CEW v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-04-20

Introduction

The applicant, who will be referred to as CEW in these proceedings, has been refused a working with children check clearance by the Children's Guardian, who is the respondent in this matter. CEW has applied to this Tribunal for a review of that decision.
The notice by the Office of the Children's Guardian advising the applicant of the refusal of his application for a working with children check clearance is dated 17 September 2015. In his application for review to this Tribunal, which was filed on 9 October 2015, the applicant stated that he received notification of the decision on 17 September 2015. This means that he has applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Child Protection (Working with Children) Act 2012.
The role of the Tribunal is to reach "the correct and preferable decision having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Evidence

The respondent and the applicant have both placed material before the Tribunal. The applicant gave oral evidence before the proceedings.
Details of the relevant evidence are provided below.

Risk Assessment Report by the Children's Guardian dated 11 March 2014

As set out above, a risk assessment was prepared by the respondent on 6 August 2015 recommending that the applicant be barred from being granted a working with children check clearance. This recommendation was endorsed by a panel review of the Office of the Children's Guardian on 11 August 2015.
The circumstances of the relevant allegations against the applicant are set out in the risk assessment and can be summarised as follows.
In relation to the 1998 allegation, it was alleged that, whilst the applicant was on evening duty at the residential facility, he had been lying on one of the boy's beds in order to settle him at bedtime.
In relation to the 2002 allegation that the applicant had provided inappropriate sexual material to one of the boys in his care, the publication in question was an educational book about sexuality.
The following further allegations were raised in the assessment report:

that the applicant had been advised not to give leg massages in the bedroom;
that he had been found reading to a boy about sexuality in the boy's bedroom;
that the applicant had failed to report a disclosure of sexual abuse by a boy to his supervisor in a timely way;
that he had spoken to one of the boys about masturbation;
that, whilst employed in the residential unit, the applicant had given the boys his personal contact details which was in contradiction to the residential unit's policy.
that the applicant had maintained contact with some of the boys after they left the program without the authorisation or consent of management of the residential facility.

Following an investigation by the NSW Ombudsman, the 1998 allegation that the applicant had been discovered on a boy's bed was sustained as improper conduct. The 2002 allegation that the applicant provided a boy with inappropriate reading material of a sexual nature was not sustained by the NSW Ombudsman.

Material provided by the NSW Ombudsman

In 2000, the NSW Ombudsman received notification that CEW had:

intentionally tripped a 14-year-old child;
bent three of the child's fingers back; and
twisted the child's arm up behind his back.

The second allegation was sustained with the first and third not sustained due to insufficient evidence.

