision on 29 April 2016 by the ACT Commissioner for Fair Trading to grant to the applicant a working with vulnerable people clearance with the condition that the applicant must be under direct "line of sight" supervision at all times while engaging with vulnerable people in a regulated activity or service. 2. Professor Stevens, who assessed the applicant on 21 June 2016, reports the applicant's description of the incident as follows: I am relying on his description. "I got on with the kitchen staff really well. Mucking around, I picked up a female staff member (in her 40's) and put her down (with one arm around her waist)". He denied any contact with her breast or genital area "not that I know of". She was fully clothed, "I picked her up and put her down. We laughed about it". Both of them continued with normal duties. Three weeks later she reported the incident in the work place and to the police. She did not know that he has a male partner. "I didn't say anything at all". The charge was "act of assault and act of indecency. I don't remember, apparently I slapped her on the buttocks". ……… (The applicant) regrets what he did, "I know I done the wrong thing. I can't work out why I did it. All along I have been worried about my ability to continue working, knowing it was a stupid thing I did." He was not given an opportunity to make an apology, but he wanted to say "sorry to her". One result was the loss of his job. He denied any sexual attraction to her "I am 80-90% attracted to males." He was a supervisor at the facility but he did not supervise kitchen staff, "I was employed to raise the standards of care". 1. Professor Stevens utilised a Personality Assessment Inventory testing tool. The results indicated the applicant had a valid profile, all scales were in the normal range, and there was no indication of the applicant having psychological problems. Professor Stevens described the applicant's conduct as an impulsive act and "foolish horseplay". Professor Stevens regarded the offending as not sexually motivated, consistent with the applicant being primarily attracted to males. Professor Stevens said there had been a profoundly deterrent effect on the applicant, and opined that the applicant would be at a low risk of re-offending and was unlikely to exploit any person in his professional care. 2. In response to questioning during cross examination, Professor Stevens admitted he did not conduct a formal and structured risk assessment of the applicant, and relied upon his clinical opinion in his assessment of the applicant's risk of re-offence. Professor Stevens said that had he been aware of a complaint against the applicant some 6-9 months earlier involving inappropriate physical contact with a female colleague (described in more detail later in these Reasons), Professor Stevens would have been more cautious in his assessment of the applicant, and would no longer consider the deterrent effect to be "profound". Professor Stevens also indicated that the applicant's failure to disclose the complaint during the course of the assessment was relevant to the applicant's credibility and would need to be investigated further. 3. A referral to Mr Corcoran was made to address concerns about the applicant's mental health, including the applicant's ongoing experiences of anxiety. Mr Corcoran began treating the applicant on 17 May 2016 and saw the applicant for a total of eight sessions. During the applicant's treatment, the disqualifying offending was raised. The applicant told Mr Corcoran he had a good working relationship with the woman, with whom he said he would often have a friendly joke. The applicant told Mr Corcoran he picked the woman up and carried her across the room but could not recall smacking her on the bottom. The applicant told Mr Corcoran that he was not in the habit of picking people up in that manner, and that his error of judgement might presumably have been due to the grief following his son's death and his propensity to anxiety. 4. Mr Corcoran conducted testing of the applicant utilising the Personality Assessment Inventory (PAI) and the Paulhus Deception Scale (PDS). On both tools scores were in the normal range. Mr Corcoran stated that the applicant's grief for his son would have contributed to his uncharacteristic behaviour and contributed to his error of judgment. In particular, Mr Corcoran said at the time, the applicant was experiencing significant loss in his life and was trying to maintain relaxed working relationships. It was suggested that the applicant, affected by grief, may have over-compensated in his joviality. Mr Corcoran said the applicant did not pick up on signals of the woman's distress. 5. Mr Corcoran suggested the applicant is not at any greater risk of offending than the average person off the street, citing the applicant's character references which describe the applicant to be competent, caring and compassionate; noting the lack of prior offending; the applicant's remorse and concern for the experience of the victim; and the applicant's ability to articulate appropriate boundaries around behaviour and his intention not to repeat his conduct. 6. In his report, Mr Corcoran stated that the applicant's mental health had improved significantly and he appeared to be quite capable of working in aged care and attending to his studies. Mr Corcoran opined the applicant is at no greater risk of offending against a vulnerable person than the average person off the street. 