Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CSV v Children's Guardian [2017] NSWCATAD 56 Hearing dates: 9 December 2016 Date of orders: 17 February 2017 Decision date: 17 February 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member B Field, General Member Decision: The Applicants application for an enabling order is dismissed. Catchwords: ADMINISTRATIVE LAW – whether the Applicant has rebutted the presumption that he poses a risk to the safety of children. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: BHA v Children's Guardian [2014] NWCATAD 161 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v FZ NSWCA 111 Category: Principal judgment Parties: CSV (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitors: CSV (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1610609 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. The Applicant referred to as "CSV" seeks an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (the Act). The Applicant applied for a Working with Children Check Clearance (WWCCC) on 20 July 2016. The Respondent notified the Applicant on 11 August 2016 that he was deemed to be a disqualified person under the Act and presumed to pose a risk to the safety of children and refused to grant the Applicant a WWCCC. The Tribunal received this application on 9 September 2016, which was within the time allowed. 2. The Applicant is a 65 year old man living in regional NSW with his second wife. He has driven passenger and commercial vehicles for over 20 years. He currently requires a WCCC in order to volunteer as a bus driver to transport people including children, to sporting events and excursions. The Applicant receives a disability pension because he suffers from depression, which is treated with medication. 3. The Applicant is deemed to be a disqualified person under section 18 of the Act because of a conviction in 1977 of the offence of Unlawful Carnal Knowledge under the Queensland Criminal Code (the disqualifying offence). 4. The Respondent opposes the grant of an enabling order. 5. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the Applicant without leave of the Tribunal. 6. The Tribunal considers that the Applicant has not displaced the presumption that he poses a risk to the safety of children and refuses the application for an enabling order for the reasons set out below. The Act 1. 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: Section 4, the Act. 2. The jurisdiction of the Tribunal in considering whether to grant an enabling order is protective and not punitive in nature (BHA v Children's Guardian [2014] NWCATAD 161 and Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]). 3. Section 28(7) of the Act provides that in any proceedings where an enabling order is sought, it is presumed unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children. 4. It is well established that the word "risk" in the Act is construed to mean a risk that is "real and appreciable" in relation to the safety of children and greater than the risk of any adult preying on children (BKE v Office of Children's Guardian & Anor [2015] NSWSC 523). 5. The Applicant bears the burden of proof in these proceedings, in which he must establish on the balance or probabilities, that he does not pose a risk to the safety of children. 6. In determining this application, the Tribunal must first have regard to the factors set out in section 30 (1) of the Act. If the Tribunal is considering making an enabling order, it then needs to consider the two-part test set out in section 30 (1A) of the Act. The material before the Tribunal 1. The Tribunal was provided with the following material to consider in determining this application: 1. Applicant's application dated 9 September 2016. 2. Notice to Disqualified Person dated 11 August 2016. 3. Letter from BS in support of the Applicant dated 8 September 2016. 4. Letter from Medical Centre dated 2 September 2016. 5. National Police Certificate received 26 September 2016. 6. Letter from GP dated 16 October 2016 providing a character reference. 7. Letter from SJ (undated) providing a character reference for the Applicant. 8. Letter from NH dated 14 October 2016 providing a character reference for the Applicant. 9. Documents filed on behalf of the Respondent received 3 November 2016. 10. Documents filed on behalf of the Respondent received 1 December 2016. 11. Submissions filed on behalf of the Respondent received 5 December 2016. 12. Letter from Greyhound Australia received on 6 December 2016 in response to summons to produce documents. 13. Letter from Family and Community Services dated 5 December 2016 in response to request for information. 14. Letter from the NSW Crown Solicitor's Office to the Applicant dated 29 September 2016. 