Evidence by the applicant

In a written statement provided to the Tribunal, the applicant described himself as a practising Catholic who, as a young man, had sought entry into the priesthood but had been advised to first gain some life experience. He studied to become a youth worker and began working at school vacation camps. He was later appointed to a government youth advisory role.
He confirmed that he had worked as a casual residential carer in a boys' residential facility. His role involved supervising the boys out of school hours including during their recreation time, meals, homework time and overnight. He later became co-ordinator of one of the units of the facility. Between 2000 and 2002, the residential facility underwent a restructure. The applicant disagreed with elements of the restructure, which eventually resulted in him leaving the facility.
Both in his statement and in oral evidence before the Tribunal, the applicant confirmed that he has been working as a delivery truck driver since the refusal of his working with children check clearance. Prior to the refusal, he had been working with young cadets aged between 12 and 19 years. He confirmed that in his position working with the cadets, he would take the young people away on weekend and weekly retreats.
He confirmed that after he had left the residential unit, he had been employed in a school where he dealt with children ranging between Year 7 and Year 12. He also trained referees in Rugby League, whose ages ranged from 13 years to adult.
Additionally, he had been a bus driver for children and, depending on the job, had been driving between 50 and 200 children. He has also been a sports coach to primary aged children.
In relation to the 1998 allegation that he had been lying on a boy's bed, he told the Tribunal that he had not actually been lying on the bed but had been sitting on the bed with his arm propping him up. He confirmed he always made sure that the doors were opened in the boys' bedrooms when he was inside. He denied ever closing the doors to the boys' bedrooms while he was there. That evening, he had entered the boy's bedroom because the boy had trouble settling. Apart from the bed, there had been a wardrobe and a desk with a hutch and a chair in the bedroom. On the chair had been a bowl of hot water with Vicks inside it, which was used as a settling ritual for the boy who regularly experienced difficulty in going to sleep. It was for this reason that the applicant was unable to sit on the chair. Although he denied that it was the policy of the residential facility at the time not to enter the boys' bedrooms or read to them at night, the applicant agreed that he should not have been on the bed and accepted that the complaint made was reasonable in the circumstances.
The applicant explained the circumstances leading up to the 2002 allegation that he had provided inappropriate sexual material to one of the boys at the residential facility. He told the Tribunal that whilst on evening duty, he and a colleague had discovered one of the boys with a Penthouse magazine, which they had confiscated as it was against the policy of the residential unit to possess pornography. The applicant indicated that he and his former colleague (who gave evidence in these proceedings) took the boy aside and spoke to him about why the magazine was being confiscated. The boy told that that he read the magazine to learn about 'sex and stuff'. As a means of calming the situation, the applicant had given to the boy one of the books that was contained in the staff room in relation to sexuality. These books were education resources that were aimed at young people. He told the Tribunal that it was practice for the boys to be given access to these books. He noted that the child in question had requested one of the more complicated books on this area and that the applicant had tried to dissuade him from that because he thought it would be beyond his reading ability.
The applicant only became aware that his actions in providing the book to the boy had attracted negative attention when he received a letter from the then head of the residential facility. Under cross-examination before the Tribunal, he was hard pressed to explain how he could have handled the situation differently. He noted that the child had locked himself in his bedroom and he was anxious not to exacerbate an already difficult situation. He agreed that some of these books in the staff room had been books he had supplied to the residential facility.
In relation to the allegation that he had provided contact details to boys at the residential unit, he told the Tribunal that he had stamped his post office box number on some of the books he had provided to the school so that they could later be returned to him. As a result of this, one of the boys had communicated with the applicant after he had left the residential facility. The applicant agreed that it was valid criticism that he should not have had his post box number on books that were available to the children at the unit.
In relation to the allegation that he had maintained contact with boys after they had finished the program at the residential facility, it is his recollection that the specific incident raised referred to a visit by one of the residents after he had left. After the boy had left the facility, his mother had thought he needed a period of no contact with the unit itself. In this case, the child asked to come to dinner at the unit. When this happened, the applicant had a conversation with the mother who then gave her permission for the child to come to dinner on that occasion. He agreed that in the circumstance, it would have been prudent for him to have cleared his decision to allow the child to come to dinner at the unit with management.
In relation to ongoing communication with boys who had left the residential facility generally, the applicant denied that the expectation of the residential facility was that there should be no contact outside of the work environment. He agreed that he had some communication with some of the boys after they had left the facility. This included calling up on their birthdays or checking up on them when, for example, they were changing schools.
He denied ever having given leg massages to any child. He told the Tribunal that he would remember had he done so and he explained that he wouldn't have engaged in any such behaviour that would put him at risk.
In relation to the allegation that he had read to a child about sexuality, the applicant clarified that it was the child who had been reading to him and that the book in question was a book called What's Happening to my Body which was an educational book about puberty. During this incident, he told the Tribunal that he would have been sitting on the chair while the child was in bed. He clarified that it was this child who had later disclosed that he had been sexually abused. He told the Tribunal that he had reported this disclosure to management the following day.
In relation to the allegation that he had spoken to one of the boys about masturbation, he told the Tribunal that he could not remember such a conversation taking place.
In relation to a psychological report for the applicant prepared prior to his employment with cadets in the military, the applicant denied that he had knowingly failed to disclose the 1998 incident in relation to being on the complainant's bed. He told the Tribunal that he could not remember if he had been asked anything requiring him to answer such a question and would need to see the question asked in order to answer in more detail. He accepted that he didn't disclose that incident but did not accept that it should have been disclosed.
In relation to an incident which involved a door being slammed in the residential unit, he denied having lost his temper with the child in question. He denied intentionally bending back the fingers of a student at a student camp in 2000, stating that the boy had collided with him and the applicant had blocked him to avoid sustaining injury himself.