7. Mr Corcoran said that his treatment had involved addressing the applicant's need to "tune-in" into other people and recognise people's personal space. When questioned in cross examination about the prior complaint of inappropriate physical contact in the workplace, Mr Corcoran said he was aware that there had been "another difficult interaction" but was not aware of the details. (j) any information given by the applicant in, or in relation to, the application 1. The applicant gave evidence at the Tribunal hearing. He told the Tribunal that he is in a same-sex relationship with his partner of 15 years. He and his former wife had two children, a daughter and a son, the latter of whom passed away in 2014. After his separation, he looked after his children on weekends. 2. The applicant has engaged in various types of employment, including general labouring, office, retail, security, and hospitality work. He commenced working in the aged care sector in December 2003 upon completion of relevant studies. 3. In about October 2013, the applicant started work as a team leader in the nursing home where the offences took place. In his evidence before the Tribunal the applicant could not explain the reason for his conduct. He said he and the victim got along really well, including having a bit of fun with each other. He said he was horrified to think he caused so much pain and psychological damage to her. 4. In cross examination, the applicant conceded that he was able to perform his work duties in the two months following the death of his son and did not seek mental health assistance in relation to his grief. In response to questioning, the applicant said he could not really explain his actions, and that "maybe it was a brain snap at the time". He said he picked the victim up and put her back down, joked, laughed and walked away, and that both he and the victim were laughing at the relevant time. The applicant said he had no recall of striking the victim on the bottom. 5. The applicant produced written character references which he had relied upon during sentencing for his criminal matters. One referee had been a patient in a hospital where the applicant worked in 2011. The referee was complimentary of the care she received from hospital staff, which included the applicant, during her five-day admission. However, her memory of individual staff members was somewhat unclear. Another referee worked with the applicant at the nursing home where the offending occurred. She said the applicant worked hard and put his heart into his job and was sensitive to the needs of the residents. She did not witness or hear of any inappropriate behaviour by the applicant towards residents or family members. A similar reference was provided by a person who had worked with the applicant at a hospital for an 18-month period from 2012-2014. The Tribunal notes that there were other references referred to by the Court in the appeal proceedings in March 2016. However the names of such persons were not made available to the Tribunal and their references were not specifically tendered for the purposes of the Tribunal proceedings. 6. The applicant's criminal matters have affected his employment and he is no longer working as a carer. The applicant seeks a working with children check clearance in order to complete his nursing studies and commence work as a nurse. The applicant expressed that he would like to work with patients undergoing orthopaedic procedures and does not wish to work with aged or vulnerable people again. 7. Counsel for the applicant, who noted that the applicant has no prior criminal matters involving harm to a child, submitted that the applicant's offending in 2014 was not committed in a hostile or aggressive sense, and nor was it an inherently sexual act. Counsel for the applicant submitted that the impact on the victim would not have been in the contemplation of the applicant at the relevant time, and the applicant is now aware of the inappropriateness of the behaviour. 8. Counsel for the applicant also submitted that there has been a significant deterrent effect; with the punitive and demeaning experiences of the criminal and Tribunal proceedings tending to ameliorate the applicant's risk. Counsel for the applicant submitted that whilst objectively some risk does arise on a full and proper appreciation of the material, it is not a real and appreciable risk. Counsel further submitted that the public interest test in section 30(1A) has also been met by the applicant and the applicant should be granted an enabling order. (k) any other matters that the Children's Guardian considers necessary. 1. In the course of its inquiries, the respondent obtained material from the applicant's previous employers and from various government agencies, including the Australian Federal Police. The material indicates that in October 2010 the applicant was interviewed by Australian Federal Police over an incident at a nursing home where he was working as a team leader. The police material indicates that the applicant was taking an elderly resident with dementia to her room. It is alleged the resident refused to enter the room, and that the applicant pushed her twice on the back of her shoulder resulting in the resident falling head-first onto the floor. The applicant is alleged to have told a colleague who was present not to tell anyone about it. The matter was subsequently reported by a person other than the applicant to nursing home management and police were notified. 