BNJ v Children's Guardian

The Working with Children legislative scheme

1. Section 4 of the Child Protection (Working with Children) Act 2012 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.
2. 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 Children's Guardian for the relevant working with children check clearance.
3. The term 'child-related work' is broadly defined in section 6 of the Act. While it is unnecessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in or proposes to engage in 'child-related work', I note that section 6 of the Act provides that a person who engages in work for or in connection with religious services involving direct contact with children is engaged in "child-related work" for the purposes of the Act.
4. Section 12 of the Act provides for two types of working with children check clearances: (1) volunteer- authorising workers to engage in unpaid child-related work; and (2) non-volunteer - authorising workers to engage in paid and unpaid child-related work.
5. Subsection 18(1) provides that the Respondent must refuse an application for a clearance where the Applicant is a disqualified person by reason of having been convicted of an offence falling within Schedule 2 of the Act, or is a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
6. Section 5 of the Act defines "conviction" as including a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.
7. Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time (see section 23 of the Act in regard to the grounds on which a clearance can be cancelled or suspended).
8. Subsection 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order.
9. Where such an application is made, section 28 also provides the following: 28 Orders relating to disqualified and ineligible persons (1) … … (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to … grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) …
10. 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.'
11. The former Administrative Decisions Tribunal construed the meaning of 'risk', as it appeared in subsection 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word 'risk', has a similar meaning in the current Act.
12. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms: 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.
13. Finally, 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 the safety of children.

