BJE v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-03-19

Reasons for decision

The applicant, BJE, seeks review of a decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (the Child Protection Act).
The applicant is 50 years of age and the sole parent of his four children aged 19, 16, 13 and 11. He has previously been actively involved in the school and sporting activities of his children. He has done so a volunteer. Not long after the Child Protection Act came into force, on 8 July 2013, the applicant applied to the respondent for a working with children check clearance, as the volunteer work he was doing fell within the description of 'child-related work' under s 6 of that Act and for which he required a clearance.
On 19 September 2013, the respondent determined to impose an interim bar on the applicant pending the determination of his application (see s 17 of the Child Protection Act). In notifying the applicant of the interim bar, which barred him from working in paid or voluntary roles with children, the respondent said the bar had been issued as his "relevant records indicate serious risk to children.'" The respondent then referred to the following matters as having triggered the need for a risk assessment (see s 14 and Schedule 1 of the Child Protection Act) and the imposing of an interim bar: 26/05/2006 Indecent Assault Where Victim Under the Age of 10 Years x 2 28/11/1997 Assault (multiple counts)
In regard to the first matter, on 25 October 2004, the applicant was charged with four counts of having indecently assaulted the seven year old daughter of his then partner. On 6 March 2005, he was convicted in the Local Court of two counts of indecent assault, the other charges having been withdrawn some time in late 2004. The applicant appealed these convictions and on 26 May 2005, the District Court quashed both convictions.

The Role of the Tribunal

The Tribunal's jurisdiction to hear and determine an application to review a decision of the respondent to refuse an application for a working with children check clearance arises under s 27 of the Child Protection Act, s 30 of the Civil and Administrative Tribunal Act 2013 and ss 9 and 55 of the Administrative Decision Review Act 1997.
Subs 27(1) of the Child Protection Act provides that an application for review must be made within 28 days of being notified of the respondent's decision. There is no dispute that the applicant failed to lodge this application within the prescribed time. However, by consent, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013, I made an order extending the time within which the applicant was to lodge this application to 10 June 2014.
Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subs 63(1) of the Administrative Decisions Review Act 1997.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
In determining this application, the Tribunal has power to make the following orders: 63 Determination of administrative review by Tribunal (1) … (2) … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Child Protection Act

