BFX v Children's Guardian

NCAT Administrative and Equal Opportunity|2014-08-12

Introduction 1An order was made at the commencement of the hearing of the proceedings under section 64 Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. 2In January 1998 the applicant, BFX who was then aged 26 years and 5 months, committed a criminal offence against a woman, who was 28 years of age, which was sexual intercourse without her consent, an offence by reason of section 61I Crimes Act 1900, for which the maximum penalty is 14 years imprisonment. The applicant received a sentence in the District Court of NSW at Sydney on 26 February 1999 for 15 months periodic detention commencing 6 March 1999. 3The applicant's conviction is for an offence listed at clause 1 (1) (e) of Schedule 2 of the Child Protection (Working with Children) Act 2012 ("the Act"). The Children's Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence by reason of section 18 (1) (a) of the Act, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. 4The applicant filed an application dated 20 March 2014 and in that application seeks an enabling order under section 28 (1) of the Act declaring him not to be treated as a disqualified person for the purposes of the Act. 5The applicant has made this application, as stated in the application to this Tribunal, because he wishes to perform his work in his cleaning business outside of school hours but located at several schools in the area in which he lives. 6A person is not permitted to engage in "child-related work" unless they hold a clearance: see section 8 of the Act. The definition of "child-related work" includes a "worker engaged in work in a child-related role" as referred to in section 6 (1) (b) of the Act. The definition of "child-related role" is contained in section 6 (3) of the Act. Relevantly, the applicant is engaged in a child related role referred to in section 6 (3) (g) of the Act and prescribed by the regulations. This is because the Child Protection (Working with Children) Regulation 2013 provides: "16A School cleaners For the purposes of section 6 (3) of the Act, the role of a cleaner providing cleaning services at a school (a "school cleaner") is prescribed as a child-related role." 7Prior to his conviction of the offence under section 61I Crimes Act 1900, the applicant worked as a schoolteacher. Following his conviction for that offence he is now a person who will not be employed as a teacher by the public education authority. 8In order to provide cleaning work at schools the applicant is therefore required to have a clearance. 9The respondent opposes the order sought. 10The order, if granted, would enable the applicant to work in any child-related work or child-related role.

The Evidence 11The evidence before the Tribunal on the date of hearing consisted: (a)General Application Form filed 20 March 2014; (b)Handwritten letter from the applicant in response to a letter dated 11 April 2014 from the Crown Solicitor's Office (Exhibit A1); (c)Handwritten letter from the applicant to the solicitor with conduct of the matter at the Crown Solicitor's Office received 27 May 2014 (Exhibit A2); (d)Typescript of 2 pages comprising submissions/evidence from the applicant (Exhibit A3); (e)Bundle of documents filed on behalf of the respondent on 23 May 2014 (Exhibit R1); (f)Further Bundle of documents filed for the respondent on 7 July 2014 (Exhibit R2). 12There was no objection by either party to the receipt of this evidence by the Tribunal. 13The applicant was sworn and gave oral evidence adopting the truth of the contents of the General Application Form filed 20 March 2014 and the other exhibits upon which he relied. The applicant did not provide any further evidence. The applicant was cross examined by counsel for the respondent. 14The applicant accepted in his evidence, in cross examination and his oral submissions the contents of the 2 bundles of documents relied upon by the respondent and did not refute the truth of the contents of those documents. 15The applicant was given the opportunity to call further evidence but for reasons which became obvious during the course of cross examination and questions from the Tribunal, the applicant chose to rely upon the evidence before the Tribunal. Those reasons are referred to later in this judgment. In short, the applicant has not consulted and from his evidence it appears that he does not wish to consult, any professional who could provide expert opinion, other than those he saw in the course of his involvement in the criminal court proceedings some years ago. Those opinions are in evidence before the Tribunal. 16The applicant was made aware during the course of the hearing of the provisions of section 21 of the Act, which does not entitle a further application for a clearance until 5 years after the date of the refusal, if there is a refusal.