Consideration of the s30(1) factors

1. Set out below is the evidence and my findings in regard to the section 30(1) factors.

(a) The seriousness of the Applicant's disqualifying offence

1. The disqualifying offence occurred on 15 January 2014. The victim involved was an 83 year woman, for whom the applicant had been employed as an in-home carer. The applicant's duties included feeding, toileting and generally supervising the victim, who suffered from dementia, was unable to communicate effectively, and required a high of level of care and assistance.
2. According to a police record of interview conducted on 7 February 2014, it was alleged that on 15 January 2014 the applicant exposed his penis in the presence of the victim who was sleeping in a chair. His actions were witnessed by Mr S, a man who was formerly married to the niece of the victim, and who was the victim's primary carer. According to Mr S, he observed the applicant to be "pulling himself' (masturbating) while the applicant's erect penis was exposed, with his belt and zipper undone.
3. Mr S subsequently entered the room, by which time the applicant had placed a cushion over his lap. Mr S did not discuss what he had observed with the applicant. Mr S instructed the applicant to take the victim to the home of another family member, which was part of the applicant's normal duties. However, on this occasion, it occurred at an earlier time than usual on the instruction of Mr S.
4. The applicant attended the victim's residence the following day and performed his usual caring duties. There was no conversation between Mr S and the applicant about the previous day's incident.
5. The following week, on 21 January 2014, the applicant attended the home to carry out his caring duties. Mr S confronted the applicant and said to him: "I know what you did", to which the applicant asked to be given a chance, and also said "no, you misunderstand. I wasn't doing that". Mr S told the applicant he had filmed him (which in fact he had not done), and the applicant asked to be shown the film. Mr S refused, asked the applicant to leave, and proceeded to push and head-butt the applicant. It is also alleged that Mr S used a small knife with which he struck the applicant, and in respect of which the applicant received minor wounds.
6. During the police record of interview, the applicant denied that he was masturbating during the incident in question. He stated: "…I had a hernia operation about two or three years ago and I was trying to (ease) the pain, the ache in the groin and then the man saw me doing it and he ….thought I was doing something else".
7. The applicant further stated that he suffers hernia pain, namely stiffness in the groin, from sitting for long periods. In respect of the incident on 15 January 2014, he agreed he may have protruded his penis. He said he put the cushion over his private parts when Mr S entered the room, as he did not want him to see him massaging his groin, as he is "embarrassed by that sort of thing".
8. He admitted that it was not appropriate to have his penis exposed while the victim was nearby, but said he had to do something to ease the pain, and he thought the victim was asleep.
9. Neither the applicant's conduct on 15 January 2014, nor the alleged assault on the applicant on 21 January 2014 were immediately reported to the police or the applicant's employer. When asked why he didn't tell his employer his version of events immediately, the applicant said it was because he (Mr S) didn't tell him that he had done anything wrong on that day.
10. The applicant's employer commenced inquiries upon becoming aware of the matters concerning the applicant and Mr S, and arranged an independent workplace investigation. As part of that investigation, the applicant made a statement dated 4 February 2014. In it, he states that he has had a total of four hernia operations. He was advised that the scar from the surgery would take time to heal. He states he ceased receiving treatment for his hernia in May 2013.
11. The applicant stated that on 15 January 2014, he had assisted the victim with feeding and toileting, after which time she had fallen asleep in her chair close to where he was seated. The applicant stated he started to feel pain in his groin along the scar from the surgery. He stated he undid his belt and zipper to access the sore area of his groin and rubbed it for about 5 minutes. He stated Mr S entered the room, but stated his genitals were not visible, as he had placed a cushion on his lap when he saw Mr S.
12. The applicant stated: "I do not really think it was appropriate to rub my groin at that time. I cannot rub my groin standing up because its stretching the groin muscle. I did not go to the toilet or another room at that time because (the victim) was sleeping and I was covered up and could not see anything. I deny that I was masturbating at the time." He also said: "I do not believe that my actions on that day breached the Code of Conduct. I had the cushion close to me and kept myself covered. I do think it may have caused offence if someone saw me do this".
13. The outcome of the investigation concluded that the applicant's actions constituted breaches of his employer's policy and code of conduct. The applicant attended a meeting with his employer on 10 February 2014 to discuss the outcome of the investigation. During the meeting, the applicant denied that his behaviour was inappropriate, indicating that the elderly client was asleep and that he was in pain. When questioned about his failure to seek alternative relief, including obtaining treatment for his pain, taking sick leave, contacting his employer to conclude his shift early, or removing himself to the bathroom to attempt to alleviate his pain, the applicant merely reiterated that he was in pain at the time. The applicant's employment was terminated effective from the date of that meeting.
14. The applicant was charged with one count of indecency contrary to s.61O of the Crimes Act 1900. The transcript of the Local Court proceedings was made available to the parties and the Tribunal on the morning of the Tribunal hearing.
15. During the Local Court hearing, in which the applicant was unrepresented, Mr S gave evidence that he witnessed the applicant "pulling himself" in the victim's presence. The applicant gave evidence and was cross-examined by the prosecution. The applicant did not deny he touched his groin area, but said he did so to relieve the pain he was experiencing. He agreed that his penis may have been exposed, however, he denied that his penis was erect and he was masturbating. He denied his actions were for sexual gratification. He stated that he did not remove himself to another room to relieve the pain, because the pain only occurs when he is seated for long periods and he did not wish to leave the victim alone for the 15 or 20 minutes it would take him to relieve the pain. He stated he needs to stretch his leg out to relieve the pain and it is hard to do this with clothing on the area. He stated: "I knew it was wrong doing it there and then in the workplace", and further agreed that it was completely inappropriate to do so in the presence of a person dependent on him.
16. The applicant went on to admit that his action "probably was an act of indecency but I didn't really mean to hurt anyone, or lose my job over it, or I guess it's not really in my character to do that sort of thing, I've never done anything like it before".
17. The Magistrate distinguished between the offence of indecent assault and indecency (with which the applicant was charged) and indicated that proof of sexual gratification was not required to constitute the offence. In light of the applicant's admission, the Magistrate stated: "It's a very difficult situation that you're in because you're just being very honest, but in being so honest you've virtually conceded that it was indecent. I was more of a mind to - well, that having occurred it really gets down to what I'm going to do about it, and what I'm going to do about it is find the offence proved but not convict you of the offence. So it's a 10(1)(a) and you're free to go".
18. The Tribunal finds the disqualifying offence was serious. It involved the commission of an indecent act in the presence of a vulnerable person in the applicant's care. The victim's dementia meant that she was unable to remove herself from the situation or prevent it from occurring. The applicant was in a position of authority and trust, and this aggravated the offence.
19. However, the remarks of the Magistrate and his decision not to record a conviction indicate that his Worship considered that the applicant's offending was at the lower range of offences of this nature. Furthermore, his Worship also intimated that but for the frankness and honesty of the applicant, the offence may not have been proved to the requisite standard. His Honour did not make any specific findings that the applicant's actions were committed for the purpose of sexual gratification. Rather, the Magistrate's remarks indicate that his finding that the offence was proved was made in the context of the applicant's concession that it was inappropriate to expose his genitals in the presence of the victim and during the course of his employment.

