BQN v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-06-01

reasons for decision

An order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. The applicant in this matter is referred to as "Mr BQN". Other people are referred to in terms of their relationship with Mr BQN rather than by name.
Mr BQN made an application for a working with children clearance on 24 January 2014. The OCG decided to conduct a risk assessment under section 14 of the Child Protection (Working with Children) Act 2012 (NSW) ('the Act'), because an "assessment requirement trigger" under Schedule 1 clause 2(a) of the Act was identified after conducting a criminal record check. The "trigger event" was that proceedings had been commenced against Mr BQN for an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007.
The OCG imposed an interim bar in May 2014. Mr BQN provided further information in support of his application. The mandatory risk assessment was conducted on 10 November 2014 and Mr BQN was advised that the OCG proposed to refuse a clearance, and asked him for his response. Mr BQN provided further information. On 21 November 2014 the OCG decided not to grant a working with children clearance because it was satisfied on the material before it that Mr BQN poses a risk to the safety of children (the Act, subsection 18(2).
Mr BQN made an application for a review of this decision to this Tribunal in accordance with section 27 of the Act.

Nature of the proceedings

The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]

Risk to the safety of children

The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:
'One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but 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". ...'
The remarks have continued to be cited with approval in reference to the current legislation, in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The Evidence and Consideration of the Evidence

The applicant relied upon the following documents: a)Large folder of material with tabbed documents numbered up to 11 filed on 1 May 2015. (Exhibit A1)
The respondent relied upon the following documents: 1. Bundle of Documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 on 27 March 2015. (Exhibit R1) 2. Reasons for decision for the OCG filed on 1 April 2015 (R2); 3. Supplementary documents filed on 27 April 2015 (R3)
The respondent also provided a written submission filed on 27 May 2015.
Mr BQN handed up a written submission at the conclusion of the hearing.
At the hearing, Mr BQN was sworn, gave oral evidence, and was cross examined. His adult step son (Mr XX) also gave evidence under oath during cross examination.
At the commencement of the hearing Mr XX sought leave to represent Mr BQN as his "Agent". He stated that Mr BQN has dyslexia and would be disadvantaged if he is not represented. Section 45 of the Civil and Administrative Tribunal Act 2013 provides that a person in an application such as this has "carriage of their own case" and may only be represented with the leave of the Tribunal. The objects of that Act include that the Tribunal is to conduct its functions in a manner which is accessible and responsive to its users and also to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (subsections 3(c) and (d))
Ms Mahoney objected to Mr XX's application to represent his father, on the basis that Mr XX was a witness and she intended to cross examine him.
Alternatively Mr BQN asked for an adjournment to arrange for legal representation, as he believed that he was at a disadvantage in the hearing because of his dyslexia. The Tribunal confirmed that Mr BQN had written to the respondent asking that the matter be heard on the papers because he believed that his evidence was fully set out in his written submissions. The Tribunal confirmed that Mr BQN has had the opportunity to read all of the material he and the respondent had submitted and that he was still satisfied that the material he had submitted fully represented his case. The Tribunal confirmed with Mr BQN that he has no communication difficulties other than dyslexia, and has no difficulty expressing himself verbally. The Tribunal confirmed with Ms Mahoney that the respondent had no further written material on which it sought to rely.
Based on this information, the Tribunal was satisfied that Mr BQN was fully apprised of all of the written material, would have no need to read new material at the hearing, and has no difficulties with his communication other than in the written form. There was therefore no evidence that Mr BQN's dyslexia would impact to any significant extent on his ability to participate and represent himself during the hearing. On this basis the Tribunal was satisfied that there would be no disadvantage to Mr BQN if leave was not granted to allow Mr XX to represent him, or if the matter were not adjourned to allow him time to obtain legal representation. In coming to these decisions, the Tribunal also noted that Mr BQN is not unfamiliar with legal proceedings, that Mr XX was a witness in the matter, that this matter has been on foot for some months, and that Mr BQN has had ample opportunity to arrange for legal representation before the hearing date but had elected not to do so.
The Tribunal declined to grant leave for Mr XX to represent Mr BQN as an agent. The Tribunal also determined not to adjourn the matter.
Mr BQN relied upon his written material and did not make an oral submission at the outset. At the conclusion of the hearing he provided a further written submission addressing matters in Ms Mahoney's written submission. The Tribunal considered that much of the material provided by Mr BQN was not relevant to the decision under review. Much of it is concerned with perceived procedural errors by the Department of Education and Training, in relation to a notification made by that Department (as Mr BQN had been employed casually at the time of the "trigger offence"), and the OCG, as well as legal proceedings Mr BQN has instigated in other jurisdictions. By including this material it appears that Mr BQN is keen to present a picture of himself as a man "more sinned against than sinning". The Tribunal does not propose to detail this material in these reasons for decision as it was not directly relevant to the matter under review.
Mr BQN explained to the Tribunal that he had applied for a working with children clearance, although he currently does not work or volunteer with children, because he believed it was necessary for his work. He and Mr XX are joint Directors of a Company which offers a number of different services, including IT consulting and running a bus service for local school children. Mr BQN denied that he ever drives the bus (although he has previously done this kind of work), and denied that he has any contact or need to communicate with the children. He explained he does administrative work such as accounts and timetable scheduling. He believed that it was necessary for him to obtain a working with children clearance in order to do this role, in the event that a bus driver was unavailable and he had to call the parents of the children to advise that different driver would be working that day. This did not involve any contact with the children. A representative from the OCG at the hearing advised that a clearance would not be required for him to speak with the parents of children only.