The objects of the Child Protection Act are as follows: "3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
S 4 of that Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse".
The word "children" is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word "child" has the same meaning.
The Child Protection 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 (see subs 8(1)). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
The term "child-related work" is widely defined in s 6 of the Child Protection Act. It is not disputed that the volunteer work the applicant seeks to undertake is child related work.
S 18 of the Child Protection Act sets out how the respondent is to determine an application for a clearance.
Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Child Protection Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subs 18(1) provides that this person is a "disqualified person" and the respondent must refuse that person's application for a clearance. The applicant is not a "disqualified person" and the subs did not apply to his application for a clearance.
If an applicant for a clearance is not a "disqualified person", subs 18(2) and (3) of the Child Protection Act provides how all other applications are to be determined. These subs provide: 18 Determination of applications for clearances (1) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
Persons who are subject to a risk assessment are those to whom any of the matters specified in Schedule 1 of the Child Protection Act apply: see s14 of the Act.
The relevant provision relied on by the respondent in regard to the applicant's application was clause 1(1)(b) and 1(6) of Schedule 1 of that Act. These subclauses are in the following terms: 1 Offences (1) Proceedings have been commenced against a person: (a) … (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person. (2) … … (6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.
Subs 15(4) of the Child Protection Act sets out the matters the respondent may consider when undertaking a risk assessment.
As I have noted, having undertaken a risk assessment under s 15, the respondent determined to refuse the applicant's application for a clearance under subs 18(2) and he has made this application seeking review of that determination, as he was entitled to do under subs 27(1) of the Child Protection Act.
Subs 27(4) of the Child Protection Act, provides that an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
Subs 30(1) of the Child Protection Act sets out the factors the Tribunal must consider in determining a review application. These 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) …
The abovementioned factors are similar to those the respondent may consider when undertaking a risk assessment under s15 of the Act (see subs 15(4)). Evidence before the Tribunal
The respondent tendered into evidence four bundles of documents, which included a copy of the respondent's risk assessment report prepared for the purpose of determining the applicant's application. Also included in the bundles of documents were copies of material provided, or produced by other persons in response to inquiries the respondent had made about the applicant. This included the transcript of two days of hearing in the Local Court in regard to the 1994 assault charges, the NSW Police interview with the victim of the 2004 charges and the written submissions of the applicant and the Director of Public Prosecutions in regard to the appeal from the conviction of those charges, the applicant's Apprehended Domestic Violence Order history, copies of complaints made about the applicant's behaviour made by parents of girls who were in the same Soccer Team as the applicant's daughter.
At the hearing, the respondent called the mother of a child in the same Soccer Team as the applicant's daughter, Ms A, to give oral evidence about photographs she had taken, in June 2013, of her daughter's Facebook page. The page in question contained photographs of the child (child B) and comments the applicant had posted in regard to the photographs, together with copies of conversations between the applicant and child B.
The applicant objected to Ms A being called to give oral evidence as no written statement had been filed and served prior to the hearing. The respondent pressed her right to call Ms A to give evidence and in this regard noted that the material filed included copies of the photographs, the posted comments and copies of the conversations. These were all matters the applicant had knowledge of and the purpose of Ms A's evidence was to give the Tribunal a context in which they had been provided to police. I over ruled the applicant's objection and allowed the respondent to call Ms A to give oral evidence. However, I also indicated to the applicant that if he needed extra time before he cross-examined Ms A, I would allow him that extra time. The respondent did not oppose this course. At the conclusion of Ms A's evidence and following a break to consider whether he needed more time to be able to cross-examine Ms A, the applicant said he did not need any extra time and he proceeded to cross-examine her.
The applicant relied on the following material: 1. an affidavit sworn by him on 22 September 2014. Attached to the affidavit was a risk assessment report by Dr John H Baron, Clinical and Forensic Psychologist, dated 19 February 2014; 2. an affidavit sworn, on 22 September 2015, by Mr M, the President and Head Coach of the Local Football Club of which the applicant is a member and volunteer, 3. a report of Dr Augustus Pusic, Consultant Psychiatrist, dated 11 November 2014, and 4. a bundle of documents that included copies of Facebook comment exchanges between the applicant and child B on 4 October 2014, copies of courses the applicant has enrolled in during 2008, 2009 and 2014, a reference in regard to the applicant's membership of the NSW Branch of the Australian Labour Party and a copy of the establishment of the Local Football Club of which the applicant is a member and volunteer.
At the hearing the applicant gave oral evidence and was cross-examined by counsel for the respondent. Mr M also gave short oral evidence and was cross-examined by counsel for the respondent.
Prior to the hearing, the respondent informed the applicant that Dr Baron and Dr Pusic should be made available for cross-examination. There was some disagreement between the parties as to whether such a request was made, but the applicant did say that Dr Baron would be available on the second day of hearing.
On the second day of hearing I telephoned Dr Pusic, however he was not available. Nor was Dr Baron available when called. The hearing was adjourned for a short period so that the applicant could make contact with Dr Baron's clinic. After having made further enquiries the applicant informed the Tribunal he had been advised by Dr Baron's receptionist that there was no record of Dr Baron being required for cross-examination that day.
The respondent did not object to the reports of Dr Baron and Dr Pusic being tendered into evidence, subject to the usual caution that the opinions expressed therein had not been tested by cross-examination.
On 24 March 2015, Dr Baron wrote to the Tribunal stating that on 19 March 2015, at about 12:15pm, the applicant had left a message on his answering machine to say that he was at the Tribunal and requesting that he, Dr Baron, contact the Tribunal. Dr Baron said the applicant indicated in his message that he had informed him he should be available for the hearing before the Tribunal that day. Dr Baron said the last contact he had with the applicant was when he called in December 2014, when he informed Dr Baron that the respondent had refused his application for a working with children check clearance and that he was intending to appeal this decision. Dr Baron said he understood the applicant to have had an expectation that he would be required for cross-examination on the report he had prepared. Dr Baron said that at the time he was contacted by the applicant, he understood no hearing had been set. He said, the applicant did not inform him subsequently that he was required on 19 March 2015.
I have noted the content of Dr Baron's letter only for completeness and I have drawn no adverse inferences against the applicant in regard to Dr Baron's unavailability on the day of hearing.

Consideration

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 Child Protection Act is not to impose any punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.
The 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 [42], 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 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.""
These remarks have been accepted to equally apply to the word 'risk' as it appears in the 2012 Child Protection Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Children's Guardian [2014] NSWSC 523 (BKE) at [26].
At the commencement of the hearing counsel for the respondent identified the following three matters which were of principal concern about the applicant's behaviour towards children: 1. the 2004 trigger event and the long chronology of complaints, between 2009 to 2013, about the applicant's "stalking" behaviour towards young women and girls; 2. the lack of candour by the applicant in disclosing his prohibited status - i.e. in 2013, when an interim order was in place, the applicant is alleged to have promoted himself as a point of contact for child related work; 3. the applicant's history of mental health issues and his non-compliance with taking his prescribed medication.
The applicant, on the other hand denied each of these matters.
I note, in his written submissions filed subsequent to the hearing, counsel for the respondent did not press concerns about the applicant's alleged lack of candour or his alleged non-compliance with taking his prescribed medication. In my view, he did so appropriately in light of the explanations provided by the applicant and Mr M and the report of Dr Pusic.
However, counsel for the respondent did press the circumstances surrounding the complaints that had been made against the applicant and those surrounding the 2004 charges of indecency.
Before I deal with these matters in the context of the subs 30(1) factors, I note the remarks of His Honour Justice Beech-Jones, in BKE concerning the task of assessing risk under the child Protection Act. At [27], His Honour noted the assessment of risk under the Child Protection Act was not limited to the circumstances for which an applicant sought a clearance and whether he/she posed a "risk to the safety of children" in those circumstances. Instead, an applicant was "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
His Honour went on to consider the approach that should be taken in a risk assessment where allegations of an applicant having sexually abuse a child had been made, but no conviction had been recorded. At [29], His Honour firstly noted that while the Tribunal was not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J (i.e. warning against the use of "inexact proofs" in the context of making serious findings of fact).
At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], having cited the remarks of the High Court in M v M (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), His Honour said, subject to two matters and the caveat about the applicability of Briginshaw, the reasoning in M v M was applicable to fact finding and the process of risk assessment that the Tribunal undertakes. The two matters referred to by His Honour were (a) that the Act was not concerned with "unacceptable risks" but "real and appreciable risks", and (b) in cases such as BKE, a disqualified person under subs 18(1) of the Act, the onus was on the applicant to rebut the presumption that he did pose a real and appreciable risk to the safety of children. The latter matter does not apply in this application, as the applicant is not a disqualified person and there is no statutory presumption that he poses a risk to the safety of children. However, the Tribunal must nevertheless make an assessment of risk to the safety of children having regard to the material before it and at [33] His Honour summerised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
Set out below is the evidence and my findings in regard to these matters and other matters raised during the course of the hearing in so far as they are relevant to the factors set out in subs 30(1) of the 2012 Act.