(b) The period of time since the disqualifying offence occurred.

1. It is now approximately 15 months since the disqualifying offence occurred.

(c)The age of the Applicant at the time the disqualifying offence was committed

1. The Applicant was 57 years of age at the time of the offending conduct. He is now 58 years of age.

(d) The age of the victim and matters relating to the vulnerability of the victim.

1. The victim was 83 years of age at the time of the offence. She had dementia of a severity which rendered her unable to properly communicate. She was dependent on others for her activities of daily living. The Tribunal finds that the victim was vulnerable. The applicant maintains that the victim was asleep during the incident and therefore did not witness his actions. There was also a suggestion that the victim's dementia was such that she would be unlikely to comprehend the applicant's actions. However, in the Tribunal's view, on neither view does it lessen the seriousness of the conduct or the vulnerability of the victim.

(e) The difference in age between the victim and the Applicant and the relationship between them

1. There was 26 years' difference in age between the victim and the applicant. The applicant was a carer who had the responsibility of providing care to the victim. He had been engaged, through his employer, by the victim's family to share the responsibility of caring for the victim whose needs were high. The applicant was in a position of trust and responsibility.

(f) Whether the Applicant knew or could reasonably have known the victim was a child

1. The victim was an adult.

(g) The Applicant's present age

1. The Applicant is now 58 years of age.

(h) The seriousness of the Applicant's total criminal record and his conduct since the disqualifying offence.

1. The applicant has entries of his criminal record, both as a juvenile and as an adult. In particular, on 24 October 1974, the applicant was convicted in the Children's Court of the offences of "No 'L' Plate", No Headlights, Resist Arrest, Supply False Name and Address, Unseemly Words and Unaccompanied Driver. He was fined, had his licence disqualified, and a probation order of six months to be of good behaviour was made. On 27 August 1975, when an adult, the applicant was convicted of further driving offences, namely, Unaccompanied Learner and Not Signal Intention, in respect of which he was fined.
2. On 31 October 1979, the applicant was convicted of stealing for which he was fined $150 and ordered to pay compensation of $115.
3. On 16 March 1989, the applicant was convicted of 2 counts of Assault Female, for which he was fined a total of $80. Court records indicate that the offending occurred in November 1998, and involved the applicant striking his wife in their home. The applicant and his wife participated in mediation with a community justice centre, and signed an agreement about various domestic matters, including methods of resolving future disputes.
4. On 19 November 1990, the applicant was convicted of further assault of his wife, in respect of which he was ordered to enter into a recognisance for 18 months to be of good behaviour and not to assault his wife. The police facts state the applicant slapped his wife's face with an open hand following a domestic dispute over a milkshake.
5. In his evidence before the Tribunal, the applicant said that the assaults on his wife arose during a period of marital difficulties. He said they were undergoing IVF treatment that required them to travel long distances and which placed considerable strain on their marriage. He said the situation improved significantly when their son was born in 1994. The applicant continues to be married to his wife to the present day.
6. The Tribunal accepts that the assaults on the applicant's wife were serious. Each one resulted in charges being laid and convictions being recorded. However, the Tribunal accepts that they were committed approximately 24 years ago during a period where the applicant and his wife were experiencing considerable stress. The Tribunal takes into account that for 24 years, the applicant had not come into contact with the criminal justice system until the disqualifying offence occurred.

