CFH v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-03-30

ustoms (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CFH (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Tanevski (Applicant) V Hartstein (Respondent)

Solicitors: McGrath Dicembre & Company (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510657 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any children or 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

The applicant is known as "CFH" in these proceedings. On 21 October 2015 the applicant filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 24 September 2015, to refuse his application for a Working with Children check clearance. The respondent determined that the applicant poses a real and appreciable risk to children. That decision is the subject of this review.
The Act came into force on 15 June 2013. The parties conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter.
The applicant applied for a working with children check clearance on 30 January 2014.
In a letter from the Children's Guardian to the applicant dated 24 September 2015 which also provided reasons of the same date, the applicant was informed that the Children's Guardian decided that he poses a risk to children. The applicant wishes to be employed as a paramedic or Fire and Rescue Officer. The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work" and restricting him from working in those chosen areas: section 6 and section 8 of the Act; clause 6 of the Child Protection (Working with Children) Regulation 2013.
The application for review was heard by the Tribunal on 30 March 2016.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is 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 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively to the grant of a conditional clearance for this and the additional reasons set out in this decision.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.
The Tribunal has been assisted by the oral submissions of the counsel for the parties.

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Application filed 21 October 2015 including letter dated 24 September 2015 and reasons from the Children's Guardian - Exhibit A1; 2. Affidavit of the applicant filed 27 January 2016 -Exhibit A2; 3. Affidavit of the mother of friends of the applicant: she has known him for eight years - Exhibit A3; 4. Affidavit of a friend of the applicant who was present when the incident that resulted in the applicant facing charges occurred.-Exhibit A4; 5. Affidavit of another friend of the applicant who was present time of the incident which led to charges against the applicant-Exhibit A5; 6. Report of Dr Paul Pusey, psychologist, dated 31 January 2016-Exhibit A6.
The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 30 November 2015, comprising 71 pages - Exhibit R1; 2. Volume of documents produced under section 31 of the Act comprising 33 pages- Exhibit R2.
The applicant gave oral evidence and was cross-examined on 30 March 2016. The applicant's psychologist, Dr Pusey, was not cross examined.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is 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."
The object of the Act is set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
The applicant was properly the subject of an assessment due to the provisions of clause 1(1)(b) of schedule 1 of the Act which reads as follows: 1 Offences (1) Proceedings have been commenced against a person: (a) ….. (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.
The offence with which the applicant was charged is committing an act of indecency with a person under 16 years of age, contravening section 61N(1) of the Crimes Act 1900 (NSW). The sentence for that offence is currently a maximum of 2 years imprisonment. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (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 form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but 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 Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD 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 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "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 9, 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). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "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."
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