Seriousness of the matters that caused the refusal of the applicant's application for a clearance

As I have noted, the matters that caused the respondent to refuse the applicant's application for a clearance were the trigger offences of which the applicant was charged in 2004, a number of complaints made by parents of girls in the soccer club of which the applicant's daughter was a member and a complaint by a young woman who the applicant befriended through an internet site in 2009.
While the applicant has not been found guilty of any offence in regard to these matters, in my view, the circumstances giving rise to the charges and complaints are nevertheless relevant to the issue as to whether there exists a risk to the safety of children if the applicant were to be granted a working with children check clearance.
The circumstances giving rise to the 2004 trigger charges was a complaint by the applicant's partner at that time concerning her 7 year-old daughter - the applicant and his partner had been in a relationship for 2 years. Some time prior to mid September 2004 the applicant's partner and her two children (the 7 year-old daughter and an older son) moved from Sydney to a country town within NSW. The applicant remained in Sydney and in mid September 2004 the applicant and his three daughters visited his partner and her children.
On the evening of 28 September 2004, the applicant's partner went out for the evening with her mother and some female friends and the applicant was left to look after the children, including his partner's children.
In her statement, the applicant's partner said that when she returned home, at about 11.15 pm, the applicant was in the lounge room watching television. She said, the applicant told her that her daughter (the victim) had been sleepwalking and he had picked her up and put her back into bed. The applicant's partner said that this was strange, as her daughter did not sleepwalk.
The applicant's partner said that the following morning, after the applicant and his children had parted to return to Sydney, her daughter told her that the applicant had carried her to bed the previous evening and that he had touched her on the bottom and the vaginal area. The applicant's partner immediately reported the incident to police. On the same day, a paediatrician assessed the victim and found no signs of any physical injuries.
Police spoke to the applicant on 25 October 2004. He willingly participated in a record of interview. During his record of interview the applicant denied having inappropriately touched the victim. However, he did acknowledge that he had picked up the victim and put her back into bed and that his partner had rung him after he left to tell him what her daughter had said. I note the applicant's partner also told him he was never to come near them again.
Police charged the applicant with a number of offences of having indecently assaulted the 7 year-old daughter of his then partner.
As noted above, on 6 March 2006, following a defended hearing in the Local Court, the applicant was convicted of two charges of indecent assault.
On 26 May 2006, the applicant successfully appealed his conviction in the District Court.
In his affidavit, the applicant said that after he was charged with the offences in October 2004, he received notification that he would be indicted on those charges. He said that at a subsequent Court appearance on the charges, the Director of Public Prosecutions refused to prosecute the matter. He went on to say that following a discussion between the solicitor for the Director of Public Prosecutions and the informant (the charging police officer), the informant decided that if the Director of Public Prosecution was not to prosecute then the police would do so in the Local Court.
I accept there may have been discussions between the office of the NSW Director of Prosecution and the NSW Police Service as to the most appropriate forum in which the charges should be prosecuted (i.e. summarily before the Local Court, or on indictment before a jury in the District Court). However, I am not persuaded on the material before the Tribunal that the NSW Director of Prosecution refused to prosecute in the sense inferred by the applicant. In this regard I note the NSW Director of Prosecution appeared for the Crown in the applicant's appeal against conviction.
The written submissions of the applicant for his appeal centred on the victim being an unreliable witness due to a number of alleged fundamental misstatements, by Detective Senior Constable McKechnie during her interview with the victim following the alleged incident.
The transcript of the District Court's reasoning in quashing the convictions was not before the Tribunal. Nevertheless, it is clear that the findings of the Magistrate were quashed. Hence there has been no finding of guilt, to the criminal standard of proof (beyond reasonable doubt), against the applicant of the acts and omissions the subject of the indecency charges laid against him.
Nor, in my view, is there sufficient material before the Tribunal to make a finding that the applicant had inappropriately touched the victim as alleged.
The applicant does not otherwise dispute the events of that evening and has not really explained why a complaint would have been made. In his affidavit, the applicant said he did not know why his partner's daughter would "say something like that at the time." He said they all had a good relationship "with everyone apart from some jealousy of two of my girls in relation to [name of the applicant's partner]'s children."
The circumstances giving rise to the 2009 complaint relate to the applicant having befriended a young 19 year-old woman, Ms C, he had met through a social networking site. They initially maintained contact by email and text messaging for about a month. They then attended the races and had dinner together. After several further face-to-face meetings between Ms C and the applicant, in March 2009, Ms C agreed to move into the applicant's home, as she was attending a local university to study. Some three weeks after she had moved into the applicant's home, Ms C left the applicant's home. She went to the police to seek their assistance in getting her things from the applicant's home.
On 9 October 2009, on the application of Senior Constable Kelly Patten, the Local Court made an interim Apprehended Domestic Violence Order (AVO), against the applicant, for the protection of Ms C.
In her statement to police, in support of the application for the AVO, Ms C said that during the time she resided with the applicant he became very controlling and obsessive towards her and she became more fearful of him because of this behaviour. She said because of this behaviour she "fled" the applicant's home and attended the local police station and the police assisted her in removing her property from the applicant's home. She said the applicant had told her he was a lawyer, a doctor, a federal agent and a professor.
Ms C said that after leaving the applicant's home, he persisted in contacting her and her mother by email. She said she had on several occasions requested the applicant cease sending emails, which he did not do. She said that even though she had shut down her email accounts and opened new ones, on a number of occasions the applicant was able to locate the new accounts and sending emails.
She also said that at the end of September 2009 she became fearful of the applicant tampering with her Facebook account it. Ms C went on to assert that in early October 2009, she received a phone call from a friend advising her there were semi-naked shots of her posted on her Facebook account. She said she viewed these photos and attempted to log in to her homepage to remove them. However, the password and username had been changed preventing her accessing the account. Ms C said she believed the applicant was responsible for the changes.
The AVO application of the police sought orders to prevent the applicant from assaulting, molesting, harassing, threatening, intimidating or stalking Ms C and any person with whom Ms C had or has a domestic relationship.
On 1 March 2010, the Local Court made final AVO orders against the applicant. The orders were to be in force for a period of 5 years. The terms of the order remained the same as those of the Interim order with some additional prohibitions in regard to the applicant contacting Ms C at places where she attended for educational purposes.