(i) The likelihood of any repetition by the Applicant of the offence and the impact on children of any such repetition

1. The applicant does not seek to rely on any psychological assessment. He said that since losing his job, he has been unable to obtain full employment, and he cannot afford to see a psychologist.
2. Inquiries with St John (NSW) indicate the applicant has been a voluntary member since 17 August 2000, and his primary responsibility is to provide first aid support to the community. The applicant has not been the subject of any current complaints or disciplinary action in relation to that volunteer work. His former employer has also confirmed that there were no relevant complaints during the period of his employment. The Department of Family and Community Services have indicated that there are no records pertaining to the applicant's two children.
3. The applicant is married and has two adult sons, one of whom lives at home with him and his wife. The other works for a large supermarket chain in Sydney.
4. There is no evidence that the applicant has committed offences against children, or has engaged in inappropriate conduct in relation to children. It would appear that the likelihood of any repetition of the offence or conduct would be low.

(j) Information given by the Applicant

1. In his letter to the Tribunal, the applicant states that these matters have affected him greatly. He has been unable to work, and is currently unemployed and in receipt of Centrelink payments. In addition, he has not been able to continue with his volunteer work at his local church and with St John (NSW).
2. On the morning of the hearing, the applicant tendered into evidence various medical reports which corroborate the applicant's assertions that he had a number of hernia repair surgeries between 2010 and 2012. A report of Dr Robinson, General Surgeon, dated 2 March 2012 states that the applicant was having an occasional sharp pain in the left groin, occurring three or four times a day lasting several minutes, and for which he was prescribed medication. A further report of Dr Robinson dated 6 June 2012, indicates the applicant was "still having pain in his left groin", and referred him for injection therapy for his pain. A report of Dr Davies, Neurosurgeon dated 1 August 2012, states: "Thank you for asking to see (the applicant) in relation to persisting pain in the left groin following his last hernia repair. (The applicant) told me that he has had two previous hernia repairs without any similar problems but has been troubled by dull aching pain adjacent to his surgical incision since the most recent repair about nine months ago". A further report of Dr Robinson dated 7 December 2012 indicates the applicant was still having occasional shooting pain in the inner left groin, and recommended that the area be explored to remove any staples that may have been left in the area and may have contributed to his ongoing pain.
3. In addition, recent medical investigations by the Wollongong University's Graduate School of Medicine Clinical Skills program have revealed that the applicant's left testicle is significantly smaller than the right, and in respect of which further medical attention has been advised. Scrotal ultrasound also confirmed the significantly smaller left testicle, which suggests atrophy and fibrosis, the cause of which is likely to be chronic vascular insufficiency. The applicant suggests this may be related to the pain he has been experiencing.
4. The applicant gave evidence during the Tribunal hearing. He said he said he had "never done anything that's alleged in that situation before", and that he had his own children.
5. In cross-examination, the applicant said that his volunteer work with St John involved him providing first aid to adults and children at community events, including those involving sports and leisure activities. In addition, he has undertaken volunteer work with a church organisation, visiting people in need and providing assistance with food and bill paying. However, due to the current bar put in place by the respondent, he has been unable to perform his volunteer work. He has also been unable to obtain employment as a carer, and relies on small amounts of work delivering newspapers and phone books. His Centrelink payment fluctuates depending on the amount of part time work his wife undertakes each fortnight.
6. In relation to his offending, the applicant said he was ashamed by what he did and what Mr S perceived to see. He said he was "shocked" by what Mr S thought he had done. The applicant said it was not something he would normally do in public but he was in great pain at that stage. The applicant said the victim would not have known anything that happened, and he thought she was asleep. However, the applicant agreed that the victim was a vulnerable person because she was dependent on him for help. The applicant also agreed that the victim's family might feel betrayed, as the action occurred in the family home and in a workplace context.
7. The applicant is still married to his wife. He said he had a long period of employment before he became redundant. He said he commenced studies to become a carer as he did not wish to return to heavy work, he had always had a first aid certificate, and he enjoyed doing first aid and talking to people.
8. The Tribunal formed the view that the applicant was frank in his evidence and demonstrated an awareness and understanding of the inappropriateness of his actions, particularly in circumstances where he was responsible for the care of the victim and he was performing duties in the course of his employment. The Tribunal formed the view the applicant shows genuine remorse for his conduct, and recognises its potential impact on the victim and her family. There was no evidence before the Tribunal that the applicant's conduct was part of any pattern of inappropriate behaviour, but rather, it appeared to be an isolated incident.