The Issue

As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act provides as follows: 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 evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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 applicant is not a disqualified person.
The applicant is alleged to have placed his head in the groin area of a young girl. The applicant is also alleged to have rubbed the girl on her shins. The matters which caused the assessment trigger for the applicant's clearance application are at a lower level of seriousness for the offence with which he was charged.
The offence with which the applicant was charged is one which constitutes 'abuse' of a child in terms of the definition in the Act.
The alleged victim signed the police notebook on the night of the report to the police and a statement was prepared. It was alleged that the day before the incident which led to the charge in January 2011, the applicant met the complainant and her friend at the caravan park in which they were all staying, because her friend knew one of the five drunken males in the group with which the applicant was socialising the previous Sunday evening.
In the morning of the Monday, the day of the conduct leading to the offence with which the applicant was charged, the applicant saw the complainant and her friend at the swimming pool. The applicant asked them both how old they were and they told him they were 15 and 14 years old respectively. The applicant asked both the complainant and her friend whether they would like to give him a massage and they negatively responded.
There was some further interaction during the day when the applicant is alleged to have said to the complainant: "Hey I don't like you chatting with that other guy, stay with me. What are you girls doing tonight?" The complainant and her friend told the applicant that they would probably go to the beach. They had been obtaining fake tattoos prior to the conversation.
The complainant and witness later went to the pool. The applicant was in the spa. The applicant said: "Where is your tattoo, on your arse?" The female witness said sarcastically: "Oh yeah." The applicant said: "Oh don't worry, I'll see them later tonight." The witness said: "Oh no you won't." The applicant said: "No I mean you can show me when I get out of the spa." The witness said: "No you won't be seeing anything."
At around 8:45 pm the complainant and her female friend were at the beach with a group of friends. The complainant said that the applicant appeared to be drunk. The applicant was also at the beach with a group of friends. The applicant said "Hey girls!" and kissed them both on the cheek. The applicant said to the complainant: "Come over here I have to tell you something, I think tonight you should go to your caravan, sneak out and come with us. We can go to a warm spot and I'll bring you drinks. Go ask [the female witness]." The complainant went and spoke to the witness, then went back to the applicant and said: "No, we're 15. We have to go back home, find some other girls." The complainant and witness went and sat in the lifeguard stand with some friends.
The applicant also went to the lifeguard stand with a cask of wine and sat at the entrance blocking the exit from the stand. The applicant said: "Come sneak out with us." The witness said: "No, there's heaps of other girls, go choose them." The applicant kept asking with a negative response. The applicant said: "Are you girls virgins?" The complainant said: "Of course we are, we're 15 and 14". The applicant said: "Don't let your age get in the way of your desires for me. Do you like my tattoos?" The complainant said "They're okay." The applicant said: "Well then at least I know that's a turn on and we both are attracted to each other." The complainant said: "No I'm not really." The applicant started rubbing the complainant's legs and looked her straight in the eye. The complainant said: "Stop that's not funny." The witness said: "Why are you touching her legs like that? Don't touch her." The applicant said: "No it's okay she's cold and I was warming her up."
The applicant asked the complainant to go with him and his friends to drink wine.
The applicant is alleged to have looked as if he was about to yawn, lifted his hands up and put his head down. The applicant is then alleged to have grabbed the complainant's hips, and put his head in her groin area and rubbed his face back and forth sideways in the complainant's groin. The complainant put her legs up and said: "Don't." The complainant said she was embarrassed. The complainant jumped up and ran out of the lifeguard stand. The complainant and her friend then ran back to the van together. The complainant said she didn't tell anyone immediately because she was embarrassed. Later the complainant was with another male friend looking for a mobile phone. The complainant told this male, the brother of her female friend, what had happened with the applicant as previously set out.
Later the complainant went to the bathroom with the witness. As they walked out they saw the applicant. The witness said to the applicant words to the effect of "piss off". The applicant intercepted the witness. The applicant threw his hat on the ground. The mother of the complainant's friend came out. The applicant said: "You better take your son inside, before I kill him." A neighbour then came out and calmed the situation. The applicant does not clearly dispute this version of the events. The complainant then reported what had happened. The police attended and obtained a statement from the complainant.
The applicant has maintained his innocence and vigourously denies that he committed "the alleged act". There is very little more specific denial. The applicant agrees that he crossed paths with the applicant and her friend a number of times prior to the alleged incident. The applicant does not go into any detail about the matters raised prior to the main incident.