Relevant Provisions of the Act 17The object of the Act is to protect children by requiring those persons engaged in child-related work to be eligible to obtain clearances and effectively prohibiting disqualified persons without clearances or an enabling order from engaging in that work: see section 3 of the Act. 18The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration in the operation of the Act: see section 4 of the Act. There is no relevant definition of 'child abuse' contained in the Act. 19The Act, however, is part of a suite of legislation in NSW designed to protect children. The Children's Guardian who is responsible for oversight of the Act is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. There is an offence created in section 227 of the Children and Young Persons (Care and Protection) Act 1998 which creates a specific offence of child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units." 20There is a body of jurisprudence concerning the interpretation of the paramountcy provision in section 9 (1) of the Children and Young Persons (Care and Protection) Act 1998. That provision reads as follows: "This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount." 21This provision is in similar terms to the paramountcy provision in section 4 of the Act which is as follows: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 22The slight difference in emphasis between the two provisions is upon protecting children from "child abuse" as a particular matter referred to in the Act. It is apparent that both provisions have protection of children from any form of abuse as their lodestar. 23In all decisions made under the Children and Young Persons (Care and Protection) Act 1998 concerning a particular child, the safety, welfare and well-being of the child must be "the paramount consideration" and so it has been accepted as well settled that an order removing a child from the care of his or her family should be made if there is an "unacceptable risk" of harm to the child: see MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63, at [31]; M v M [1988] HCA 68; 166 CLR 69, at [25]. 24The concept of "unacceptable risk" of harm to a child is applied regularly in parenting and children's matters under the Family Law Act 1975(Cth). This follows from the decision of the High Court in M v M [1988] HCA 68; 166 CLR 69 and the fact that the best interests of children are the paramount consideration. The Family Law Act 1975(Cth) provides at section 60CA as follows: "Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration." 25Additionally, the Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in the 'primary considerations' in determining the child's best interests (by reason of subsection 60CC(2A) of the Family Law Act 1975 (Cth)) is referred to in section 60CC(1)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." 26The definition of "abuse" in section 4(1) of the Family Law Act 1975 (Cth) is as follows: ""abuse" , in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child." 27It can therefore be seen from a comparison of the various legislative provisions concerned with protecting children from harm, or unacceptable risk of harm, as their paramount concern, that the definition of abuse includes more than simply physical assaults. The identified concept of child abuse includes physical and sexual assaults; action which has or is likely to cause psychological or emotional harm which impairs or damages the child's emotional development; harming the physical development or health of the child. Psychological or emotional harm is recognised particularly in the Family Law Act 1975 (Cth) as capable of being caused by exposing or subjecting a child to family violence. 28The ordinary dictionary meaning of "child abuse" is "maltreatment of a child, esp. consisting of physical, emotional, or sexual abuse, neglect, or any combination of these" (Oxford English Dictionary (Second Edition)). "child abuse " in "child, n.". OED Online. June 2014. Oxford University Press. http://www.oed.com/view/Entry/31619?redirectedFrom=child+abuse (accessed August 03, 2014). 29The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987. 30The meaning of "child abuse" includes the matters referred to in the various statutory definitions quoted earlier, such a definition is one which promotes the protective purpose and objects underlying the Act.

Onus of proof 31It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children: section 28 (7) of the Act. The standard of proof applied is the civil standard, that is, the balance of probabilities.

Required Considerations 32The factors which are required to be considered when making a determination under section 28 of the Act are those contained in section 30 of the Act. Those matters are: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal." 33It is also specifically provided that an enabling order may not be made subject to conditions: section 28 (8) of the Act. 34An applicant is required to fully disclose any matters relevant to the application for an enabling order: section 28(5) of the Act. 35Information is provided to the Children's Guardian under section 31 of the Act, by various government agencies. That material was tendered and became Exhibit R1 and Exhibit R2. The applicant accepted the veracity of the material supplied and contained in those exhibits.

Other Legal Provisions 36The Act came into force on 15 June 2013. 37Because the applicant is a disqualified person under the Act the application for a Working with Children clearance must be refused by the Children's Guardian: section 18 of the Act. The only way in which the applicant can work in a child related role is by obtaining an enabling order. 38The 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: section 36 of the CAT Act. 39The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38, and 67 of the CAT Act. Procedural fairness and other aspects of natural justice apply to these proceedings where 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 Balancio (1987) 8 NSWLR 436. 40Since the rules of evidence do not apply in these proceedings the restrictions imposed by section 91 of the Evidence Act 1995 do not apply to the consideration of the circumstances of the offences which led to the convictions imposed upon the applicant: section 38 of the CAT Act. 41The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has practice and procedure prescribed by reason of Schedule 3 of the CAT Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the CAT Act.