(k) Any other matters that the Children's Guardian considers necessary

1. The respondent provided an outline of written submissions which were prepared prior to the Tribunal hearing, and which concluded the Tribunal could not be comfortably satisfied that the applicant had discharged the onus to prove that he does not pose a risk to the safety of children. However, counsel for the respondent stated that the further evidence not previously before the Children's Guardian, namely the transcript from the Local Court and the medical evidence, was significant. As a result, the respondent now reserves its position on the applicant's application.
2. According to counsel for the respondent, the Magistrate in the Local Court proceedings found the applicant to be frank and honest, and found the offence proved on the applicant's concessions, not on any findings of sexual gratification. Counsel for the respondent also pointed to the medical reports which showed a consistent history of pain in the applicant's left groin, which corroborate the applicant's statements to police and to the Local Court, and do not suggest a recently invented explanation for his conduct. While not diminishing the seriousness of the offence and the vulnerability of the victim, counsel for the respondent submitted that the applicant's 14 years of volunteering for St John (NSW) without complaint, his 24 year gap in offending, together with the medical records, lend support for the applicant's credibility.

Conclusions

1. The role of the Tribunal in this application is to determine whether the applicant has discharged his onus and rebutted the presumption that he does pose a real and appreciable risk to the safety of children because of his past offending.
2. The Tribunal takes into account that the finding of the Local Court that the offence of aggravated indecency was proved. The Tribunal accepts that that the applicant's actions in exposing his genitals in the presence of a elderly person to whom he was providing care was inappropriate and concerning. The victim was vulnerable, lacked capacity to give consent, and was unable to independently remove herself from the situation.
3. However, the Tribunal notes that this matter does have some extenuating circumstances. The applicant has been consistent in his claim that his actions were to relieve pain rather than to obtain sexual gratification. At the Tribunal hearing, he has produced medical records that corroborate and substantiate his claims that at the time of his offence, he had a 2-3 year history of groin pain, including four surgical procedures for hernia repair, and further investigation and treatment. Such evidence does not appear to have been before the Local Court during the criminal proceedings, and is relevant in terms of the applicant's conduct and his credibility generally.
4. In addition, there have been no prior complaints against the applicant in relation to his previous employment. He has had 14 years of service with St John (NSW) administering first aid to adults and children during which time there have also been no complaints. He is married and has two adult children. Before his disqualifying offence, he had 24 years without a conviction. The assaults in 1989 and 1990 were committed during a period in his life where he and his wife were experiencing particular difficulties, which appear to have resolved. The applicant has not been charged with any offences against children nor been the subject of any specific complaints involving children.
5. On balance, and in the circumstances, the Tribunal was satisfied the applicant has discharged his onus that he does not pose a risk to the safety of children.

ORDERS

1. Accordingly, the Orders of the Tribunal are as follows: 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of aggravated act of indecency, found proved by the Local Court on 9 July 2014. 2. The respondent must grant the applicant a Working with Children Check Clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 July 2015 - Paraghraph 66 - updated typo error 09 July 2015 - Error in paragraph numbering 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: 09 July 2015