CBG v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-10-07

e Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CBG (Applicant) Children's Guardian (Respondent) Representation: Counsel: G Moore (Respondent)

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 1510342 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Introduction

This matter is an application commenced on 16 June 2015 seeking administrative review or appeal of a decision by the Children's Guardian which was notified to the applicant on 22 May 2015. The Children's Guardian informed the applicant who is referred to as "CBG" in these proceedings, that due to his conviction on 13 June 1986 of an offence of assault person under 16 with act of indecency under the then section 61E of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children check clearance. The applicant was sentenced for that criminal matter to $500 and a three-year good behaviour bond. The offence is one which is specified within Schedule 2 of the Child Protection (Working with Children) Act 2012 ("the Act").
On 25 June 2015 when this matter was first listed for hearing of the stay application brought by the applicant, an order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. This order has continued.
The matter was heard on the 25 June 2015 for the application for a stay of the decision of the Children's Guardian, which application was refused. A Notice of Interim Decision was provided to the applicant by the Divisional Registrar on 10 July 2015. Directions were made for the provision of evidence and the matter was set down for hearing on 7 October 2015. The applicant was directed to file any further evidence, referring specifically to a risk of harm psychological or psychiatric expert report, if any, at the latest by 7 September 2015. The respondent was directed to file and serve any material in reply by 14 September 2015.
The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to drive buses which will contain schoolchildren as passengers. An enabling order would permit the applicant to work with children in any child-related work. The respondent opposes the application for an enabling order.

The Evidence

The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows: 1. Application filed 16 June 2015 attaching a letter from the Children's Guardian dated 22 May 2015, and the application for Stay or Interim Order: Exhibit A1; 2. Copies of letters provided by the applicant evidencing approval by the Transport authority to drive a bus despite his conviction, including a reference from the applicants deceased wife: Exhibit A2; 3. Bundle of documents filed by the respondent on 18 August 2015: Exhibit R1; 4. Bundle of further documents filed by the respondent on 29 September 2015: Exhibit R2;
There was no objection maintained by either party to the receipt of this evidence by the Tribunal.
The applicant gave oral evidence and was cross-examined.
The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided by the respondent.
A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

The Act came into force on 15 June 2013.
The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.
The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.
There is no relevant definition of "child abuse" contained in the Act.
However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of "child and young person abuse" has been created in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence created by the section reads as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units"
In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth).
The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(d) of Schedule 2 of the Act. Therefore, the applicant is treated as a "disqualified person". By reason of section 18 (1)(a) of the Act the Children's Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. The applicant is relevantly for the purposes of the Act now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was an indecent assault upon an adult woman in the circumstances referred to later in these reasons.
The applicant seeks a working with children clearance to work with children because he has worked as a bus driver.
An enabling order is therefore sought pursuant to section 28 of the Act which provides: "28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (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 revoke an interim bar or 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."
The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act.
A person is not permitted to engage in "child-related work" unless they hold a working with children check clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work, or work which requires him to attend places where children are located, which therefore requires that the applicant obtains a working with children check clearance.

Standard of Proof and Onus of Proof

It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children's Guardian [2015] NSWSC 523.

Required Considerations

The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters 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) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal."
The Children's Guardian received information pursuant to section 31 of the Act from the applicant's employer and various government agencies, including the police and the courts. That information was tendered in evidence and referred to earlier in these reasons: Exhibits R1-R4.
It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children's Guardian, at [4], [25], [27].
The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.
The discussion which follows is repetitive of matters set out in earlier judgements of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children's Guardian. The law applied to this decision is therefore set out in these reasons.
In determining whether the applicant does pose a risk to children it is accepted that the risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children's Guardian [2015] NSWSC 523 esp at [26], [27].
In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). ... [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.
In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant has not been convicted of any other offences.

Other matters

The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced under section 61L of the Crimes Act 1900 (NSW) on 27 September 1996 in the Local Court and, on appeal, the conviction and the sentence was confirmed on 8 July 1997 in the Parramatta District Court: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW).
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: 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] NSWIR Comm 101 at [130].