1. A Hearing was held in Sydney. The Applicant was present and not legally represented. The Applicant did not provide a statement in these proceedings but gave oral evidence. The disqualifying offence 1. The disqualifying offence was perpetrated on a girl aged 14 years. She was looking after the Applicant's 18 month old child on a Sunday afternoon while he and his first wife went to a wedding. The victim's mother told the Police that when her daughter returned home she was "hysterical" and appeared to have consumed alcohol. The victim said to the Police that she had been drinking with the Applicant and his wife while they were watching television after they returned home. The Applicant then drove her home. On the way, she said they stopped and had sexual intercourse. The victim told the police that she consented to this. 2. When interviewed by the Police, the Applicant admitted to having sexual intercourse with the victim. He said that he knew the victim was young. He said he thought she was about 15 years old. The Police records refer to the Applicant saying that they "made advances" to each other. He said he had been drinking and his "passions got the better of him". The Applicant entered a plea of guilty and was admitted to probation for two years. Complaint in 2007 1. Police records provided to the Respondent indicate that the Applicant was the subject of another complaint to the Police in 2007. This complaint was made by a female relative of the Applicant about events she said took place between 1978 and 1980 when she was about 8 years old. She said the abuse occurred when the Applicant was babysitting her and her two siblings. She said they did not have sexual intercourse. The complainant described two incidents in particular. 2. The complainant said she decided to report this to the Police after she had heard about the charge of Carnal Knowledge against the Applicant because she was concerned that the Applicant might "still be involved in this kind of activity and is concerned for his current family". However the complainant told the Police that she did not wish to pursue the matter in Court. No further action was taken. The Applicant's evidence 1. The Applicant said to the Tribunal that he apologised to the victim and her father, who was working for him at the time of the offence, though this apology was not made by him in open court but conveyed through his solicitor. He said he could not recall drinking alcohol with the victim but said he and his wife had been at a wedding where he had been drinking. He said the victim consented to having sexual intercourse with him. When asked whether the victim made advances towards him he said "I'd say yes". But he also said "I will take the blame". Asked whether he said to the Police that his "passions got the better of him" he said that he did not recall saying that but that he must have. He said the victim "dressed above her age" and that she did not appear to be upset afterwards. He said that he should not have taken advantage of her. 2. During the course of giving evidence, the Applicant said he was confused about dates in relation to events following the disqualifying offence. He initially told the Tribunal that he was so "disgusted with myself" that he did not want to be around anyone. He said he resigned from his job and left his wife, their house (with a mortgage), and their 18 month old baby. He has had no further contact with this child since then. He said he worked driving trucks from Sydney to Perth for 4 years to "stay away from people" and to "punish" himself because he was so "ashamed" of what he did. However the Applicant subsequently conceded in the course of giving his evidence that he re-married in 1978, the year following the disqualifying offence. He apologised for his confusion surrounding these events. 3. The Tribunal does not consider that the Applicant was intentionally trying to mislead the Tribunal about dates and events and accepts that he felt remorse, and continues to feel guilty about his conduct in relation to the disqualifying offence. However the extent to which this remorse was the catalyst or responsible for the separation from his first wife, estrangement from their child, and working as a long distance truck driver is not clear. 4. The Applicant said that he has occasional contact with his other children and step children and has what he considers as normal relationships with family members. 5. In relation to the complaint made about him in 2007, the Applicant said that it was "total rubbish". He said to the Tribunal that the complainant was "little miss prim and no-one could get near her". He said "my wife would have been disgusted" and "none of this happened". He said the allegations were never put to him. He said he could not recall babysitting these children (the children of his sister) because he was always away driving trucks. He said that during this time he did his washing at his mother's place, which was about 2 blocks away from where his sister and her children lived. He said he had no contact with the complainant (who is his sister's middle child) since 1982, but for no particular reason. He said that he continues to have occasional contact with his sister. 6. The complainant did not sign a statement or participate in a record of interview when making the complaint. There is no corroborative evidence and the Applicant strongly denies these events took place. The Tribunal can therefore only have regard to the fact that this complaint was made, but cannot make any finding about the Applicant's conduct in relation to it. References provided by the Applicant 1. The Applicant provided a reference from a woman "BS" dated 8 September 2016. It states that the Applicant "has explained to me the issues regarding applying for a WWCC, I am aware of his past and do not believe he would be a concern for any child or young person". It further states "I am currently employed at Community Services with my experience and professional judgment I do not believe [the Applicant] would be at anytime a person causing harm to children of any age". 