Oral evidence by the applicant's former colleague

The applicant's former colleague ('the former colleague') provided a statement to the Tribunal in support of the applicant. She also gave oral evidence to the Tribunal.
The former colleague is an education teacher who has worked at the residential facility since 2000, when she first met the applicant.
She gave evidence in relation to the 2002 incident in which the applicant was alleged to have provided inappropriate sexual material to a boy at the residential facility. She agreed that there were a lot of books in the office they allowed the children to read in relation to puberty and sexuality. She told the Tribunal that she had also brought in books for the children to use.
She told the Tribunal that at night she would sit outside the boys' bedrooms to read but only because she had earlier been pulled up about being in the boys' bedrooms.
In relation to the allegation that the applicant had being sitting on one of the children's beds, she explained that the young men in their care can become quite upset and even though it is not policy, sometimes the staff enter the bedroom because they need to console them. She explained that in the difficult work they do, it is easy to put yourself at risk when you dealing with children who are trying to regulate their own emotions. She agreed that the practice was to keep doors open in the residential facility.
In relation to the practice of contacting boys after they had left the program, the former colleague explained that even now, there are no after care systems and that if she had concerns about one of her former charges after they had completed the program, she would ring to check the child's well-being. She confirmed that she still has some former students who come to visit even though they left over four years ago. She confirmed that it is now practice that this be done with the consent of management at the facility. She denied that this had been the practice previously when there had been a lack of parameters in the environment and no specific guidelines to assist staff as to how to behave.
The former colleague explained that the applicant had often raised issues with management, which had caused disruption and some conflict between the applicant and the then director. The former colleague felt that the applicant had been dealt with unfairly by management and to this end she had written to the Director of the Program and then to the Archbishop to complain about his treatment.

Statement by former rector of the residential facility

In a statement dated 9 February 2016 which describes his dealings with the applicant at the residential facility, the facility's former rector describes the applicant as 'diligent and professional in his relationship with staff, students and their families...very approachable and friendly, always courteous and engaged in the life of [the residential facility].'
The former rector described his trust in the applicant and explained his view of the allegations made against the applicant: In the time I have known and worked with [the applicant], I've never questioned his dealings with the young people entrusted to his care. He always showed a high level of professionalism and integrity in this ministry. There were some issues of concern brought up by then director. [The director's] relationship with [the applicant] was not wholesome. [The applicant] spoke his mind at staff meeting is in gatherings, open questioning some of the educational and formational elements been brought forward by Management. His questions were not taken too kindly, and as a result, it seems from my perspective that [the director] had a certain dislike for [the applicant]. The director seemed to be looking for material to use against [the applicant], as a means of making him redundant.
The former rector also noted that 'the integrity of [the applicant's] work ethos and ability is sustained from the fact that no criticisms or questionable issues were raised' during his subsequent employment.
The former rector attended the proceedings before the Tribunal but was not required for cross-examination by the respondent.

Oral evidence by Ms Harries, psychologist

Ms Melissa Harries, psychologist, prepared a brief report on the applicant for these proceedings. She noted that in 2001 the applicant had been assessed as suitable to work with youths as an Officer of Cadets. At that time, he had disclosed the earlier allegations made against him during his employment at the residential facility. Having considered this disclosure, Ms Harries noted that the then assessing psychologist had determined that the applicant posed 'NIL concerns' and 'appeared to be an upstanding member of society.' The applicant was described as a 'suitable role model for young people'.
In her report dated 10 February 2016, Ms Harries stated that the applicant presented to her in a similar manner and that, on the basis of his presentation and reported history, she was of the view that he was suitable to work the children.
In oral evidence before the Tribunal, Ms Harries agreed that in preparing her report for the applicant, she interviewed him for his background and made an assessment of his current functioning. She agreed that she wasn't an expert in the assessment of risk and that a forensic psychologist would be required for that. On the material before her however, she was able to state that there she saw no reason why the applicant should not be employed to work with children and that there was no material before her that might raise concerns in that regard.

Consideration of the evidence

The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. In determining a risk assessment, the Children's Guardian "may consider" matters set out in section 15 (4) of the Act. Both subsections address the same considerations using slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to consider both sections 30 (1) and section 15 (4) of the Act.
The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar - s30 (1)(a)

There are two matters that caused an assessment namely:

that in 1998, while a worker at the residential facility, the applicant had been discovered lying on a boy's bed;
that in 2002, while still a worker at the residential facility, the applicant had provided a boy with inappropriate material of a sexual nature.