2. The alleged victim was interviewed. However, due to her dementia she was unable to provide a consistent account of the circumstances of her fall. The applicant was interviewed by police during which he denied assaulting the alleged victim; asserting instead that the victim had leaned forward and fallen on her face while he was escorting her to her room. 3. The police decided not to charge the applicant with assault as a result of "not being able to form the intention or recklessness to injure the victim". 4. The applicant denies assaulting the resident as alleged by material produced by the respondent. However, he admits that he did not make a report of the incident as required. The applicant said he panicked and did not think straight. He also said he had only recently started working at the nursing home which he claimed had a history of readily terminating staff. 5. The respondent also tendered into evidence material produced by the nursing home at which the applicant was working at the time of his disqualifying offending. The material reveals a number of complaints were made in relation to the applicant's conduct. Two complaints from December 2013 were from care staff expressing concern about the applicant's abrupt manner towards staff in front of residents. Two complaints from April 2014 were from care staff who complained of bullying and harassment by the applicant. Another complaint was from a resident in May 2014 who claimed that the applicant had yelled at her and told her that if she didn't take her tablets he would get a tube and blow them into her mouth. The resident said she was scared of the applicant and was worried about other residents. 6. In response to those complaints, the applicant gave evidence that he could not recall speaking rudely to anybody. He noted that at the time he was employed at the facility the staff were "running the facility" and did not like to be held to account. In response to the complaint by the resident, the applicant said he was instructed by management to watch the resident take her medication and that at the relevant time he was merely standing and waiting for her to take her medication. 7. In November 2013, a care staff member disclosed that the applicant had engaged in hair pulling and tickling actions that made her feel uncomfortable as it was against her culture. The care staff member had subsequently asked the applicant to cease his conduct, and at the time of her disclosure the applicant had not engaged in any further such behaviour. 8. When questioned by Counsel for the respondent, the applicant said that he touched, rather than pulled the staff member's hair. He admitted using his hands to tickle the staff member around the side of her waist, and said that his actions were done to "get along with her". The applicant also said he is a "touchy-feely" person. 9. The respondent opposes the application and submits the applicant has failed to discharge his onus to prove he is not a risk to the safety of children. Counsel for the respondent submitted that despite being counselled by his employer six months beforehand about hair-pulling and tickling of a colleague, this was insufficient to prevent the applicant from engaging in the disqualifying offending. Counsel for the respondent also pointed to the fact that both psychologists who reviewed the applicant indicated they would wish to investigate further the prior complaint. 10. Counsel for the respondent referred to the factors in section 30(1A) of the Act and submitted that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person, and as a consequence, the Tribunal should not grant an enabling order. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. See the relevant paragraphs in the Conclusion below. Conclusion 1. The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the applicant has discharged his onus to prove that he is not a risk to the safety of children. In this regard, the Tribunal is cognizant of the fact that the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application. 2. The Tribunal takes into account the fact that the applicant has no prior relevant convictions. His disqualifying offending was at the lower range of offences of the kind and did not involve a child victim. However, it was nevertheless serious; involving the commission of an act of indecency by the applicant in his workplace. It is evident that the victim has been very severely impacted by the applicant's conduct. The victim's employment, relationships, and general wellbeing have suffered as a result. The applicant's behaviour was clearly not merely foolish horseplay in the eyes of the victim. Moreover, the fact that the applicant's conduct formed the basis of a criminal prosecution is also indicative that it was not considered a trivial matter. The Tribunal finds that if the offending was to re-occur, the impact on a vulnerable person, such as a child, may be traumatic, causing fear and potential psychological harm. 3. In addition, whilst the Tribunal is cognizant of the fact that the applicant's convictions were subsequently set aside, the Tribunal notes that in setting aside the conviction for the act of indecency, it was open to the Court to dismiss the charge unconditionally. However, the Court elected to make the applicant subject to a good behaviour order for 18 months. 