2. The Applicant told the Tribunal that he disclosed the disqualifying offence to BS about a week before she wrote the reference for him. He said he asked her for a personal reference but said he first needed to tell her something. He said he told her about the disqualifying offence but said to her that that the victim was 16 years old because that was how old he thought she was at the time of the offence. He said he thought BS might be a social worker and got to know her through her husband, with whom he goes fishing. 3. The Tribunal takes this reference into account but on the basis that BS does not provide details of the capacity in which she is employed by Community Services or include any of the details which were disclosed to her by the Applicant about the disqualifying offence. As such the Tribunal treats this reference as one made in a personal capacity and that BS was under the impression that the victim was two years older than she in fact was. It is not known whether this difference in the age of the victim would have had an impact on BS's support for the Applicant in providing this reference. These factors accordingly reduce the weight that can be afforded to BS's reference in support of the Applicant. 4. The other character references in support of his application are two references from friends of the Applicant (for over 20 years) and another from a former employer. These references speak highly of the Applicant, but none of them refer to the disqualifying offence or specifically to him having contact with young people or children. Accordingly the Tribunal can only give these references minimal weight. Medical Evidence 1. The Applicant provides a letter from a General Practitioner at a Medical Centre who certifies that the Applicant has been suffering from Depression "which is well managed on medications". If further states that the Applicant is regularly followed up for this condition. There is no information provided about the length of treatment, prognosis, or impact this condition has on the Applicant's conduct or his life in general. It does not refer to these proceedings or whether the Applicant poses a risk to the safety of children. As such, whilst it provides information about a medical condition for which the Applicant is being treated, it does not provide any medical or expert opinion in support of the Applicant's case that he does not pose a risk to the safety of children. 2. The Respondent obtained medical records which disclose medical conditions in the Applicant's history including Post Traumatic Stress Disorder following witnessing a fatal road accident. There is also reference to an anxiety disorder managed by medication and "anger issues". The Applicant has had contact with the local mental health in-patient unit and community-based mental health team. 3. The Applicant told the Tribunal about difficulties he has had with abusing medication in the past particularly when he was driving trucks long distances, but this is no longer the case. He said he sees his GP once a fortnight, but no-one else for his mental health, despite this being suggested to him. He said the medication he is currently taking does not impact on his capacity to drive. 4. The Applicant told the Tribunal it was not possible for him to obtain a psychiatric or psychological assessment for these proceedings. Accordingly there is no medical or other expert report available to the Tribunal in relation to whether the Applicant poses a risk to the safety of children or young people. Factors the Tribunal must take into account 1. Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act: 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. The seriousness of the offences or any matters that caused a refusal of a clearance 1. The offence of Carnal Knowledge is considered by the Tribunal to be a serious one given the age difference between the victim and the Applicant and the circumstances in which it occurred. The victim was babysitting for the Applicant. Her father worked with the Applicant and he was known to her family. Although she told the Police that she consented to sexual intercourse, her mother said she was "hysterical" when she got home. The Applicant was an adult in position of trust in relation to the victim. 2. No inference can be drawn in relation to the complaint made in 2007 which refers to events said to have occurred in 1978, the year following the disqualifying offence. The period of time since the offence occurred and the conduct of the person since they occurred 1. The offence occurred in 1977. 2. There is a charge of negligent driving and issues in relation to the misuse of prescription medication. 3. There are no complaints made in relation to the Applicant's work as a bus driver or in any professional capacity. The age of the person at the time of the offences 1. The Applicant was 25 years old at the time of the disqualifying offence. The age of the victim 1. The victim was 14 years old. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The age difference was about 10 years. The Applicant said to the Police at the time that he thought the victim was 15 years old. The Applicant told the Tribunal that the victim's father worked for him at the time of the offence. The Applicant was therefore known to the victim's family. Whether the person knew, or could reasonably have known, that the victim was a child 1. The Applicant knew and accepts that the victim was a child. The person's present age 1. The Applicant is 65 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The Police records obtained by the Respondent indicate that the Applicant was involved in break, enter and steal offences in 1966 when he was 14 years old. The Tribunal is satisfied that these offences do not have a bearing on whether the Applicant poses a risk to the safety of children. 2. The Applicant also disclosed a charge of negligent driving in the 1980's, which was not contained in any of the material provided by the Police. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition 1. The Respondent's written submissions refer to the Applicant's lack of candour with respect to inquiries the Respondent made in relation to his mental health treatment and illicit use of drugs. Following cross examination, Respondent's Counsel told the Tribunal that these submissions were withdrawn on the basis of the evidence given by the Applicant at the Hearing, including that he made no attempt to conceal psychological treatment and his use of medication. The Applicant also voluntarily offered information about the charge of negligent driving, which was not contained in the records obtained by the Respondent. 2. The Respondent accepts there is also no evidence of current illicit use of drugs, which was a matter raised in the Respondent's written submissions. 3. The disqualifying offence is an isolated event that occurred some 40 years ago and there is no evidence of any repetition of such conduct. The Applicant expresses regret for his conduct in relation to the disqualifying offence. There is no medical or expert opinion available in relation to the likelihood of the Applicant engaging in similar conduct. The Tribunal must consider the fact that this was an isolated event, and the extent to which the Applicant's expressions of regret and remorse impacts on the likelihood of repetition of conduct that gave rise to the disqualifying offence. The Applicant conceded the events that took place to the Police at the time, pleaded guilty to the offence, and offered an apology to the victim and her father through his solicitor. He told the Tribunal that he accepts he should take the blame for what occurred, but agreed that they "made advances to one another". In this regard, the Respondent's submissions refer to the Applicant making no mention of the rights and interests of the victim other than she was "dressed as an adult", which the Respondent says is inconsistent with the Applicant's knowledge at the time of the age of the victim. 4. The Tribunal takes into account that the Applicant accepts that his conduct was wrong and felt guilty about it. However on the basis of the limited information available, the Tribunal cannot be satisfied that the Applicant's expression of remorse about the offence would deter or otherwise, the Applicant from repeating similar conduct in the future. Any information given in, or in relation to, the Application 1. In addition to the Applicant's evidence, the only information provided by the Applicant in support of the application are the personal references referred to above. Conclusion and orders 1. The Act requires the Applicant to displace the presumption that he does not pose a risk to the safety of children. 2. There is no expert or professional evidence of any kind to support the Applicant in this application and the references he has provided can only be afforded minimal weight. The Tribunal does not have any expert evidence in relation to the Applicant's current mental health with reference to any risk to the safety of children. 3. The Tribunal considers the evidence provided by the Applicant to be truthful and genuine. Whilst he struggled at times to keep track of documents and historical dates, he was able to participate meaningfully in these proceedings and came across as wanting to cooperate and be helpful. 4. However taking into account the factors set out in section 30 of the Act and the limited information provided in support of the application, the Tribunal considers that the Applicant has not displaced the presumption that he poses a risk to the safety of children and does not consider that an enabling order should be made. As such, the Tribunal is not required to proceed to consider the factors set out in section 30 (1A) of the Act. 5. The Tribunal orders that: 1. The Applicants application for an enabling order is dismissed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 06 March 2017 - Case Title - applicant anonymisation corrected 21 September 2017 - Decision - orders corrected 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: 21 September 2017