The seriousness of the offences that caused a refusal of the clearance

The Respondent's submission outlined the following conduct by Mr BQN which was regarded as posing a risk to the safety of children.
On 7 July 2009 Mr BQN left a series of voice mail messages for a 15 year old girl (Miss AB), as follows: 1. "Gee I wish you would answer your phone. I want to know if you suck and fuck on the first date whore." 2. "Hello [AB], What. You think you're the bike of [place name]? I just wondered, you know, do you suck and fuck on first dates or is that just like your mum and your dad, 'cause I hear your mum is a pretty lousy root so I'm guessing you're just as bad, you dirty fucking whore." 3. "Will you stop going to lunch and.you slut! I want to talk to you so get off the fucking phone so a person can actually speak to you, you fucking whore. I want a root. I'm desperate. Come on, you're an ugly skank and you'll do."
The messages were said to be in retaliation on behalf of the daughter of Mr BQN's neighbour (Miss XY), to whom Miss AB had apparently sent offensive text messages. The girls attended school together. The incident was reported to the police and Mr BQN was subsequently charged with an offence under the Criminal Code Act 1995 (s.474.17(1) - use carriage service to menace/harass/offend), which was ultimately withdrawn and new charges laid under section 13 of the Crimes (Domestic and Personal Violence) Act 2007, (Stalking or intimidation with intent to cause fear of physical or mental harm). He was convicted in the Local Court and his appeal to the District Court was upheld. However the outcome of the proceedings is irrelevant to the extent that the proceedings themselves amount to a "trigger" for the risk assessment under the Act.
Mr BQN has never denied that he made these calls and left the messages in question, although at the hearing he was unwilling to concede the exact words he is reported to have said.
Put briefly, the submission relevant to this application is that in July 2009, at the time he left the voice mail messages for Miss AB, he was under a great deal of stress because of the other litigation and contentious matters he was involved in, and that Miss AB "copped it" because of his stress. He acknowledges that his behaviour was stupid and said that he would not do such a thing again. He submitted that this behaviour was out of character for him and that he was severely depressed.
He provided a letter from his GP, dated 19 October 2009 stating that Mr BQN "is suffering from major depression", which has been treated with medication over the last four years. His GP said "he has had additional stress this year relating to unfair dismissal by the School."
Mr BQN's explanation for his actions was that he was intervening in the argument between Miss AB and Miss XY, to assist Ms XY whom he had identified as the victim of bullying by Miss AB. In making the calls and leaving the messages, he sought to teach Miss AB a lesson.
Mr BQN had asserted that the messages he left on Miss AB's voice mail were lyrics from a Kevin Bloody Wilson song. He claimed that if they were lyrics to a song then they would be ok for an adolescent to hear as adolescents heard and said a lot worse themselves. However under cross examination he acknowledged that only some of the words were from the song in question, and that others were of his own invention. He maintained that he didn't think the things he said would bother Miss AB. However he conceded that although he had met her a few times he had never spoken to her at any length and so did not really know her.
He conceded that he knew that Miss AB was a teenager although he was not sure of her exact age, although he believed she was younger than Miss XY. He said that prior to leaving the messages he had taken his neighbour and Miss XY to the police but they had said they police were going to do nothing. He agreed that his actions were in retaliation on behalf of Miss XY. He agreed that at the time he made the calls he had not seen the messages from Miss AB to Miss XY, though Miss XY had read some to him. He also agreed that at the time he made the calls he was not aware that Miss XY had been replying to Miss AB's messages in a similar vein.
Given that Mr BQN has not denied the events in question, and there is objective material establishing that he made the calls and left the messages, the Tribunal finds that Mr BQN did engage in this conduct. The Tribunal also finds that the conduct is of a serious nature irrespective of the context in which Mr BQN became involved, or his assertions about Miss AB's indifference to such messages. The Tribunal does not accept there are any circumstances which would make it acceptable for an adult male to leave messages of this nature for a female child.

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

The conduct occurred in July 2009, which is around six years ago.