On the same day, the applicant had made an application seeking the annulment of the final AVO orders. That application was refused on 8 April 2010. The applicant appealed this refusal to the District Court. On 3 August 2010, by consent, the District Court allowed the appeal and made orders setting aside the AVO orders made on 1 March and the order refusing the applicant's annulment application. In substitution of these orders, the District Court made an order that the police application for the AVO against the applicant be remitted to the Local Court for mention in September 2010 and that an Interim AVO, in the terms of the Final AVO were to continue in operation, subject to an application to vary those orders.
In his affidavit the applicant acknowledged that during 2004 and 2008 he had a number of AVOs made against him. He said that these were made, "…due to various situations at the time I agree to without admissions. At no time was there any suggestion of violence against or behaviour of. I also have been charged with various offences from stealing my own mail… "
During cross-examination, the applicant disagreed that Ms C was a person who had sought an AVO against him. He said an officer of the NSW Police Service had initiated the AVO. While this was correct, they were sought for the protection of Ms C and not the police officer. The applicant denied he represented to Ms C that he was a lawyer, doctor or any of the other professions as asserted. He also denied he had any sexual interest in Ms C. He explained that while he had basic computer skills, he had not accessed Ms C's Hotmail account or her Facebook account. He agreed that he informed Dr Baron that he did not dispute the interim AVO. He explained in his oral evidence that he did not defend the interim AVO application because he felt it was not worth it. That is, he acknowledged he did not appear at the hearing of the Interim AVO application and therefore he did not challenge it. The applicant also acknowledged that almost one and a half years later, on 17 February 2011, he consented, without admission, to the making of a final AVO order. In response to a question as to why it took him so long, he said Ms C had admitted that she had hacked into his computer and downloaded a number of his documents and photos. In his written submissions, the applicant said that, on advice from his solicitor, he had commenced proceedings against Ms C and it was in this context his solicitor wrote to her and her mother.
Although there has been no finding of the applicant having stalked Ms C, or otherwise acted unlawfully, in my view the circumstances in which the applicant came to know Ms C and what happened subsequently is of concern as the applicant does not appear to have questioned the appropriateness of developing a relationship, even if not sexual in nature, with young woman who might have been four to five years older than his oldest child. Nor does he appear to have questioned the appropriateness of seeking to maintain contact with her when she had sought police assistance to remove her property from his home.
The circumstances giving rise to the May 2012 complaint were complaints from parents of girls in the Under 14 Soccer Team of which the applicant's daughter was a member - the complaint is in an email the Coach of the Soccer Team sent, in May 2012, to the President of the girl's Local Soccer Club. In the email the Coach said he had received reports from parents about the applicant's behaviour towards the girls in his Team. He said the mother of one of the girls had advised that she found it quite strange that a grown man (i.e. the applicant) would "friend request" 12 and 13 year-old girls on their Facebook page. The mother said she was upset when her daughters told her that the applicant was sending private messages about how beautiful a particular team member was. The Coach said he had asked the Team Manager, a friend of the applicant, to politely advise the applicant not to try and "friend request" the girls as it was a little inappropriate.
In another email, sent in August 2012, by the wife of the Coach to another parent of a girl in the Soccer Team reference was made to the applicant having been seen, a few days earlier at the end of a soccer match, approaching one of the girls in the team and trying to show her a copy of her own private Facebook "wall". The email said that the parent of one of the girls in the Team intervened and told the applicant that he should not be talking to the girl without a parent present. The email went on to say that later that evening, at the local Woolworths store, an altercation arose between the applicant and the Coach during which the applicant is alleged to have said that the girl's Facebook page he had was a copy which was given to him by a friend who was a DOCS worker. He was also alleged to have said that the child's mother was being investigated by DOCS.
In his oral evidence the applicant did not deny that he had made a number of "friend" requests to the girls in the Under 14's Soccer Team, of which his daughter was a member. He asserted this was encouraged and permitted by the Coach as a way of communicating between the girls and their respective parents about the team, their training, match schedules and match results. As I understood the evidence, the Soccer Club had a Facebook account and the girls communicated through this account via their own Facebook accounts.
The applicant did not dispute that he had sought to Facebook "friend" the girls on the Under 14's Soccer Team and continued to argue that his requests and contact through the girl's Facebook pages was appropriate and encouraged. The abovementioned emails of the Coach and his wife would suggest otherwise.
In my view, the applicant's response to these complaints also shows that he has little understanding about his behaviour and why it was of concern to the parents of the girls. That is, he has again not questioned the appropriateness of his behaviour in circumstances where he is a parent of one of the girls on the team and not one of the girls.
The circumstances giving rise to the August 2012 complaint was a complaint to police about the applicant having inappropriately touched a 13 year-old girl on her breasts as he assisted her with connecting her seatbelt while sitting in his car. A record of this complaint is contained in a police COPS Event Report, dated 7 August 2012. The report states that the incident occurred on 18 May 2012 and while the girl, D, thought what had occurred was a little strange she dismissed it until the day of the report, when she informed her class teacher as to what had occurred. The COPS Report goes on to state, "Police spoke with the victim and although the child is very believable no action will be taken against the POI [the applicant] as there is insufficient evidence to proceed with a prosecution."
The COPS Report also notes that D and her mother were contacted to ascertain whether they wished police to investigate the matter further. It is noted D's mother did not wish her daughter to provide a statement or that any further action be taken in relation to the matter.
In his affidavit the applicant refuted the accusation. He explained D and her sister were friends of his daughter and they all attended the same school and played in the same soccer team. He said they had been guests of his family on the day of the alleged incident. He said D wanted to give her sister a surprise birthday present. He said he agreed, but they had to make their own way there.
The applicant went on to say that at the beginning of October 2012 he approached the Deputy Principal of the School about threats D had made against his daughter and disparaging comments she had made about the Deputy Principal. He said the school took disciplinary action against D. On the applicant's account of when he made his complaint and the disciplinary action (if any) was taken all occurred after the complaint had been made to police.
While I have not seen the summons the applicant asserts the Registrar rejected, I have assumed from his submissions that it might have been a summons seeking production of documents relating to his complaint and the action taken in regard thereto. In my view, other than to ascertain the date on which that complaint was made, any material produced in regard to that complaint would not be relevant to the issues before the Tribunal as it is the applicant's conduct that is in issue in these proceedings and not that of the child.
In any event, on the material before the Tribunal, I find that there is insufficient material to find that the applicant acted inappropriately as alleged. The report appears to have been made by the School - however, D nor her mother wanted to pursue the matter. Why this was so is not explained in the report. In any event the police took no action in regard thereto.
