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[2014] NSWCATAD 167
NCAT Administrative and Equal Opportunity
2014-08-13
Original judgment source is linked above.
Introduction 1The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 ('the Act') and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under section 6 of the Act. 2The applicant wishes to be permitted to be able to care for his grandchildren who had been placed in the care of him and his wife. 3Subsection 6(3)(c) of the Act provides that an authorised carer of children is required to have a working with children clearance. 4Subsection 10 (1) of the Act provides that an adult person who resides at the home of an authorised carer is required to have a working with children check clearance. 5Subsection 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children's Guardian must not grant a working with children clearance. 6Schedule 2 of the Act lists an offence under s.61(E) of the Crimes Act 1900 and also lists as disqualifying offences those committed under the law other than a law of New South Wales that, if committed in New South Wales would be an offence listed under the schedule. 7The following offences bring the applicant within subsection 18(1) of the Act: (1) Indecent assault on female under 16 years of age (s. 61E(2) Crimes Act 1900 NSW of which he was convicted at Cowra Court of Quarter Sessions on 25 October 1971. (2) Aggravated assault on a female child (s.344 Criminal Code Act 1899 Qld) of which he was convicted at the Mackay Magistrates Court on 1 April 1975 (3) Aggravated assault (s.344 Criminal Code Act 1899 Qld) of which he was convicted on 9 December 1975. 8The offences of aggravated assault on a female child and aggravated assault, (as described in the Police Facts in relation to that matter), would be offences that if, committed in New South Wales would be offences listed under the Schedule to the Act. 9The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 21 January 2014. 10The application seeking an enabling order is dated 22 April 2014 and the applicant states that the reason for the late application was the unavailability of legal aid. There was no objection to the late application and the Tribunal decided to hear the matter despite the late application. 11On 19 June 2014 the Tribunal refused an application by the applicant seeking a stay of the operation of the determination of the Children's Guardian refusing a working with children clearance and issued directions regarding the filing of documents. 12There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application. 13The hearing on 13 August 2014 was conducted in person at the Tamworth Court House but Dr Christopher Lennings participated by telephone with consent. 14Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about 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.
RELEVANT PROVISIONS OF THE ACT 15The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearances. 16Section 4 of the Act provides that 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. 17For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order. 18Subsection 28(5) provides that the applicant must fully disclose to the Tribunal any matters relevant to the applicant. 19Subsection 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 the 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. 20The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children." 21The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the (now repealed) Commission for Children and Young People Act 1998 to have the same meaning. The Tribunal is of the view that the same meaning applies to the word "risk", as it appears in the current Act. 22Subsection 30(1) of the Child Protection (Working with Children) Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application: (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.
Evidence 23The applicant tendered into evidence without objection a bundle of documents comprising:
The seriousness of the offences with respect to which the person is a disqualified person. 30The NSW Police Incident Report regarding the offence of Indecent assault on female under 16 years of age of which BJD was convicted at Cowra Court of Quarter Sessions on 25 October 1971 states that BJD was living in house with the child victim, her mother, her mother's brother, her mother's partner and an aunt of the victim. The sleeping arrangements were that the victim's mother and her partner slept in a double bed. The victim slept on a lounge chair and BJD and the other male slept in the bottom of a bunk bed and the aunt in the top bunk. During the evening of 27 August 1971 when the other occupants of the house were asleep, BJD removed the victim's pyjamas and panties while she was asleep and put his finger in her vagina. She awoke and told her mother. 31The Crimtrac record tendered by the respondent indicates that on 25 October 1971 at Cowra Quarter sessions, BJD was sentenced to 8 months hard labour in respect of this offence. 32In his affidavit dated 4 August 2014, BJD makes statements to the following effect regarding this offence:
The period of time since those offences or matters occurred and the conduct of the person since they occurred. 47The first of the index offences occurred in 1971 and the last in 1975. Therefore the most recent index offence was some 39 years ago. 48The applicant's solicitor submitted that between 1969 and 1975 he was drinking alcohol to excess and the offences are restricted to that period of time. 49The respondent's counsel submitted that despite the time that has elapsed since the offences, there are allegations that have been made of misconduct since that time and these should be taken into account in assessing the significance of the time that has elapsed since the index offences. This issue is dealt with below. 50Counsel for the respondent submits that the Tribunal should take into account a comment recorded in Family and Community Services tendered by the respondent. That comment is to the effect that on 19 February 2009 a caller had contacted that agency and said that the mother of Mrs BJD's children had disclosed "on many occasions in the past that (first name of BJD) had sexually abused her when she was a child. Caller stated that each time she spoke about this issue the mother would get emotionally distressed so caller believed the mother to be genuine. Caller has concerns about the children frequenting the home where (BJD and Mrs BJD) reside". 51Counsel for the respondent submits that this comment refers to statements said to be made by the daughter of Mrs BJD that BJD has assaulted her (BJD's daughter) when she was a child. 52The applicant's solicitor did not object to the admission of this material, but submitted that it should be given limited weight as hearsay. He also submitted that the comments were made in the context of Family Court matters. The Tribunal notes that the notation made on 19 February 2014 includes that "caller is proceeding with FLC orders ...". 53In his affidavit dated 4 August 2014 BJD makes statements to the following effect about his relationship with the daughter of BJD:
The age of the person at the time the offences or matters occurred 62BJD was 28 years old at the time of the first index offence and he was 32 years old at the time of the last index offence.