4. It is important to note that the role of the Court in determining the appropriate sentence for an offender is a very different one to that being exercised by this Tribunal. In this case, the Tribunal is required to determine whether the applicant, who by reason of his offending is presumed to pose a risk to the safety of children, has discharged his onus to prove that he does not pose such a risk. 5. In seeking to determine whether or not the applicant poses a real and appreciable risk to children, the motivation for the applicant's offending is, in the Tribunal's view, relevant in this case. The Tribunal noted that the applicant's conduct in 2014 does not appear to have been precipitated by any particular events or in the context of a relevant pre-existing relationship with the victim. There was no invitation or consent on the part of the victim and the motivation for the applicant's actions remains unexplained. The applicant apparently agrees to the facts constituting the assault offence. However, the applicant continues to maintain that he has no recollection of smacking the victim on the buttock; the act which wholly constitutes the disqualifying offence. This is despite his plea of guilty to that offence and the sworn evidence of both the victim and a staff member who witnessed his actions. 6. The Tribunal accepts that the applicant is remorseful and he acknowledges the victim's suffering. However, the applicant has been unable to provide any proper explanation for his actions; either during the criminal proceedings or the Tribunal proceedings. Nor has he been able to do so during eight sessions of psychological review and treatment. This places the Tribunal in a somewhat difficult position in seeking to determine whether such an act is likely to re-occur. 7. The Tribunal takes into account the fact that the conduct occurred shortly after the death of the applicant's son and at a time when the applicant was experiencing significant grief. However, this fact alone does not, in the Tribunal's view, explain the actions of the applicant, who continued to engage in work throughout the relevant period. In addition, although the applicant's treating psychologist is of the view that the applicant's grief was a significant factor in the offending, it was not identified specifically by Professor Stevens as contributing to the applicant's behaviour. Moreover, the Tribunal observed the level of concern shown by Professor Stevens when made aware of the failure of the applicant to disclose the existence of the earlier complaint against him, rendering Professor Stevens' assessment to be more cautious. 8. In addition, the Tribunal notes that Mr Corcoran's opinion was made in the context of his treatment of the applicant. Whilst the Tribunal is not unduly critical of Mr Corcoran, the Tribunal notes that a therapeutic relationship formed over a number of sessions could influence an on objective assessment of the applicant's risk. In this regard, the Tribunal preferred the evidence of Professor Stevens. 9. It was apparent that the details of prior complaints raised against the applicant were not fully disclosed to the psychologists providing an assessment of the applicant's risk. The Tribunal notes the 2010 allegation involving an elderly resident in the applicant's care did not result in any criminal charges being laid against the applicant. The Tribunal was unable to make a positive finding that an assault occurred in 2010 as alleged. However, when considered as a whole, the material produced by the respondent raises concern. The 2010 incident, which was witnessed by another person and was not reported by the applicant as was required, occurred in the workplace and involved a vulnerable person in the applicant's care. The Tribunal was satisfied that the material was probative and relevant to the issue to be determined by the Tribunal, namely, the question of the applicant's risk to the safety of vulnerable people, which necessarily includes children. Therefore, although not satisfied that the allegation has been made out, the Tribunal concludes that the circumstances surrounding the 2010 incident means that the existence of a risk has not been disproven. 10. The Tribunal was also concerned about the applicant's conduct approximately six months prior to the commission of his disqualifying offending. In particular, the applicant, who admitted to tickling the complainant around the waist and touching her hair, was not sufficiently deterred from engaging in inappropriate physical conduct in his workplace despite counselling from his employer. Relevantly, in respect of both complaints the persons involved were either vulnerable or in an unequal position of power and authority. 11. However, it is important to note that the Tribunal gave little weight to the complaints by the applicant's former colleagues and a resident in April and May 2014. The complaints were vague in nature and there was no suggestion that the applicant engaged in inappropriate physical conduct against any of the complainants. 12. The Tribunal takes into account the fact that the applicant has no criminal record involving offences against children. There is no evidence of inappropriate behaviour directed towards children in his workplace or in any other circumstances. The Tribunal notes that the applicant co-parented his two children during their childhood, and has on occasions cared for his grandchildren. The Tribunal notes the evident grief the applicant has experienced following the death of his son. The Tribunal also recognises the criminal matters have adversely affected the applicant's employment, and have jeopardised his ability to pursue a career in the nursing profession. 