The circumstances giving rise to the 2013 complaint was a complaint Ms A had made, in June 2013, to the Soccer Coach. Ms A made her complaint in an email that day in which she expressed concerns about comments the applicant had made about her daughter, B, on her Facebook page. She said the comments made her daughter feel uncomfortable. In the email, Ms A explained her daughter was a new member of the Soccer Team and had become close friends with the daughters of the applicant. She said her daughter would often go on outings with them and had slept over at the applicant's home a few times. She said her daughter told her that most of the time the applicant was polite towards her, but recently he had been telling her how beautiful and gorgeous she was. She explained that her daughter would often post pictures of herself on Facebook and the applicant would add a comment to the posted photo about how beautiful she was and not to put "sexy photos" up for other boys to look at. She said almost every photo her daughter posted on her Facebook page, the applicant would make a "like" comment to it. She said the applicant would also send her daughter private "inbox" messages on her Facebook account in which he said how beautiful she looked and if anything happened to her he didn't know what he would do as he loved her so much. She said that at a "sleepover" at the applicant's house, the applicant had taken photos of her daughter and his daughter and posted the photos on his Facebook page. Ms A questioned the appropriateness of these photos. Ms A also asserted, the applicant had a photo of her daughter on his Facebook page when she was about 4 years old. She said he did not know her then and asserted he had "obviously copied" the photo from her daughter's Facebook page after she had posted it.
Copies of the photographs, other than when she was 4 years old, and the comments made by the applicant were included in the documents relied on by the respondent.
In her oral evidence Ms A explained that she had made copies of the photographs and comments from her daughter's Facebook page by taking a photograph of these with her Iphone.
On 4 July 2013, the applicant wrote to the Secretary of the Soccer Club, with a copy to the President, complaining about the complaint Ms A had made. In his email the applicant asserted the matters raised by Ms A had no relation to the Club, nor any association with the Club. He said, he too had referred the matter to police, who indicated the matter did not raise any concerns, was closed and no further action was required. He said the matter related to a breakdown of a family relationship - between the two families and the alleged victimisation of "my person and my children". He said he had made police aware of further child protection issues, which related to a child having an association with the Club. He went on to make allegations against the Coach of the Club and asserted that the images produced by Ms A were a cut and paste that had been altered so as to alter their contextual meaning. He ended this email by stating the following: "I also have to inform you that this is also under the Child Protection Act, that a child or two have sent explicit photographs of a sexual nature and that one child was actually wearing a Club Shirt. This matter concerns me as the alleged photo was sent to my children along with a number of other persons. I have forwarded a number of images to the NSW Police and they are also in the process of obtaining other such from the internet/phone providers."
On 8 July 2013, the Secretary of the Soccer Club wrote to the applicant in regard to the complaint that had been made by Ms A. It was noted that the photographs the subject of the complaint had been referred to the police. The letter went on to say the following: "Our recommendation is that you do not approach either [Ms A] or her daughter [B] at any soccer matches involving …. soccer club where [B] and/or [the applicant's daughter] are present or any club for the remainder of the 2013 season. We are also concerned that this is the second occasion where you as a parent/guardian have been advised not to approach a junior player of our Club. The Committee believe your actions via social media is bringing the Club's name and its reputation as a family club into disrepute. If this continues we will have no option other than to deregister you and your family from the Club. As a family club for over 50 years we need to take this course of action."
In his affidavit the applicant said that in early 2013 he and his family were friends with Ms A and her three children. He said they attended soccer and other events together. He said that on or about late June 2013, he had two police officers attend his home. He said they asked him about an email and some photos he had allegedly taken of Ms A's daughter, B. He said the police showed him a document, which purported to be an email he had sent to B. He said he disagreed with the context and content of the email, which was a Facebook inbox. He said he asked the police where they had obtained the document from and then took the police to his computer where he showed them the email he had sent as it appeared on his computer. He asserted the email on his computer differed to the email he was shown by police. He went on to say that B had been posting semi-nude photos of herself, which he thought to be provocative. He said he reported these to Facebook and Ms A. The applicant tendered into evidence a copy of his reports to Facebook and the photographs which were of concern to him. Ms A acknowledged that the applicant had spoken to her about the appropriateness of the photos her daughter had posted. However, when the applicant showed her copies of some additional photos allegedly posted by her daughter, Ms A said these had been taken by her.
In his oral evidence, the applicant acknowledged that some of the photos of B that were included in the respondent's bundle of documents had been taken by him and posted on his Facebook page. These photos he said were taken during a family outing, where B had joined them. Attached to his affidavit, the applicant included a copy of these together with some additional photos and comments that had been posted in regard thereto. Some of the photos attached to the applicant's affidavit were photos of his daughter and B.
The applicant agreed in cross-examination that he had not sought B's consent or that of her mother to post the photos on his Facebook page. His responses, however, left me with the impression that he did not think it was necessary to do so as they were essentially "family photos".
In my view some of the photos could be described as being such. However, the applicant did not seem to have any understanding as to the appropriateness of posting them on his Facebook page, especially those which solely pictured B.
The messages the applicant sent to B via her Facebook inbox, in my view, were inappropriately personal and intimate and demonstrated his lack of understanding of his role as an adult and not a parent of B. A copy of the applicant's messages and the responses thereto are contained in the material filed by the respondent.
The applicant asserted the messages were taken out of context and that he could establish this to be the case, yet he did not provide any evidence to support his contention. At the same time, the applicant did not dispute the content of the messages, which were attributed to him.
In his report, Dr Baron said the applicant described these messages as a gentle reprimand to B about the provocative photos she had posted on her Facebook page. He was quoted as having said to Dr Baron that: "(he) was talking to her in a way that she'd understand, rather than say "Don't do it", because she had this thing about not being beautiful, so that's how I put it."
When asked why Ms A would have complained to police, the applicant told Dr Baron he did not know and denied that his remarks were grooming in nature. Dr Baron went to record the applicant having said "his postings were out of concern for how the young girl's postings could be taken up by others, and were out of concern for her well-being."
In my view, even if the applicant's motivation in making the comments is accepted, they remain inappropriate for a person in the applicant's position, given their very personal and intimate nature. For the applicant to persist that the comments were appropriate, in my view, demonstrates his lack of understanding of what is and is not appropriate in such circumstances. That is, he appears to have a poor understanding of appropriate boundaries between an adult and a child that is not his child. Such a lack of understanding, in my view, poses a real and appreciable risk to the safety of children.