Consideration of the evidence

The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

The offences were serious and a grave breach of the filial relationship. The 3 offences occurred over a period of 12 months.
The applicant enjoyed a position of trust which he abused.
Summary of the events is contained in the police facts. On the first occasion with which the applicant was charged, the applicant wife was away and the applicant's daughter awoke to find herself lying down on top of the applicant in his bed. He asked whether she would be more comfortable with her pyjamas off. The applicant was moving up and down under her. The following night the applicant came to bed naked and his daughter was in his bed. He tried to take her pyjamas off and moved up and down on top of her with his penis on the outside of her pyjamas. On the third occasion while on holiday with her father the father came into the room in which she was sleeping. The applicant placed himself on top of his daughter and moved up and down with his penis on top of her vaginal area. The police when they interviewed the applicant put the allegations to him. The applicant did not dispute the allegations and asserted that he had been drinking heavily and became sexually aroused with his daughter in his bed.
The applicant pleaded guilty to the charges before His Honour Judge Badgery-Parker in the District Court and relied upon a report of Dr Murugesan, a consultant psychiatrist employed by the Army. The applicant also saw Dr Cook a psychiatrist attached with the Department of Health.
The victim alleged in her statement that at the time of the first two offences: "Dad told me, 'Promise not to tell anyone, not Mum, because if you do I won't be able to see you anymore.' I did not tell Mum when she came back because I was too scared." Exhibit R1 page 68.
The applicant then committed the further offence later when his daughter came to visit him and they went on holiday together. During the time of the first two offences the applicant said: "The only reason I am doing it is because you remind me of your mother..." And at the time of the third offence he said to his daughter while he was abusing her: "You remind me a lot of your mother..." Exhibit R1 pages 68, 69. In answer to the police questioning the applicant responded that he remembers saying to his daughter "...please do not say anything because they would not understand". Exhibit R1 page 62.
The psychiatrist to whom the applicant was referred through the Army, Dr Murugesan questioned the applicant about the allegations and received confirmation that the events occurred essentially as recorded in the police record of interview. The applicant had been seeing the psychiatrist because of the history of depression arising out of use separation from his wife. The applicant had attempted suicide by taking an overdose of medication at the beginning of 1984. The applicant had been drinking alcohol and abusing it. The applicant reduced his alcohol intake and formed a new relationship. The applicant told the psychiatrist that he was ashamed of what he did to his daughter and generally felt that he would not have the courage to face his children again. It was assessed by that psychiatrist that the applicant's "frame of mind contributed to his unusual behaviour". The applicant left the Army in 1996.
Dr Cook assessed the applicant regarding his suitability for counselling as a result of the charges in relation to his daughter. At that time the applicant had formed a new relationship with his second wife. The applicant chose not to see his children from his first marriage apparently on the basis of shame and guilt and because of their rejection of him. The psychiatrist considered that the applicant's past behaviour did not contribute a significant risk for the welfare of the children in his care. The psychiatrist offered family therapy in order to repair the family relationships and to minimise the long-term sequelae of incest, for all the parties involved. The psychiatrist recognised that in the current socio-legal environment surrounding the issue of incest that approach appeared to be discouraged.
There are no more recent reports from any relevantly qualified person.
The offences are very serious.

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

The offences of indecent assault occurred some 30 and 31 years in the past.
The conduct of the applicant since that time has not come to the attention of the police and has not been convicted of any other offences.
The lapse of time between the offences of indecent assault and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. However, it is apparent on the evidence that the applicant has no understanding of the reasons for the offending behaviour and is therefore unlikely to be able to determine whether circumstances which then prevailed might lead to further offences currently or in the future.

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

The applicant was aged 33 and 34 at the time of the offence of indecent assaults.

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

The victim of the indecent assault was aged 10 and 11 at the time of the offence.
The vulnerability of the victim was not only due to her age. She is the daughter of the applicant.
The victim was vulnerable and was entitled to expect that she would not be indecently assaulted by her father, and on more than one occasion.

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

The difference in age between the victim of the indecent assault and the applicant was 23 years. The victim is the applicant's daughter.

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

The applicant knew that the victim was a child because she is his daughter.

The person's present age

The applicant is currently 65 years old.

