Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CRJ v Children's Guardian [2017] NSWCATAD 170 Hearing dates: 15 February 2017 Date of orders: 30 May 2017 Decision date: 30 May 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Grant Senior Member A Limbury General Member Decision: The decision of the respondent to refuse a Working with Children Check Clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance - trigger offences against applicant involving a child – child being a person under 18 years - charges did not proceed – admissions by applicant – evidence – whether applicant poses a risk to the safety of children – assessment of risk. Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children's Guardian [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949. R v Commission for Children and Young People [2002] NSWlRComm 101 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CRJ (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Giacomo (Respondent) Self-represented (Applicant) File Number(s): 2016/00378271, 1610508 Publication restriction: Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal. reasons for Decision 1. The applicant applied for administrative review of a decision of the respondent, the Children's Guardian, to refuse him a Working with Children Check Clearance (WWCCC). This decision was made on the 1 August 2016. The decision was made after a mandatory risk assessment carried out by the respondent. 2. After consideration of all the evidence and material the Tribunal has decided to affirm the respondent's decision. The reasons are set out below. 3. Due to the sensitive nature of the proceedings, the Tribunal made an order under s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting publication or broadcasting of any information identifying the names of the applicant, witnesses, or evidence given or received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Under this order the applicant has been given the pseudonym, CRJ to be used for the applicant's name. Background 1. On 25 January 2016, the applicant made an application to the respondent for a WWCCC. He is 58 years old and has been an involved committee member of a local sporting club for the last 20 years and requires a WWCCC to continue to participate in the club. 2. The respondent conducted a risk assessment under s.14 of Child Protection (Working with Children) Act 2012 ('the Act') as the applicant had previously been charged with the following Schedule 1 trigger offences: 1. Assault with act of indecency pursuant to section 61L Crimes Act 1900. 2. Sexual intercourse with a person older than 14 years of age but younger than 16 years of age pursuant to section 66C of the Crimes Act. – 4 separate charges. 3. Aggravated sexual assault – victim under the age of 16 years of age pursuant to section 61J Crimes Act. 4. Stalk/ intimidate with intent to cause fear physical/ mental harm pursuant to section 562AB(1) Crimes Act 1. The above matters related to incidents in 2004 and 2005. 2. On 5 February 2016, the respondent placed an interim bar on the application. On 1 August 2016, after completing a risk assessment, the respondent decided to refuse to grant a clearance to the applicant. 3. Under s.27(1) of the Act the applicant filed an application for administrative review of the decision on the 9 August 2016. The application was filed on time and there is no issue about the Tribunal's jurisdiction to hear and determine the matter. 4. The Tribunal's function is to decide what is the correct and preferable decision having regard to the material before it. (s.63(1) Administrative Decisions Review Act 1997) Details of the offences that triggered the risk assessment 1. In 2005, when the applicant was 46 years old, he was charged with sexually assaulting two young daughters of his friend who lived close by and in the same street. The most serious offences were against the younger daughter and took place over several months, from September 2004 to July 2005. The younger daughter will be referred to as 'AB' in this decision. It was alleged the applicant had anal and vaginal penetrative sex and oral sex with AB on several occasions when AB was aged between 14 and under 16 years of age. The offences took place in the applicant's home and in his café. 2. The applicant did not deny having sex with AB as described in the charges. However, he contended it was consensual sex and AB was either 16 or 17 years of age at the time. That is, she was born in 1987 and not in 1989 as claimed by AB, her family and the police. 3. The AB charges came before the Court but proceedings were delayed to allow the applicant's solicitors to provide documentation attesting to AB's date of birth. In pursuing the charges the DPP relied on information from AB's birth certificate and passport that confirmed her date of birth making her 14 years of age when the applicant first had sex with her. However, the applicant's solicitor obtained an overseas document that stated AB's date of birth as making her 17 years of age when the applicant first had sex with her. The DPP decided not to proceed due to the conflict of evidence about AB's date of birth and withdrew the charges against the applicant. 4. The applicant was also charged with sexually assaulting the older daughter. This offence took place in September 2004. The older daughter will be referred to as "AC" in this decision. It is alleged that when the applicant was alone with AC in his home he placed his right arm around her throat from behind and said to her, "you have a great body and your skin is so smooth". He then rubbed her breasts and vagina and tried to kiss her on the neck. She then broke free and ran home. She did not disclose the offence to anyone until her sister, AB made her disclosure in July 2005. 5. The applicant denied the charge of sexual assault involving AC stating she made up the offence to support her sister. In September 2007, the matter was heard by the Local Court. AC and members of her family gave evidence in the hearing. The Court dismissed the charges. However, there is no records of the oral evidence or the reasons why the charges were dismissed. The respondent requested these records but they were apparently destroyed some time ago. The Hearing 1. The applicant was not legally represented during the hearing. The respondent was represented by counsel. 