The age of the applicant at the time the above mentioned matters occurred

The applicant was 39 years of age at the time of the alleged conduct that led to the 2004 charges of indecent assault. In regard to the more recent complaints the applicant was aged between 44 years and 47 years.

The age of each alleged victim of any relevant conduct at the time they were alleged to have occurred and any matters relating to the vulnerability of the victim

As noted above the victim of the alleged indecent assault charge was 7 years of age and she was in the applicant's care when the alleged conduct occurred.
The complainant in the 2009 complaint was between 19 and 20 years of age and the age of the girls the subject of the abovementioned complainants were between 13 and 15 years of age.

The difference in age between the alleged victim and the applicant and the relationship (if any) between the alleged victim and the applicant.

There was approximately 32 years age difference between the applicant and the alleged victim of the indecent assault charge. The alleged victim was the daughter of the applicant's then partner and the alleged incident occurred while the applicant was bay-sitting.
In regard to the 2009 complaint, the difference in age between the applicant and the alleged victim was approximately 24 years. In regard to the remaining complaints the difference in age between the applicant and the girls the subject of the complaints was about 34 years. The girls were either a friend of the applicant's daughter, or were members of the same Soccer Team as his daughter. In the case of every complaint the applicant was in a position of some authority.

Whether the person knew or could reasonably have known that the victim was a child

There is no dispute that the applicant understood that the alleged victim of the indecent assault charge was a child, as were the girls the subject of the abovementioned complaints.