The age of the person at the time the offences or matters occurred,

At the time Mr BQN was 37 years of age.

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.

Miss AB was 15 years of age. She was vulnerable by virtue of the fact that she is a female child who was subjected to menacing and sexually aggressive voicemail messages from an adult male.

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

There is an age difference of 22 years between Miss AB and Mr BQN. They had minimal prior personal relationship and Miss AB was known only peripherally to Mr BQN.

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

There is no dispute that Mr BQN was aware that Miss AB was a child, although he said that he was not sure of her exact age.

The person's present age,

Mr BQN is presently 43 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred,

Mr BQN was charged with trespass on railway property and stealing in 1995. The stealing offence was proven and dismissed pursuant to section 556A of the Crimes Act 1900. As stated earlier, he was also charged and convicted in the Local Court of the offence stalk or intimidate intending to cause fear of physical or mental harm on 17 December 2009 but his appeal to the District Court was upheld, which means that he has no conviction in respect of that charge.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

The Tribunal considered the likelihood of Mr BQN behaving again in ways which poses a risk to the safety of children. Mr BQN said that he would never repeat the kind of behaviour that he undertook in the trigger incident. He knows he did the wrong thing and he has learnt his lesson and was not in a "good place" at the time, so the behaviour was out of character for him.
Mr XX confirmed at the hearing that his step father's conduct was foolish but that he did not think that it would be repeated.
Ms Mahoney submitted that Mr BQN has consistently sought to minimise his conduct and has demonstrated a lack of insight, raising the likelihood that he has not learnt from his experience as he claims. She also submitted that his impulsive and aggressive behaviour was not out of character. In relation to this, she questioned Mr BQN closely on the incident referred to in Mr BQN's affidavit as the "carjacking". On this occasion Mr BQN drove a van, festooned with streamers and posters around the town area, beeping the horn and playing loud music, apparently trying to draw attention to what he considered to be the poor practices at the School where he had previously worked, and from which he had been dismissed. He commenced various legal proceedings and complaints in relation to this. The day in question was the school's annual prize giving which was being held at the local Entertainment Centre. There was an altercation on the street outside the Entertainment Centre, between Mr BQN and another man who was a parent of a child who attends the school and who is on the Board at the School. The details of the altercation are disputed but by both accounts it involved a certain level of violence and it came to the attention of the police.
Ms Mahoney asserted that Mr BQN's decision to stage his protest at this time and in this way showed a lack of regard for the way in which his actions may impact on the children attending their prize giving day. She submitted that this was further evidence that Mr BQN acts without regard to the impact of his behaviour on others, and that this is consistent with his behaviour in leaving the messages for Miss AB. Ms Mahoney particularly noted that the children attending the School have disabilities and may for that reason be more sensitive to changes and disturbance to their environment than other children. Mr BQN agreed with this but denied that the children were exposed in any way to his protest as they were all in the auditorium at the time. He insisted that he knew that no children saw or heard his protest even though others have said that at least one child, who had left the auditorium was exposed to his protest.
Asked for whose benefit the protest was staged - ie. who did he hope to influence with his actions, He said that he hoped the general public would see him, and that parents who might be arriving late to the prize giving would see him too.
Ms Mahoney put to Mr BQN that he gave no regard to whether the children would see him or be disturbed by his actions and that he had done nothing to ensure that children were not present. Mr BQN denied this, claiming he knew they would not be able to see or hear him.
The Tribunal finds that Mr BQN has no real insight into his conduct. Although he says that he knows leaving the messages for Miss AB was a stupid thing to do, and he acted without thinking, Mr BQN also states that he believes that Miss AB would not have been upset by what he said/did, and that not all young people would be upset by it. He has also maintained there was no objective evidence that Miss AB was harmed by his conduct. The Tribunal was left with the clear impression that he had very little understanding of the impact of an adult male leaving menacing and sexually explicit phone messages for an adolescent girl. He demonstrated no awareness of the power imbalance inherent in that relationship, as opposed to the relationship between two girls of around the same age caught up in a malicious SMS exchange. His assertion that Miss AB was "tough enough" to not be affected by his actions begs the question why he took this action at all if he genuinely believed she would be unaffected by it. He showed seriously flawed judgement in choosing to get involved at all, but particularly given his acknowledgement that at the time he made the calls he had not seen the messages himself (though some had been read to him by Miss XY) and was unaware that Miss AB had been responding in kind to Miss XY's messages.
The Tribunal accepts Ms Mahoney's submission that the "car-jacking" incident provides a relevant example of Mr BQN's continued lack of insight into the impact on children of his impulsive and aggressive behaviour. The suggestion that Mr BQN staged his protest on the day in question for the benefit of the general public and a few parents who might be arriving late to the award ceremony is implausible. The Tribunal finds that Mr BQN chose to stage his protest at that time and at that location because it was the award ceremony for the school, as this would draw more attention to his "cause". The Tribunal finds that Mr BQN's wish to draw attention to his concerns meant that he gave little, if any, regard to the feelings of the children attending their special day. He could not have known, and took no action to ensure that no children were exposed to his inflammatory conduct.
The evidence points to Mr BQN having a number of conflictual relationships in his personal and professional life. He does not dispute this, but says they are all due to other people's actions. Generally it seems that people whose evidence differs from his are lying. Ms Mahoney put to him that whilst it may that he is unlucky given the number of serious interpersonal problems he has experienced, by choosing not to provide evidence such as a psychological assessment; it is difficult to accept that he has not played a part in these conflicts. Without going into the substance of these matters, the Tribunal notes that the evidence does point to him having a retributive approach to problems - such as filing multiple complaints about the School regarding matters which he says were integral to the safety of children, but only taking this action after he had been dismissed.
The evidence also points to him having an impulsive approach - such as filing complaints to multiple agencies about matters on the basis that the initial agency were "doing nothing", but without allowing the initial agency a proper opportunity to do anything. The Tribunal finds that this kind of behaviour is consistent with his impulsive and retributive actions demonstrated in the trigger event. On that occasion he said that he decided to call Miss AB himself to teach her a lesson (see how she liked getting these messages) because the police and the school were "doing nothing", although the evidence indicates that both of these organisations had only been told of the problem that morning. It is also consistent with his actions in staging the protest in town, without regard to the way his actions might affect the children he claimed to be protecting.
Although Mr BQN said that he is in a "much better place" now and so would never do anything like this again he presented no evidence to support this. Mr BQN told the Tribunal that he can't afford to pay a psychologist to do a report, but did not provide anything even from his GP regarding his current psychological state. Mr BQN confirmed that he has had no counselling, despite referring to having been severely depressed, rejecting the idea that he has had any difficulty with his behaviour or responses to events for which counselling could provide any assistance. The Tribunal noted that the unfair dismissal matter is still on foot. Clearly this remains a stressor for Mr BQN.
The Tribunal finds that Mr BQN's conduct in the trigger event was not an isolated incident and that similarly harmful behaviour is likely to be repeated. Based on the evidence discussed above, the Tribunal finds that Mr BQN's lack of insight and combative and inflammatory personal style does pose a risk to the safety of children because he has demonstrated that he will put his interests and desire for retribution ahead of concerns about the impact of his behaviour on children.