Whilst these allegations may appear to describe concerning behaviour by the applicant, on the evidence before it, Tribunal is not satisfied that this is the case.
In relation to the 1998 incident, the applicant has provided a reasonable explanation as to why he was in the boy's bedroom - he was settling a child who had difficulty sleeping - and why he was on the boy's bed - the child's bedtime ritual involved going to sleep near a bowl of Vicks which occupied the only chair in the room. There is no evidence to contradict the applicant's evidence that he was sitting, rather than lying on the bed, with his arm propping him up, and that the bedroom door was open at all times. Indeed, it would appear that it was only with the bedroom door open that the applicant could have been seen by the colleague who later reported the behaviour.
The Tribunal accepts that whilst as a self-protective measure, the applicant would have been better advised to have remained outside the boy's bedroom when attempting to settle him, the Tribunal is not satisfied that the applicant's actions were in any way indicative that he posed a risk to the boy in question.
In relation to the 2002 incident, the applicant has not sought to deny that he provided educational material to a boy concerning issues of sexuality but had clarified his reasons for doing so. On the evidence before it, the Tribunal accepts that by providing the material, the applicant had successfully diffused a potentially difficult situation during which pornography had been confiscated from the boy in question, by replacing it with educational material generally made available to the boys. The applicant's evidence in this regard was corroborated by his former colleague who was cross-examined by the respondent. No-one was called by the respondent to dispute this evidence.
In relation to the 2002 allegation, on the evidence before it, the Tribunal is not satisfied that the applicant's actions were in any way inappropriate or revealed him to pose a risk to the boy in question
In relation to the additional allegations against the applicant, namely that he had failed to report a disclosure of sexual abuse; had spoken to a boy about masturbation; had provided contact details to the boys; had maintained contact with former residents of the residential facility; and had tripped up a child, bent his fingers and twisted his arms, the Tribunal makes the following findings:

on the evidence before it, the Tribunal accepts the applicant's evidence that he reported the relevant disclosure of sexual abuse within a day;
on the evidence before it, the Tribunal cannot be satisfied that the applicant ever discussed masturbation with a boy at the residential facility;
on the evidence before it, the Tribunal is satisfied that the applicant did not intentionally provide his contact details to boys at the residential facility. The Tribunal accepts that he included a post office box number on books he had lent to the residential facility to try to ensure their return to him;
on the evidence before it, the Tribunal accepts that the applicant may have maintained contact with former students at the residential facility but is not satisfied that, at the time, this was in breach of management orders. On the evidence provided by the former colleague, the Tribunal is satisfied that it was not uncommon for workers to check on the progress of their former students;
on the evidence before it, the Tribunal cannot be satisfied that the applicant ever intentionally tripped up one of the boys at the residential facility nor that he bent his fingers back or twisted the boy's arm.

The period of time since those offences or matters occurred and the conduct of the person since they occurred - s30 (1)(b)

The allegations were made and dealt with in 1998 and 2002. There is no evidence before the Tribunal that any complaints have been made against the applicant since that time.

The age of the person at the time the offences or matters occurred -s30(1)(c)

The applicant was 29 years old and 33 years old at the relevant times.

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 - s 30 (1)(d)

In relation to the first allegation, the age of the child is unknown. In relation to the second allegation, the child was 14 years old.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person - s30 (1)(e)

The relationships in both instances were one of mentor and supervisor. In relation to the second allegation, the applicant was 33 years old and the child was 14 years old.

Whether the person knew, or could reasonably have known that the victim was a child - s 30 (1)(f)

The applicant knew the boys were children.

The person's present age - s30(1)(g)

The applicant is now 47 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred -s30 (1)(h)

The applicant has no criminal record. His conduct since the 2002 allegation has been unremarkable.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition - s30(1)(i)

The applicant has continued to hold a series of child-related positions since 2002 and over a period of 14 years, there have been no complaints in relation to his conduct.
On the evidence before it and on the basis of the findings set out above, the Tribunal is not satisfied that the applicant has ever posed a risk to children. In reaching this conclusion, the Tribunal notes the opinion of the psychologist Ms Harries and, in particular, her conclusion that he is suitable to work with children. The Tribunal has also been assisted by the evidence of the applicant, who impressed the Tribunal as a truthful witness, and by the evidence of the applicant's former colleague and the former rector of the residential facility. The Tribunal accepts the evidence of the applicant's former colleague that the work of carers at the residential facility is inherently difficult and of great value to the children residing there. On the evidence before it, the Tribunal cannot be satisfied that the applicant's behaviour at the residential facility was ever such as to pose a risk to the children in his care.

Any information given by the applicant in, or in relation to, the application-s30 (1)(j)

The Tribunal has considered all evidence provided by the applicant.

Any other matters that the Children's Guardian considers necessary -s30(1)(k)

It is the submission of the Children's Guardian that when considered as a whole, the applicant's conduct amounts to a real and appreciable risk to children.
The Tribunal does not agree with this. On the evidence before it and for the reasons provided above, the Tribunal is not satisfied that the applicant poses a real and appreciable risk to children.

Conclusion

Having considered all the evidence before it and having taken into account those issues set out in s30(4), the Tribunal is not satisfied that the applicant poses a real and appreciable risk to the safety of children and should therefore receive a working with children check clearance.

Orders 1. The decision of the respondent is set aside. 2. In substitution for that decision the following decision is made: The applicant is granted 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 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: 03 August 2016

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Cases Cited (4)