BHV v Office of the Children's Guardian, Children's Guardian

reasons for decision 1The applicant is a disqualified person under subs 18(1) of the Child Protection (Working with Children) Act 2012 and has made an application for an order under subs 28(1) of the Act declaring that he is not to be treated as a disqualified person for the purpose of that Act. 2The order is known as an enabling order and if made has the effect of granting the disqualified person with a working with children check clearance to work in child related work as defined under s 6 of that Act. 3The offence which brings the applicant within subs 18(1) of the Act, is his conviction on 26 February 1982 of the offence of unlawful carnal knowledge of a girl under the age of 16 years contrary to the Queensland Criminal Code. This is a disqualifying offence falling within cl 1(1)(i) and (z) of Schedule 2 of the Act. The applicant pleaded guilty to the charge and was convicted in the District Court of Queensland and fined $250. The applicant has made this application as his wife has provided child day care services at their home and in order to do so every adult living at the home is required to have a working with children check clearance. 4There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application. The jurisdiction of the tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11, per Young JA at 61. That is the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children. 5The respondent neither opposes, or consents to the making of the order sought. 6In support of his application the applicant relied on an affidavit sworn by him on 19 June 2014. Attached to that affidavit is a statement from the applicant's wife and references from his stepdaughter and a number of parents who had placed their children with the applicant's wife's home day care service. 7The applicant has also given oral evidence today and was crossexamined by counsel for the respondent. The respondent tendered into evidence a small bundle of documents that were filed on 18 July 2014. Contained in the bundle were the applicant's criminal record and statements that were prepared in regard to his 1982 conviction. 8The Child Protection (Working with Children) Act came into force on 15 June 2013. Its object is to protect children by (a) not permitting certain persons to engage in child related work and (b) requiring persons engaged in child related work to have working with children check clearances. The Act provides that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is of paramount consideration in the operation of the Act, see section 4. This requirement equally applies to the application that is before the tribunal. 9Child related work is broadly defined in section 6 of the Act and the word children is defined in subsection 5(1) to mean persons under the age of 18 years. Subsection 8(1) of the Act prohibits a person from engaging in child related work unless: (a) the person holds the relevant Working with Children check clearance or (b) there is a current application by the person to the respondent for the relevant working with children check clearance. Subsection 9(1) of the Act contains a similar prohibition on an employee employing or continuing to employ a person in child related work who does not hold or have a current application for a relevant working with children check clearance. 10Section 13 of the Act makes provision for an application for a working with children clearances to be made to the respondent. The applicant made such an application on 12 February 2014. On 8 May 2014 the respondent determined to refuse the applicant's application for clearance as required under subsection 18(1) of the Act by reason of the applicant's disqualifying Schedule 2 offence. As I have already mentioned the applicant seeks an enabling order under subsection 28(1) so that his wife can resume her day care services from their home. Subsection 28(7) provides that where an application for an enabling order is made it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. That is, in this application the onus is on the applicant to prove on the balance of probabilities that he does not pose a risk to children. 11The meaning of the word 'risk' was considered by his Honour Young CJ in Equity in Commission for Children and Young People v V (2002) NSWSC 949 at [42], where 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 no 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.' 12The tribunal has construed the word 'risk' as it appears in the Child Protection (Working with Children) Act to have the same meaning. 13Subsection 28(8) provides that an enabling order cannot be made subject to conditions and subs 28(5) requires the applicant to fully disclose to the tribunal any matter relevant to his application. 14Subsection 30(1) of the Act sets out the matters the tribunal is required to take into account when determining an application for an enabling order. The first matter is the seriousness of the disqualifying offence. 15In his affidavit the applicant acknowledged that the offence with which he was charged was serious. He said he had never denied having committed the offence and said he had been charged because of the victim's age and there was no issue about consent. The offending conduct occurred on 6 November 1981 while the victim and the applicant were in attendance at a local fete. The victim was 13 years of age and a friend of the son of the applicant's then partner. In her statement the victim said that the applicant had approached her and asked her if she wanted sex. She said not really and after asking the victim where her parents and siblings were the applicant said "Come on let's go". She followed him and they had sex at a nearby building. 16Ten days later the police came to the applicant's place of work and asked him some questions about what had occurred. The applicant denied he had raped the victim. He said the victim lied and that he would not have touched her had he known her age. The applicant appears to have willingly gone with the police officers to the police station where he was charged with the disqualifying offence. On the way to the police station the applicant acknowledged he had sex with the victim. 17The respondent submits that the offence is serious. Although the applicant was a young man at the time, he was in a relationship where his partner had teenage boys and in a position of trust as loco parentis. His offending conduct was a serious breach of that trust as the victim was a friend of his partner's son. 18The respondent also submitted that the offending conduct included an element of exploitation. 19I agree with the respondent's submission. At the same time I accept the applicant's evidence that he has given today that he is deeply ashamed of what he had done and that he has felt this way since it occurred. He has always acknowledged that what he did was wrong and does not appear to have hidden the fact that he was convicted of this offence at any time. 20It is now 33 years since the contravening conduct occurred and the applicant has not been charged with any further offences. The applicant was 25 years of age at the time of the offence and the victim was 13. In his affidavit the applicant said the victim was 15 years of age. In his oral evidence the applicant acknowledged he was wrong. He said he realised this when he received the respondent's bundle of documents, these having been filed and served after he had filed and served his affidavit. 21When cross-examined by counsel for the respondent, the applicant readily acknowledged what was contained in the statements of the arresting police officers as being correct. He did not dispute what was contained in these statements reflected what he had said at the time. He said it was not until he saw these that he realised the exact details of his offending conduct. He said over the years he has not recollected the exact details of what had occurred. 22In my view the applicant's explanation should be accepted. He is clearly remorseful and ashamed of what he did. 23The difference in age between the applicant and the victim was 12 years and on the basis of the material filed by the respondent, the applicant was clearly aware of her age at that time. The applicant is 58 years of age today. He is married and he and his wife have a grown up daughter. The applicant and his wife have been married for 27 years. The applicant has also been a parent to his wife's children who are also now grown up. 24The applicant's wife has provided home childcare services for 21 years. There is no evidence of any complaint during that period about the behaviour or conduct of the applicant. As I have noted the 1982 conviction is the only offence for which the applicant has been convicted. There is no evidence of any other charge and the applicant denies that he has been engaged in any conduct of a similar nature. That is, his 1982 conviction is an isolated incident that occurred 32 years ago. 25In my view, on the material before the Tribunal, the likelihood of any repetition by the applicant of further offences of the kind he was convicted is very low. It is now a long time since those offences occurred. He is in a long and stable relationship. He is employed, he is now self-employed and it would appear that he has the support of his family. In this regard I note the reference from his stepdaughter. Furthermore there are no reports of any inappropriate conduct by the applicant other than what occurred in 1982. 26While I agree with the respondent that the nature of the offence of which the applicant was convicted 32 years ago was serious I am satisfied, having regard to all the material before the tribunal, that the applicant has discharged his onus as set out in subsection 28(7) of the Act. 27Accordingly I order: (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 of unlawful carnal knowledge of a girl under the age of 16 years of which he was convicted on 26 February 1982. (2)Pursuant to subsection 28(6) of the Child Protection Working with Children Act 2012 the respondent is to grant the applicant with a working with children check clearance.