The Issues 42The primary issue is whether the applicant has provided sufficient evidence to rebut the presumption that the applicant poses a risk to the safety of children: section 28 (7) of the Act. The totality of the evidence before the Tribunal may be considered in order to assess whether the presumption is rebutted. That is, the evidence provided by the respondent is also to be taken into account in determining this issue. 43It is accepted that the risk should not merely be any level of risk but must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39] ; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). 44The risk must also be linked "to the safety of children": section 28 (7) of the Act; Commission for Children and Young People v V (supra), at [42]. This decision does not make reference to the High Court decision in M v M [1988] HCA 68; 166 CLR 69, and the discussion there of "unacceptable risk" of harm. 45The second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill for the Act be read a second time in that House, may be considered in the interpretation of a provision of the Act to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision: section 34(2)(f) of the Interpretation Act 1987. 46The 2nd reading speech for the bill which became the Act, given by Mr Dominello, the Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contained in the following: "All adults can present a risk to children. The bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant." 47In the following paragraph of the speech the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk." 48These extracts from the 2nd reading speech assist in the interpretation of what is meant by "poses a risk to the safety of children" in section 28 (7) of the Act. It can be seen that the previous decisions identifying a real and appreciable risk, or unacceptable risk, and linking it to the safety of children, with respect to those judicial pronouncements, is appropriate in the interpretation of the provisions of the current Act. 49The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 50The applicant clearly holds the view that he does not pose a risk to the safety of children, that is to say, he conveyed the impression that he was adamant he would not reoffend by committing a sexual offence, and he repeatedly emphasised that the offence of which he was convicted did not have anything to do with children. Those are not the only matters to be considered.