2. The applicant gave oral evidence in the hearing and was cross-examined by counsel for the respondent. No other witnesses were called by either party and both the applicant and the respondent gave oral final submissions. Documents 1. The applicant provided the following documentation: 1. Written submission filed 10 November 206, further submission filed 14 February 2017 and email to respondent dated 15 February 2016 2. Letter from NSW Local Court advice of Court date on 5 May 2006 3. Birth certificate attesting to AB's date of birth as 26 July 1987 4. Statutory declaration from applicant dated 15 February 2016 5. Reference from president of sporting club dated 17 February 2016 and media profile of president and club 1. The Respondent provided a s.58 bundle of document that included: 1. Letter from respondent of 1 August 2016 advising the decision to refuse the applicant a WWCCC and reasons for decision. 2. Police brief of evidence in relation to 2004/ 2005 offences against applicant including facts sheets, transcript of ERISP of police interviews and witness statements. 3. Court file including continuation sheets, cover sheets, police fact sheets, bail undertakings, record of exhibits and orders made. 4. DPP letter to respondent regarding withdrawal of charges 5. Email from investigating officer to respondent dated 5 September 2016 6. Updated Criminal history of applicant 7. File notes from Department of Family and Community Services (FACS) regarding a 1999 notification against applicant and Joint Investigation team file on the investigation. 8. Email correspondence between applicant and respondent and respondent file notes in matter. Applicable Law and legal principles 1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; s.3 of the Act. 2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s.4 of the Act. 3. Children are defined as persons under the age of 18 years; s.5 of the Act 4. The Children's Guardian must conduct a risk assessment where proceedings have been commenced against a person for offences of sexual or indecent assault as specified in Schedule 1 of the Act; s.14 of the Act. 5. The Children's Guardian will consider those matters set out in s.15(4) of the Act in making a risk assessment. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children; s.18(2) of the Act 6. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision; s.27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s.27(4) of the Act. 7. Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111. 8. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: BJB at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101. 9. The issue for the Tribunal as required by s.18(2) of the Act is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. It is well established that the test to be applied is whether the risk posed by the applicant is 'real and appreciable in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the words that follow, namely, "to the safety of children"…' see Commission for Children and Young People v V (2002) 56 NSWLR 476. 10. 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 order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act. CHB at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267. Consideration of s.30(1) factors and Findings Seriousness of any matters that caused the assessment in relation to the person AB Charges 1. The charges of the sexual assault against the applicant involving AB were extremely serious. There were 4 separate charges of sexual intercourse with a child above the age of 14 years and under 16 years. A conviction on each of these charges is liable to imprisonment for 10 years. There was also one charge of aggravated sexual assault and a conviction on this charge is liable to imprisonment for 20 years. 2. The police interviewed AB and she stated the applicant first had sex with her when she was 14 years old. He had penile/vaginal sex on six or seven occasions. He digitally penetrated AB on two to three occasions and he made her give him a 'head job'. She told police that on occasions it hurt and she told the applicant to stop but he continued until he ejaculated. 3. The applicant's position is the sexual acts between himself and AB were consensual and further, she was 16 years or over at the time of these acts. When the applicant was arrested by police in July 2005 he broke down in front of the police, clutched his face with his hands and said, "I'm not going to deny it. I know it's wrong… I shouldn't have done it". This applicant was interviewed by police and he confirmed this admission. He later told the respondent during the risk assessment stage, that his admission "was on moral grounds not on legal grounds". In evidence the applicant explained that he was referring to his own moral duty and obligations to his wife and children. 4. The applicant gave evidence in these proceedings and was cross-examined. During the cross-examination, he agreed with propositions put by the respondent's counsel including that he engaged in kissing AB, tongue kissing AB, putting his hand up AB's skirt, digitally penetrating AB and having oral sex "a couple of times" and having vaginal sex "six or seven times" with AB. 5. Regardless of whether AB is 14, 15, 16 or 17 years old, the applicant's graphic evidence in admitting various sexual acts with AB is disturbing and extremely serious given she was still a child at the time and he was at least 29 years her senior. AC Charges 1. The charge against the applicant involving AC was indecent assault. The allegation was that the applicant rubbed her breast and vagina before she broke away. This charge is very serious and a conviction is liable to a term of imprisonment of 5 years. The matter was heard in a two day local court hearing in September 2007. The documents before the Tribunal include a statement made by AC to the police, however there is no transcript of the hearing or any information about what transpired during the hearing. The applicant denied the allegations made by AC and pleaded not guilty and the charges were ultimately dismissed by the Court. In view of the Court's dismissal of the charges and the absence of any further