The person's present age

The applicant is now 50 years of age.

The seriousness of the applicant's total criminal record and the conduct of the applicant since the offences/matters occurred

The applicant has a number of convictions, which did not relate to children.
As I have noted, in 1994 the applicant was charged with a number of offences of assault, using a misleading title, dishonesty by obtaining a financial advantage by deception and make false/misleading statement. He was convicted of many of these and again sentenced to periodic detention. Some of the offences were found proven and were taken into account for the purposes of sentencing. The applicant appealed his convictions. The District Court confirmed the convictions but reduced the sentence.
The charges all related to the applicant's dealing with a woman he met in August 1993. The woman had suffered an injury to her neck in Singapore in 1991. The woman said the applicant told her he was a neurologist and when she returned from a trip from Singapore in 1993, the applicant met her at the airport. In a car park at the airport the applicant was alleged to have injected the woman with an unknown substance. Between February and October 1994, the applicant was alleged to have injected the woman with the unknown substance on three occasions at his home. He did so on the basis of representing that he was a qualified medical practitioner. The applicant was alleged to have been paid $3,000.00 for each injection. The applicant was alleged to have provided the woman with a medical certificate for her to send to her legal counsel in Singapore. The woman said she thought the applicant was injecting her with pethidine.
The applicant has never been a registered medical practitioner.
In his evidence the applicant asserted he did not represent that he was a medical practitioner. He also denied that he had injected the woman. He asserted she was addicted to pethidine and that he had been "set up" by the woman and her associates. In the defended hearing, the Court clearly did not accept this to be the case and accepted the evidence of the woman.
The applicant did not offend again until 2004 when he was charged with the trigger offences referred to above.
In 2005, the applicant was charged and convicted of an offence of causing a postal article to be delivered to the wrong person. That conviction was subsequently quashed by the District Court.
In 2006, the applicant was charged and convicted of an offence of contravening an Apprehended Domestic Violence Order, which was also subsequently quashed on appeal by the District Court.
In 2011, he was charged with a number of offences of passing valueless cheques.

Likelihood of any repetition by the applicant of the conduct the subject of the abovementioned complaints and the impact on children of any such repetition.

As I have noted, Dr Pusic and Dr Baron were not available to be cross-examined on their respective assessment reports of the applicant. The respondent did not object to the tender of the reports, but argued the Tribunal should give little weight to the opinions expressed in the reports, as they were primarily based on the self-supporting of the applicant and without the benefit of the entirety of the information before the Tribunal at the hearing (e.g. the 2009, 2012 and 2013 complaints).
The applicant submitted Dr Baron's report in support of his application to the respondent for a clearance. That is, the report was prepared before the respondent made her determination to refuse the applicant's application for a clearance. Accordingly, it is unlikely the applicant had available to him all the material that was placed before the Tribunal at the hearing. Hence it is difficult to be critical of the applicant for not providing the material to Dr Baron. The applicant did however, inform Dr Baron about the complaints.
On this basis, I do not see why Dr Baron's report should not be considered and his opinion being given weight as is appropriate having regard to the information that is before the Tribunal.
Dr Baron conducted his psychological assessment of the applicant's risk of sexual recidivism by using the accepted forms of assessment, these being: 1. assessment of actuarial risk, 2. assessment of the applicant's personal/psychological risk factors, and 3. overall judgment of level of risk - i.e. effective risk - management strategies and protective factors to be taken into account when making an overall judgment about the applicant's current level of risk.
In regard to the actuarial assessment, Dr Baron found that the applicant's total score on the STATIC-99R (Harris, Phenix, Hanson & Thornton, 2003; Helmus, Babchishin, Hanson & Thornton, 2009) placed him in the low risk category relative to other males who had been charged with, or convicted of, sexual offences.
In regard to the assessment of the applicant's personal/psychological risk factors, Dr Baron considered the stable dynamic risk factors and acute dynamic risk factors. The stable dynamic risk factors, Dr Baron explained to be the persistent characteristics that are relatively unchanging over time. However, he added they can change for a number of reasons and are therefore amenable to interventions such as treatment, monitoring and an established pattern of pro-social living demonstrating desistance. In this regard Dr Baron noted the applicant had a somewhat turbulent history in terms of his intimate relationships and various activities that have, for various reasons, drawn the attention of the police and landed in Court. Dr Baron went on to say that there were suggestions in the material provided by the applicant that, in part, his reaction to various stressful life events involved emotional collapse and he engaged in behaviour that had been alleged to be illegal or otherwise problematic. He said that it needed to be noted that as a potential risk factor for sexual recidivism, the central issue was whether the applicant had a general propensity to engage in anti-social behaviour - including sexually abusive behaviour. Dr Baron said that on his examination of the contents of the applicant's involvement with police and the Courts this did not appear to be the case with the applicant. He said, in his opinion the applicant had demonstrated a capacity to systematically confront and resolve various life problems in a largely appropriate way through the Courts.
In regard to the acute dynamic risk factors, Dr Baron explained that these were those risk factors that can fluctuate on a short-term basis. Again Dr Baron provided considerable detail in this regard. He set out, what in his opinion were risk factors and those that were protective factors in so far as they related to the applicant. Dr Baron identified a protective factor as being the applicant's aspiration to develop a career in law, with the incentive of avoiding any further legal difficulties that could jeopardise such a career. Another factor was the applicant's stated openness about his past to his children, to potential partners and to others in his social networks.
Dr Baron's overall evaluation of risk was as follows: "Based on the above considerations, it does not appear that [the applicant] can be considered a pro-sexual risk to children or young people in the areas on which he has applied for a working with children check. Conclusions and Recommendations On actuarial assessment [the applicant] has been assessed as falling in a "low" risk category with an associated recidivism rate for similar charges of 3% over 5 years. A review of his personal/dynamic risk factors (stable & acute) indicates a low likelihood of his failing within the small percentage of recidivists - as long as any relevant risk factors are recognised and appropriately managed, and protective factors are maintained and enhanced."
I accept Dr Baron's analysis that the likelihood of the applicant being charged with a sexual offence of the kind he was charged in 2004 is low. However, on the basis of the complaints that have been made against him in more recent years and his lack of understanding about his behaviour which gave rise to the complaints and the effect it might have on children, I find there remains a real and appreciable risk to the safety of children if he were granted a working with children check clearance. If he were to satisfactorily address his lack of understanding that risk may no longer be of concern.
For completeness I have also considered the report of Dr Pusic. He explained the applicant had been referred to him for treatment, in May 2012, by the applicant's local general practitioner. He said he diagnosed the applicant as suffering from "Adjustment Disorder with Anxiety and Depressed Mood, running a chronic course" due to ongoing sever stressors over the previous 10 years". Dr Pusic's description of these stressors, as described to him by the applicant, includes a very brief reference to the 2004 trigger charges. These charges, Dr Pusic explained were described to him by the applicant as being false allegations made by his former wife who had a long history of psychiatric illness. The allegations, as I have noted, were not made by the applicant's former wife.
Dr Pusic described the treatment the applicant had been provided, that the applicant participated willingly as an outpatient and that he had benefited from the treatments. Dr Pusic concluded by saying that in assessing and treating the applicant, there was nothing to suggest that the applicant poses any risk, sexual or otherwise, to children or young people.
In my view, while Dr Pusic's conclusions may be correct on the basis of his treatment of the applicant and the information he was provided, they are not conclusions based on the material that is before the Tribunal. Nor was he tasked to provide an independent expert risk assessment report. Accordingly, I have accepted his conclusions in the limited context in which they were made and I remain of the view expressed in paragraph 128 above.