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. 63Counsel for the respondent submitted that the age of the victim of the first offence was less than 10 years though the offence of which BJD was convicted was that of "Indecent assault on female under 16 years of age". As noted above, on the Police Incident Report regarding this offence the age of the victim appears to have been changed from "under 16 years of age" to "under 10 years of age". 64Under cross-examination the applicant said that the police said the victim was 10 years of age. The applicant did not suggest that the reference to 10 years of age was inaccurate. 65Based on the available material the Tribunal is satisfied that the actual age of the victim is not ascertainable. However it is clear that she was less than 16 years of age. 66The victim of the second index offence was 5 years old. 67The victim of the third index offence was 23 years old. 68The Tribunal is of the view that due to their age, the victims of the first two index offences were vulnerable.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person 69The applicant was 28 years old at the time of the first index offence. The difference in age between the applicant and the victim of the first offence is, on the evidence before the Tribunal, not certain. However, the Tribunal is satisfied that the victim was less than 16 years old. Taking a scenario most favourable to the applicant (i.e. that the victim was 15 years old) the age difference was 13 years, and in the view of the Tribunal is significant. 70The applicant was 32 years old at the time of the second offence and the victim was 5 years old. The Tribunal is satisfied that the age difference is significant. 71Counsel for the respondent submitted that the age difference between the victims and the offender is significant. On the assumption that the victim of the first offence was 10 years old, he submitted that it is significant that the victims of the first two offences were not adolescent. 72The difference in age between the offender and the third victim was 9 years.
Whether the person knew, or could reasonably have known, that the victim was a child. 73Under cross-examination the applicant said that he does not know the age of the first victim but that the police said she was 10 years old. He did not challenge that statement or suggest that it was inaccurate and the solicitor for the applicant did not challenge that statement. Under cross -examination the applicant accepted that the age of the second victim was five years old. 74In his oral and affidavit evidence the applicant does not seek to suggest that he did not know that the victims of the first two index offences were children. 75 In his final submissions the solicitor for the applicant noted that the applicant said that he knew that the victims were children and knew that he had done the wrong thing. 76Taking these matters into account, the Tribunal accepts that the applicant knew that the victims of the first two offences were children. 77The victim of the third index offence was not a child.
The person's present age 78BJD is now 71 years old.
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 79In addition to the index offences, BJD has been found guilty of two counts of carnal knowledge as indicated in the Crimtrac record tendered by the respondent:
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 99In his report dated 28 July 2014 Dr Lennings states that he interviewed BJD for one hour and twenty minutes and had a further brief telephone conversation with him. He states that BJD appeared "open and cooperative" but had a poor memory for events that took place some 40 years earlier. He states that BJD's poor memory is affected by the fact that he appears to have been heavily inebriated at the time of the offences as well as the fact of the long period of time that has elapsed since the offences. 100Dr Lennings provides the following information about the interview:
Any information given by the applicant in, or in relation to, the application, 122In his affidavit BJD states that:
Any other matters that the Children's Guardian considers necessary. 128The Children's Guardian opposed the application and stressed the applicant bears the burden of proof in relation to the application. 129Counsel for the Children's Guardian submitted that despite Dr Lennings' evidence regarding the scoring of the Static 99R there remains a question about the validity of accepting the relationship between BJD and his wife as one that should be accepted under the scoring code. 130Counsel for the Children's Guardian submitted that if this item was scored with a "1" instead of a "0" then the overall Static 99R score for BJD would be "4" and not "3" as had been agreed to by Dr Lennings under cross examination. On the basis of other information Dr Lennings had moved the risk category to which BJD belongs from that of "moderate low", as was appropriate for a score of "2" or "3" to that of "low" - which is the category for scores of "0" to "1". Counsel submitted that if the scoring of the relationship item properly took into account that Mrs BJD was a child victim of BJD, then his score would have been "4" placing him in the "moderately high" category. He submitted that as any downgrading of a risk category can only move a person one category, then the override would only reduce the risk of BJD to moderate-low. 131In relation to this submission, the applicant's solicitor stressed that Dr Lennings is an experienced and qualified person to administer the Static 99 and that he was satisfied that whilst the score obtained by BJD should increase from "2" to "3" he was clear that the other matters raised by the respondent did not affect the score. 132The Tribunal accepts the submission of the applicant on this matter. The issue was discussed at some length during the hearing. The Tribunal is satisfied that Dr Lennings understood the issues raised by counsel for the respondent and nonetheless was confident about the score he had allocated to BJD. 133Counsel for the Children's Guardian submitted that Dr Lennings had spent only one hour and twenty minutes in an interview with the applicant and that other matters must be considered in addition to his assessment. 134Counsel for the respondent further submitted that:
Conclusions and orders 135The Tribunal notes that in reaching its decision the primary consideration is the safety, welfare and well being of children, not the punishment of BJD. 136The factors that the Tribunal must take into account as listed in subsection 30(1) of the Child Protection (Working with Children) Act 2012 are not weighted and the Tribunal has taken each of them into account. 137There are a number of considerations that would suggest that the Tribunal should grant the applicant the order he seeks. These are, in summary:
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: 08 October 2014
BJD
Office of the Children's Guardian