material or evidence, the Tribunal can give little weight to the allegations of indecent assault made by AC against the applicant. FACS notification and report in 1999/ 2000 1. In addition to the above trigger offences, the respondent provided information of a report from the Department of Family and Community Services (FACS) about an allegation against the applicant concerning a 9 year old female child. It alleged in 1999 the applicant was minding the child for a friend when he indecently assaulted the child by placing his hands on her vagina whilst she was in bed. The report was passed on to the Joint Investigation Response Team (JIRT) who interviewed the child. JIRT decided not to proceed further as the report was made by the child to her mother some nine months after the alleged incident and there were no other witnesses. The applicant was not interviewed by JIRT at the time of the investigation. The applicant subsequently denied the allegation. Given the lack of tested evidence and the decision by JIRT not to interview the applicant or pursue the matter, the Tribunal does not give weight to this matter. b) The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The trigger offences involving AB and AC occurred approximately 12 years ago. The applicant has no other criminal charges or convictions or allegations against him since they occurred. c) The age of the person at the time the offences or matters occurred. 1. The applicant was 47 years old at the time of the charges involving AB and AC. d) The age of each victim of any relevant offence or conduct at the time it occurred and many matters relating to the vulnerability of the victim. 1. AB told police her date of birth was 27 November 1989 and she was 15 years old at the time of the interview and was 14 years old when the applicant first had sex with her. AB's mother and father all agreed her date of birth was 27 November 1989. The respondent provided a birth certificate and passports from two different countries and immigration records that attest to her date of birth as 27 November 1989. 2. The applicant's solicitor in the criminal proceedings relied on another birth certificate from AB's country of birth stating AB's date of birth (making her 17 years old at the time of the alleged offences). The investigating police officer in the criminal proceedings wrote to the respondent advising there was an allegation that the applicant had perverted the course of justice by paying an administrative worker in AB's country of birth to falsify the birth certificate and that worker had subsequently been charged with falsifying AB's birth certificate. In cross-examination in these proceedings the applicant denied this allegation. 3. The Tribunal is not able to make a finding that AB was younger than 17 years of age at the time of the alleged offence without testing the conflicting evidence. The DPP wrote to the respondent on 30 May 2016 stating; "our Office did not proceed with the matter as there was no reasonable prospect of a conviction due to difficulties in proving the age of the complainant at the time of the alleged offences (there were multiple copies of Birth Certificates and documents produced giving conflicting dates of birth)". The Tribunal does not have the benefit of DPP's own evidence and reasoning and there has been no further evidence to support the allegation that the birth certificate put forward by the applicant's solicitor was falsified. 4. AB was extremely vulnerable to the requests of the applicant. She was a young person still attending high school. The applicant was at least 29 years her senior. AB's father told the police the applicant was his best friend. During cross-examination, the applicant minimised the closeness of the relationship between himself and AB and their respective families. The Tribunal finds on the contrary, the families were very close. The applicant and AB had known each other for many years whilst living in Australia and living overseas. They were from the same country of birth and cultural group. AB called the applicant 'uncle'. The families lived close by and engaged and supported each other on a regular basis. The applicant took advantage of this close and trusting relationship by starting and continuing to have sexual relations with AB. 5. AB's vulnerability is the significant power imbalance between AB and the applicant caused by the age difference and the previous relationship of trust between AB and the applicant and their respective families. That is, given these factors AB may have felt more obligated to the applicant and compromised in resisting his requests, despite her own feelings, views and best interests. 6. AC states she was 17 years of age at the time of the alleged offence. AC was the older sister of AB. The applicant did not make submissions on the age of AC as the charges against him involving AC were dismissed. 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 between the victim, AB and the applicant is at least 29 years. As stated above AB is the daughter of a close friend of the applicant who knew each other in another country before both migrating to Australia. AB lived close by to the applicant and in the same street. The difference in age between the victim AC and the applicant is 29 years based on AC's statement to police. AC is the older sister of AB and had the same relationship as AB to the applicant. f) Whether the person knew, or could reasonably have known, that the victim was a child 1. The applicant was cross-examined about the age of AB. He believed at the time when he first had sex with AB that she was 16yo and over the age of consent. He stated he knew this as he had seen her birth certificate. When asked by counsel for the respondent to clarify his answer he stated at the time he had sex with AB he was not sure if she was 16 or 17 years of age. He also agreed that he never asked her how old she was at the time of when he first had sex with AB and he never asked how old she was on the later occasions they had sex. He agreed that he never made enquiries about AB's age before or during the period he had sex with her. He also agreed that AB attended high school and sometimes wore her school uniform. 