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

The applicant has no criminal record other than the offences which render him a disqualified person.
The applicant has apparently behaved in a prosocial ways since the offences.
Since the offences the applicant remarried and helped raise his new wife's children. The applicant has been a bus driver in association with children from a number of years and considers them to be precious cargo. The applicant ensured, prior to the imposition of the bar, that the children got safely to and from school.

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

The applicant relies upon the evidence of himself, his deceased wife in her letter, and his adopted stepdaughter to support his assertions that he does not pose a risk to children.
The applicant has not repeated the offences of which he was convicted. Those offences were indecent assaults upon his daughter. The daughter told the police in her statement the following: "Dad has not done anything to me since then because I have not seen him. I was worried about it and I was getting headaches and having bad dreams and just not sleeping very well so I decided to tell mum about it the other Friday, I told her on Friday, 11 October. I did not want it to happen again. I do not want to see him again because of what he did." Exhibit R1 page 69.
The impact upon children of a repetition of those offences would be not only frankly abusive, but also deleterious to the healthy development of those children. It is not known what the long-term consequences have been for the applicant's daughter. It is presumed that she is unlikely to have completely recovered from this serious breach of trust.
There has been no reported repetition of concerning conduct.
The applicant told the Tribunal that he did not know what his problems were when the offences occurred and does not understand why he committed the offences. The applicant's second wife is now deceased. It is to be recalled that the breakdown in the relationship with his first wife led to the applicant behaving in the manner he did. The applicant became dependent upon alcohol or at least abused it to excess. The applicant has not provided evidence about his current mental health, his current alcohol status, or any preventative measures that he has adopted to ensure that no inappropriate behaviour is repeated. The applicant has shown no insight into the effect of the offences on his daughter. The applicant has shown no insight into his offending behaviours.

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

The applicant has provided some information including a reference from his current employer, and his adopted stepdaughter gave evidence in his favour in support of the granting of the application. That adopted stepdaughter lives in the same town as the applicant with her 5 children. Their ages range from 13 to 2 years old and 3 of those children are girls. The adopted stepdaughter was born just prior to the offence committed by the applicant.
The adopted stepdaughter lived in Queensland for 6 years returning to live in the same country town as the applicant about 5 years ago. The evidence that the adopted stepdaughter gave was that she was in a violent marriage in Queensland having married at the age of 18. The applicant spends a lot of time at his adopted stepdaughter's place helping out with the children. The applicant did not speak to the adopted stepdaughter about the offences he committed against his biological daughter. Once told of the offences, under questioning the adopted stepdaughter said she did not understand why the applicant's former wife and the child's mother permitted contact between her and the applicant to occur.
The applicant tended to minimise the offences and gave the impression that he thought his daughter was encouraged by his former wife to make the complaints she did. The stepdaughter also appeared to minimise the offences and appeared to question whether the offences actually occurred.
The applicant also provided some correspondence from 2008 written by his second wife whom he married in 1986. That correspondence was in support of the applicant maintaining his bus drivers' licence.
The applicant did not provide any psychological assessments or similar evidence in support of his application.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian submits that the applicant's conduct involved serious abuse of his 10-11-year-old daughter. The respondent submits that the applicant has not discharged the onus to prove that he does not pose a risk to the safety of children.

Consideration and determination

The applicant is now a relatively mature man.
The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the indecent assaults was apparently unplanned and opportunistic and exhibited a lack of self control and incapacity to implement any strategies to prevent re-occurrence. The applicant has not been able to show that he has the capacity to prevent repetition of the offences.
The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse.
There is a lack of evidence of mitigating factors such as examination of the reasons for the behaviours towards his daughter. There is little evidence of genuine and sustained effort to remedy the offending behaviour other than by avoidance of the topic. There has not been a commencement of an examination of the motives or reasons leading to the serious breach of trust.
Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is very little remorse expressed by the applicant, and it would appear that there has been no endeavour to heal the emotional and psychological scars which must have been caused by this terrible disruption to the relationship between the applicant and his daughter.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.
The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.
The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 22 May 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian and for an enabling order filed 16 June 2015 is otherwise refused and dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 24 December 2015

Child Protection (Prohibited Employment) Act 1998(NSW)

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Judgment (24 paragraphs)

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Cases Cited (29)