13. The Tribunal took into account the character references in the material produced by the applicant. However, little weight could be placed on that evidence. One reference was from a former patient who had a five day hospital admission in 2011 during which she cared for by a team of hospital staff that included the applicant. The referee had an unclear memory of individual staff members and there is no evidence she has had any contact with the applicant since that date. The other two referees apparently worked with the applicant for periods of 18 months or less, and it is unclear as to their specific roles in relation to the applicant. The Tribunal notes that additional references were provided to the Court in the context of the applicant's criminal proceedings. Whilst referred to by the Court during the applicant's appeal against sentence, the referees' names were not disclosed for the purposes of the Tribunal proceedings. Nor do any of the references relied upon by the applicant address specifically the applicant's application for a working with children check clearance and his risk or otherwise to the safety of children. 14. Additionally, there was no evidence from any employers, family members or friends as to the applicant's conduct with children. There is no evidence the applicant has worked with children previously, and although the applicant has had some contact with his grandchildren, it is not regular and consistent contact so as to indicate he has recent experience supervising or caring for children. 15. Furthermore, of most significance is the fact that the applicant's disqualifying offending is relatively recent. It cannot be said that there has been a lengthy passage of time since the conduct occurred. The applicant continues to remain subject to a good behaviour order, which does not expire until September 2017. In light of the recency of the offending and the fact that the applicant remains subject to a good behaviour bond, the Tribunal could not be satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work. Furthermore, the Tribunal is not satisfied that it is in the public interest to make an order enabling the applicant to be granted a working with children check clearance. 16. Unlike the current clearance the applicant holds in the ACT which has been granted with the condition that the applicant must be under direct line of sight supervision at all times, no such condition may be imposed upon the grant of a working with children check clearance in New South Wales. Whilst the applicant states that he does not wish to work with children or vulnerable people per se, the Tribunal accepts that if the applicant is granted a clearance in New South Wales he may work with any children of any age. Moreover, it is of relevance that the applicant's disqualifying offending occurred while in his workplace. The applicant indicates a wish to pursue a career in the nursing profession, including working in hospitals where children may be present. 17. The Tribunal is cognisant of the fact that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, the Tribunal cannot be satisfied that the applicant has discharged his onus to prove that he is not a risk to children. Accordingly, his application for an enabling order is refused. 18. However, it is important to note that the Tribunal's dismissal of the application on this occasion does not necessarily mean that the applicant will fail to obtain a clearance in the event he makes a further application at some time in the future. Whilst a person is prevented from making a further application for a period of five years after the refusal notice was given, a change of circumstances can invoke the discretion of the Children's Guardian to permit a further application earlier than five years (see section 13A of the Act). 19. In this regard, the Tribunal finds the applicant has demonstrated commitment to his rehabilitation and treatment. He has engaged with his treating psychologist about his issues including recognising appropriate boundaries. A passage of time (including when he is no longer subject to a Court ordered bond) and a further opportunity to demonstrate compliance with his good behaviour bond and the engagement of appropriate conduct in the workplace will be in the applicant's interests. The applicant may wish to consider an early application for a working with children check clearance in the future. However, it will be a matter for the Children's Guardian to determine, on the information provided by the applicant at that time, as to whether that application be permitted. ORDERS 1. Accordingly, the orders of the Tribunal are as follows: 1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) is refused and dismissed. 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited. 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 Amendments 24 January 2017 - Paragraph 29: Corrected 3 September 2015 to 7 August 2015. Paragraph 29: Corrected 24 March 2016 to 16 March 2016 Paragraph 36: Corrected 29 March 2016 to 16 March 2016 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: 24 January 2017