2. On his own evidence during these proceedings the applicant knew that AB was either 16 or 17years of age at the time he first had sex with her and on the subsequent occasions he had sex with her. g) The person's present age 1. The present age of the applicant is 58 years of age. h) The seriousness of the person's total criminal record and the conduct of the person since the matters occurred. 1. The applicant does not have a criminal history. The only matters on his record are the charges involving AB and AC and they are recorded as 'withdrawn'. i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition 1. In evidence and in cross-examination the applicant described the sexual acts between himself and AB as consensual. In his application, he refers to 'having an affair' with AB. He believed he committed no legal wrong, only a moral wrong as he had betrayed his wife and children in having an 'affair' with AB. He offered no regrets or remorse for his actions and the possible impacts on AB. He stated in cross-examination, "I did not have time to think about AB". The only regret he expressed was that he had disappointed his family. He was asked in cross-examination whether he believed AB may have felt pressured to agree to his requests for sex but he denied that she felt pressured. He did not agree that AB and her family and his family were close. As stated above the Tribunal finds that AB was in a trusting and close relationship with the applicant and his family. 2. The applicant disagreed that he posed a risk to children. Other than his own written submissions he provided no evidence from other witnesses or experts such as a psychological assessment regarding his risk to the safety of children. He maintained in his written submission and throughout his evidence that he was having a sexual relationship with AB which was consensual and provided no insights on matters that may have impacted on AB's ability to consent. 3. In applicant's written submission filed on 14 February 2017 he is critical of the Children's Guardian and states, "Their motive is clear and the Tribunal should overturn it for lack of merit. This is because they presume I am a person that poses a risk to children or young persons, but not recognising the fact that I have a young family myself". He also states in his submission, "In my defence, whilst I was much older than the victim, yes it is true that I was expected to be much more mature in my conduct and expectations, but people make mistakes and I have never trivialize or mitigate the seriousness of what I did, but I have always maintained through interviews with police also in court that it was a consensual action on both sides because she was over the age of consent." 1. The applicant's written submissions and evidence demonstrate he has little or no understanding of the inappropriateness of having sexual relations with a child who is at least 29 years his junior. The Tribunal finds there is a high likelihood the applicant will repeat the same conduct. j) Any information given in, or in relation to, the application. 1. The applicant provided two written submissions and emails to the respondent in which he repeated that he had no case to answer as all the allegations and charges against him were either dismissed by the Court or withdrawn by the DPP. The sexual relationship with AB was consensual. The charges against him involving AB and AC were part of a conspiracy created by the father of AB and AC against him. He did not provide evidence of this conspiracy. 2. The applicant also provided a reference from the president of his local soccer club where the applicant has been a member for 20 years. The applicant had served on the committee for several years and participated in other activities such as refereeing junior and senior soccer and participating in club activities. The reference states the applicant has never had any complaints about his personal character or his behaviour during his association with the club. The respondent contacted the president by telephone and asked whether he was aware of a matter against the applicant that related to an issue with police. He indicated he was aware of the issue but not the details but stated "it had something to do with a young lady and that the applicant did not know her age, that she was part of the same tribe and that it was a friend". The Tribunal gives little weight to this reference as it is clear the person providing the reference was not aware of the nature or details of the complaints against the applicant and the admissions made by the applicant about the matter. k) Any other matters that the Children's Guardian considers necessary. 1. The police officer who investigated the allegations against the applicant involving AB and AC in 2005 emailed the respondent on 5 September 2016 about the applicant's application for a WCCC. He recommended to the respondent "in the strongest possible terms" that the applicant have "no interest or dealings with any child in any capacity whatsoever". Conclusion 1. Based on the information and findings set out above the Tribunal finds the applicant poses a risk to the safety of children. In summary, the applicant demonstrated no understanding of the inappropriateness of his sexual relationship with AB when he was 47 years old and he knew AB to be either 16 or 17 years of age and a child. The nature of the sexual relationship involved vaginal, digital and oral sex and occurred on several occasions over several months. At no time did the applicant ask AB what her age was or make any enquiries as to what her age was. The applicant displayed no remorse or regret for his actions other than the betrayal of his wife and children. He displayed no insight or understanding as to the vulnerability of AB and her capacity to give consent and the likely power imbalance between himself and AB. He has demonstrated that he is a person who poses a risk to the safety of children and the correct and preferable decision is to refuse his application for a WWCCC. 2. Having found the applicant poses a risk to the safety of children, there is no requirement for the Tribunal to address the further criteria set out in s.30(1A) of the Act. Orders 1. The Tribunal affirms the respondent's decision to refuse 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: 30 May 2017