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

Under this heading in his submission, Mr BQN details concerns about the procedures of the OCG and he asks that evidence from the Department of Education and Training be disregarded. As it happens the Tribunal has not had regard to this evidence because but did not consider that it was necessary to do so. Mr BQN also summarises his submission that at the time of the trigger offence, he was under a great deal of pressure because of his negative experiences in his employment and that because of this he "foolishly decided" to call Miss AB and leave the messages in question. However he restates that he did not believe that the messages would "particularly concern" Miss AB. He does not consider that he is not a risk to children.

Any other matters that theChildren's Guardian considers necessary.

The matters referred to in the OCG's written submission under this factor have been addressed under earlier factors regarding the likelihood of Mr BQN repeating the conduct in question.

Conclusions and Orders

As set out above, the issue for determination is whether, on the material before it the Tribunal is satisfied that Mr BQN poses a risk to the safety of children. If the Tribunal is not satisfied of this, then subs 18(2) of the Act provides that he must be granted a clearance.
There is no presumption that Mr BQN poses a risk to the safety of children, but the safety, welfare and well-being of children is the paramount consideration in determining this application. The Tribunal has already found that the conduct Mr BQN engaged in was serious and was highly likely to cause harm to a child. The Tribunal finds that Mr BQN's ongoing failure to recognise the effect his conduct had on the victim, shows a lack of insight into his behaviour. The Tribunal finds this lack of insight of significant concern. It is directly relevant to the question of whether Mr BQN poses a real and appreciable risk to the safety of children.
As explained above, the Tribunal also finds that given Mr BQN's impulsive and retributive conduct in the past, it is likely that he will engage in other conduct in the future which may be harmful to children. As such the Tribunal finds that Mr BQN poses a risk to the safety of children and on this basis his application for a clearance cannot be granted. It must be refused.
Accordingly, for the reasons stated above, the Tribunal finds that the correct and preferable decision is to refuse the applicant's application for a clearance.
On the basis of this finding I order: 1. The decision of the respondent is 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: 08 October 2015

Child Protection (Prohibited Employment) Act 1998(NSW)

(Repealed) Child Protection (Working with Children) Act 2014(NSW)

Commissioner for Young People Act 1998(NSW)

OCG (Administrative Decisions Review Act 1997(NSW)

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (8)