Consideration of the Evidence 51The evidence is now considered under each of the subheadings of section 30 (1) of the Act. (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. 52The applicant agreed that the offence which led to his classification as a disqualified person under the Act was a serious offence. The offence is sexual intercourse without consent and the conviction occurred on 26 February 1999. The sentence was 15 months periodic detention commencing 6 March 1999. 53The applicant described the offence in the grounds of the application as involving "a group of young adults and a weekend of celebration and an indiscreet judgment, for which I have paid dearly." 54On 10 January 1998 the applicant was at a party with a large number of other guests. At a time just before dawn, after a night partying and consuming alcohol with the other party guests, the applicant performed cunnilingus upon the victim who had been asleep on the lounge chair. The victim awoke. The victim slapped him across the face and kicked him in the head area. It was alleged that the applicant admitted the offence to the victim's sister, when she asked the applicant what happened. The applicant pleaded guilty. The victim was a policewoman and the sister of a friend of the applicant. 55The applicant was employed as a teacher at the time. The education authority dismissed him from employment effective 6 September 2000. The applicant lost his appeal to GREAT. 56The applicant took responsibility for his behaviour but claimed he had limited memory of the incident. During one session with a psychologist on 18 June 1998 the applicant addressed the impact of his offending behaviour upon the victim. At the time it was considered by the psychologist that he demonstrated only a basic insight into the impact upon his victim. The applicant did not attend any further appointments with the psychologist. 57The presentence report referred to the applicant's excessive consumption of alcohol. The applicant identified the reduction of his alcohol consumption as one means of avoiding future difficulties. The applicant's failure to continue with psychological counselling was interpreted as avoidance of the issue. 58The applicant has also been convicted of drive with high range PCA on 1 March 2000. The applicant was convicted of driving with middle range PCA on 12 February 2007. This offence was detected because he crashed his car into a wall at 9:20am after drinking the previous night until 2am. The car rolled and he was taken to Hospital. 59The applicant was convicted of 'obtain financial advantage, knowingly obtain payment not payable', which he described as obtaining money by deception, on 15 August 2003. The applicant was ordered to pay reparation of $1943.40 and sentenced to 100 hours of community service. 60The applicant was also convicted of drive while disqualified from holding a licence, not stop at a stop line at a red light on 17 July 2000 for which he received community service of 200 hours for each matter. On 16 May 2007 he was convicted of drive while disqualified from holding a licence and received a community service order of 300 hours and a disqualification of his licence for 2 years commencing 12 February 2008. The applicant has attended Alcoholics Anonymous for 3 months as a condition of one of his bonds. 61The applicant submitted that although the 1998 sexual offence was a serious offence, it was at the lesser end of the scale: otherwise he believed he would have received a full custodial sentence. There are no remarks on sentence recorded by the sentencing Judge, provided in the material before the Tribunal. 62The applicant has included in his letter dated 11 May 2000 to the education authority pleading for reinstatement some comments regarding the sentencing of the applicant by Judge Wood. The applicant says that the sentencing judge "made it clear that my transgression fell at the very least serious end of the continuum in respect of the charge laid." This document was produced to the Children's Guardian pursuant to section 31 of the Act. (b) The period of time since those offences or matters occurred and the conduct of the person since they occurred 63The offence occurred on or about 10 January 1998. Therefore it occurred 16 years ago. (c) The age of the person at the time the offences or matters occurred 64At the time of the offence which means that the applicant is a disqualified person he was 26 years and 5 months of age. 65The applicant disclosed that he had been convicted of possession of equipment for self-administration of a prohibited drug. This occurred on 26 April 1991, but it appears from the criminal history that in fact he received a dismissal under section 556A of the Crimes Act (now repealed), which would be the equivalent of a dismissal without proceeding to conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999. The applicant was aged 19 at the time. 66The most recent criminal charge is the 16 May 2007, drive whilst disqualified offence when the applicant was aged 35. The middle range PCA offence occurred 12 February 2007 also when he was aged 35. (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 67At the time of the relevant offence the victim was 28 years of age. 68The victim was asleep when the applicant committed the offence. The victim had consumed a significant quantity of alcohol, as had the applicant, and the applicant took advantage 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 69The victim was approximately one year older than the applicant at the time of the offence. (f) Whether the person knew, or could reasonably have known, that the victim was a child 70The victim was not a child. (g) The person's present age 71The applicant is now aged 43. 72The applicant is now the father of three children who live with the applicant and his wife. The children are aged 4 years 7 months, 3 years, and the youngest child is 11 months old (although the date of birth is recorded by the applicant as 14/09/2014 that is clearly incorrect and it has been assumed the applicant meant 2013). The applicant and his wife also have the care of a child from his wife's prior relationship, currently aged 11 years and 8 months. None of the applicant's children have been the subject of reports to the Department of Family and Community Services. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 73The total criminal history of the applicant was provided to the Tribunal as part of Exhibit R1. 74The applicant has a number of offences relating to the consumption of alcohol including the offence of sexual intercourse without consent. 75The applicant acknowledges that the total criminal record is concerning and does not dispute any of the evidence before the Tribunal. 76When charged with the offences in his criminal history it appears that the applicant has acknowledged guilt and expressed appropriate remorse. Unfortunately, that remorse has not been effective to keep him from further transgressions. 77Since the sexual intercourse without consent conviction the applicant has continued to consume alcohol, and on occasion drive his motor vehicle contrary to the law while under the influence of alcohol or without a licence. Otherwise, it would appear the applicant has lived a productive life running his own business and commencing to raise a young family. Indeed, since he has started a family the applicant has not come to the notice of the authorities. (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 78The applicant asserts that there will be no repetition of the relevant offence. 79The respondent's counsel Mr Moore effectively cross examined the applicant concerning his continued alcohol consumption following the sexual intercourse without consent conviction. 80Since Dr Canaris expressed his view in the report contained in Exhibit R2 at page 123, the applicant has reoffended but it would appear the applicant has not completely modified his pattern of consumption of alcohol since 1998. This may explain why the applicant has committed further offences. 81It is assessed on the evidence available to the requisite standard of proof as not likely that the applicant will repeat the offence which he committed 16 years ago. The applicant however consumes alcohol at his local golf club once per week and drives home. While it would be preferable for the applicant not to drive after drinking alcohol, given his history, there is nothing to indicate a current concern for further offences. It may be advisable for him to seriously consider the effect it may have upon his young family if something untoward did occur. (j) Any information given by the applicant in, or in relation to, the application 82The applicant originally, in his general application form filed 20 March 2014, provided very little information. As a result of a request from the Crown Solicitor's Office by letter dated 11 April 2014, the applicant provided some further detail including disclosure of his criminal offences, additional to the one which led to him being classified a disqualified person. 83The applicant did not provide any expert evidence to support his view that he was unlikely to reoffend, that he did not pose a risk to the safety of children, or any other mitigating evidence from an expert. It became apparent during cross examination that he had seen a psychiatrist Dr Canaris, once, and a counsellor, but that he did not have any documentary reports to assist his case. The applicant was given the opportunity to obtain some further evidence but fatalistically decided that he would rely upon the evidence already before the Tribunal. 84The applicant, according to the evidence he gave, has not seen any psychologists or psychiatrists since those professionals whom he previously consulted as part of the forensic process. (k) Any other matters that the Children's Guardian considers necessary 85Counsel for the Children's Guardian submitted that the applicant showed little insight into the offence and relied upon the observations in the Probation and Parole Report. 86The applicant's history discloses a disregard for Court orders by driving whilst he was disqualified. 87Additionally, the report by Dr Canaris dated 8 February 1999 obtained from the applicant a history of drinking 10 schooners of a Friday and a Saturday night prior to the offence in 1998. The applicant disclosed that he would get drunk of the weekend and on those times tended to be "friendly, talkative, outgoing". Dr Canaris observed: "This is undoubtedly a hazardous level of drinking." 88The result of the applicant's heavy drinking was something which he discussed with Dr Canaris. The applicant told Dr Canaris that he had modified his drinking to the point where he consumed very modest amounts. Dr Canaris stated: "Now that he has modified his drinking, the likelihood of a repeat offence is exceedingly small." 89The applicant showed great deal of remorse when he saw Dr Canaris. This remorse appeared genuine to Dr Canaris. 90The submission of the respondent is well made concerning the applicant's continued consumption of alcohol. Despite attending AA as a condition of a bond, the applicant continues to consume alcohol. 91The evidence before the tribunal is that the applicant drinks 3 full strength schooners of beer over a period of 5 hours at his local golf club once per week. While it would be preferable for the applicant not to drive after drinking such amounts of alcohol, this is not the same hazardous level of alcohol consumption as the applicant previously imbibed.