Any information given by the applicant in, or in relation to, the application

I have dealt with the applicant's submissions and evidence above.
I accept the refusal of his application for working with children has been very stressful for the applicant. He impressed me as a person who seeks and believes he can help others, but in doing so does not understand or assess where the boundary lies. Hence, when he oversteps the boundary he fails to look at his own conduct and blames others. It is in this context that the applicant's Facebook "friends request" and Facebook messages are of greatest concern. The circumstances in which he befriended Ms C and his behaviour towards her are also on concern as are the circumstances giving rise to the 2004 charges. The concern relates to the applicant's lack of understanding of appropriate boundaries between himself as an adult in a position of trust and authority and that of a child.
It is this lack of understanding, in the context of his behaviour which caused Ms C and the parents of a child known to the applicant to make a complaint about him to police, that I have found to pose a real and appreciable risk to the safety of children if he were to be granted a working with children check clearance.

Any other matters that the Children's Guardian considers necessary

Counsel for the respondent submitted that the decision of the respondent to refuse the applicant's application was the correct and preferred decision on the basis of the seriousness of the 2004 charges and the applicant's concerning behaviours, including the use of social media to harass young girls and a woman, which led to the complaints in 2009 to 2013. The harassment the respondent contended to have been in the form of an invasion of privacy.

Conclusions

For the reasons set out above, I have found that the applicant has engaged in a pattern of inappropriate conduct towards a young woman, Ms C, and the girls in the Under 14 Soccer Team of which his daughter was a member. The conduct primarily related to the applicant's use of social media in communicating with the girls and Ms C. This was especially so in regard to the comments he made, through social media, concerning child B. While I have not made any finding of unlawful conduct, let alone sexual misconduct, I have found that the applicant has little, if any, understanding about boundaries between himself as an adult and the children he might have direct contact with if granted a working with children check clearance.
As noted above, s 4 of the Child Protection Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular protecting them from child abuse." Inappropriate conduct by an adult towards a child can amount to child abuse, especially where the adult is in a position of trust and authority.
The applicant's pattern of inappropriate conduct was preceded by the complaint, in 2004, of the applicant having allegedly indecently assaulted the seven-year old daughter of his then partner. While no findings have been made in regard to the applicant having engaged in the conduct as alleged, it was nevertheless a complaint that arose in circumstances where the applicant had been the only adult in the house at the time.
I reiterate, it is the applicant's lack understanding of appropriate boundaries between himself and a child which, I have found to be a real and appreciable risk to the safety of children if he were to be granted a working with children check clearance at this time. That risk is not substantial and he may of course be able to address this lack of understanding through counselling and other educative means. If he does satisfactorily address this lack of insight, I note, the respondent can accept a further application by the applicant for a clearance, prior to the five year limit set out in section 21 of the 2012 Act. That acceptance will of course depend on the nature of the material provided by the applicant in support of his application at that time.
However, in light of my findings on the material before the Tribunal in this application, I find that the decision of the respondent is the correct and preferred decision and should be affirmed. 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: 15 July 2015

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Cases Cited (8)