Conclusions and orders 92In all the circumstances, and taking into account the considerations required under section 30 (1) of the Act, the applicant has discharged the onus upon him to the requisite standard of proof that he does not pose a real and appreciable risk to the safety of children. 93As was previously referred to, the jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 94The applicant considers that the refusal of an enabling order would be further punishment for an offence which he committed 16 years ago. If the Tribunal was not satisfied that he had rebutted the presumption, that would not have been intended to be further punishment of the applicant. That would merely have been implementing the legislation for the paramount concern of protection of children from child abuse. 95The sexual intercourse without consent offence for which the applicant received punishment 16 years ago was a serious offence. The fact that the applicant had no insight initially into the effect of that offence upon his victim is part of the problem facing the applicant today. The applicant has acknowledged the seriousness of the offence, but one suspects that the acknowledged seriousness relates partially to the effect upon him more than the effect of his actions upon the victim. Having said that, he showed genuine remorse for his actions which appeared to be totally out of character and were unplanned. 96The applicant has not committed a further offence of this nature nor has he been the subject of any further disciplinary proceedings or adverse findings in regard to his conduct other than the disclosed criminal offences for driving under the influence of alcohol, driving whilst disqualified, and an offence of dishonesty which he admitted and repaid the amount received. 97The applicant is now in a stable relationship with 3 young children of his own, including a 4th child for whom is he is responsible, that is the child his wife has brought with her into the relationship from a previous relationship. 98The applicant is a responsible businessman who employs a number of people in his cleaning business. The purpose of the enabling order will be to allow him to continue cleaning schools outside of school hours. It is possible that he will come into contact with schoolchildren as part of that process. 99The applicant asserted that his punishment was at the lesser end of the scale of punishments available, and there is no evidence to contradict that assertion. Having regard to the fact that the maximum punishment could have been 14 years imprisonment there is little difficulty accepting that version of the sentencing process. The presentence report and the report by Dr Canaris all point to genuine remorse on the part of the applicant. That is not to say that the seriousness of the offence is minimised by accepting that the offence was punished in the way it was. 100The behaviour of the applicant was beyond reasonable community norms but was unplanned, and was not part of ongoing or escalating events. The behaviour is not recent, but if repeated, would do significant harm. There has been a significant and sustained positive socialisation since the offending behaviour occurred and there has been no recurrence of concerning similar behaviour over a significant period. 101There has been a genuine and sustained effort to remedy the offending conduct. Remorse expressed by the applicant, on its own, has not been considered to be a significant factor that mitigates risk. In all of the circumstances, on the balance of probabilities it is assessed that the applicant will not pose a real and appreciable risk to the children with whom he will possibly come into contact. 102Accordingly the application for an enabling order will be granted. 103The following declaration and order will be made: (1)Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence sexual intercourse without consent under section 61I Crimes Act 1900, of which he was convicted on 26 February 1999. (2)Pursuant to subsection 28 (6) of the Child Protection (Working with Children) 2012, the Children's Guardian is to grant the applicant a working with children 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: 12 August 2014

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