The applicant says in Exhibit A2, that the complainant was wearing shorts and a shirt and at one point she said: "I'm cold." To which the applicant respondent: "Yeah, I know. You have goosebumps everywhere. You know you can get rid of goosebumps by friction. I'll show you if you like." The applicant agrees he "rubbed the complainant's shin vigourously…with the intention of generating some frictional heat." The applicant says that he "had no other physical contact with the complainant on the tower, other than possible incidental contact in the confined space".
One of the applicant's friends who provided an affidavit (Exhibit A4) stated that the applicant rubbed the complainant on her shins for about five seconds to create friction. That witness agrees that when they walked back past the complainant and her friend the friend said: "Piss off what you did to [the complainant]".
The other friend of the applicant agrees (in Exhibit A5) that earlier the applicant and he both jumped into the pool to join the complainant and her friend. This to some extent corroborates the evidence from the complainant provided in the police material. This friend says that he recalls the applicant saying to the complainant that she had goosebumps and asked whether she wanted him to warm her up. That person alleges that she agreed and said "okay". This deponent also says that the friend said words to the effect: "Piss off just leave us alone." She is also reported to have said shouting: "What the hell you did to her?" To which the applicant replied: "Nothing what are you talking about[?]"
Dr Pusey provided a report dated 31 January 2016 with a date of assessment 22 January 2016. The applicant told Dr Pusey that he found out that the complainant and her friend were aged respectively 15 and 14 years. The applicant told Dr Pusey touched the complainant's leg in "a platonic way". The applicant acknowledged that he encouraged the two girls to stay with him and his two friends in the lifeguard tower but they left. The applicant acknowledged having consumed alcohol on the evening but denied that he was intoxicated. The applicant acknowledged that he made an angry response to the brother of the complainant's friend because the brother threatened to fight him. The applicant was advised by a former policewoman not to say anything to the police.
The assessment by Dr Pusey on the basis of a clinical tool called UPPS-P Impulsive Behaviour Scale to which the applicant responded, is that the applicant "is most likely to engage in impulsive behaviour based upon a tendency to enjoy/pursue exciting activities and an openness to try new activities which he may or may not deem to be dangerous. Additionally, to a lesser extent his score suggests that he may engage in impulsive behaviour to distract from the experience of negative emotions but this would likely be a very infrequently occurring phenomenon." The findings of the psychometric assessment tool specifically investigating substance abuse, according to Dr Pusey, suggested that the applicant's profile is consistent with an individual who meets the criterion for a substance use disorder, however, this is likely to reflect historical rather than current substance use behavioural patterns. Dr Pusey assesses the applicant's current risk of sexual offending recidivism as "low". Dr Pusey was not cross-examined.
The signed statement of the witness who is the friend of the complainant records her observations in Exhibit R2 of the rubbing of the complainant's legs by the applicant. Relevantly, the witness said that the complainant sat there quietly not agreeing or disagreeing with the applicant. She observed after talking to the applicant, that the complainant was outside the lifeguard stand and they left. Later, the complainant told her the following: "He put his head down there," pointing to her groin area. She said, "He held it there for about two seconds, until I told him to stop." I asked her why she didn't tell me, so we could have gotten out of there earlier. I had no idea what was going on. I thought we were all just talking. She said, "I kept telling him quietly not to do it and to stop, but I didn't want to say anything to you, cause I was scared he was going to hit me."
The complainant's friend later spoke with the applicant. It is recorded in her statement, Exhibit R2 page 19 at [16], that the applicant asked whether the complainant was alright. The friend replied: "Yes she's fine, she just didn't like the way you were touching her and talking to her." The applicant is alleged to have responded: "I didn't mean to upset her and if it's any consolation, I'm sorry, but I was jus (sic) going with the flow."
The complainant told the friend's mother as recorded in the mother's signed statement given to the police, Exhibit R2 page 22 at [15]: "…she was sitting with her legs crossed in the lifeguard box and he was rubbing her legs and put his hands in her jacket. She did say that he was putting his head down between her legs and moving his head backwards and forwards. She said she told him to, "Stop", and then told [her friend] that we have to go."
The complainant's friend's slightly older brother was also present. The complainant when referring to the applicant told the brother, while she was upset and crying: "That creep put his head between my legs and his hand on my hips and in my jacket."
Earlier in the evening the brother was threatened by the applicant consistent with the other versions. The applicant is alleged to have said to the brother as recorded in the brother's signed statement, Exhibit R2 page 27 at [18]: "C'mon them(sic) [then] let's go. I'm gonna kill you."
The mother of the applicant's friends invited the police to interview her son and the other person who has sworn an affidavit in support of the applicant in these proceedings. The police did not do so.
There is corroborative material in the witnesses' statements to support the version of events of the complainant. The Tribunal finds, having regard to all the various versions given by the individual witnesses, that on the balance of probabilities that the applicant behaved as alleged by the complainant.

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

The time which has elapsed since the conduct which led to the charges is five years.
Since that time the applicant has been engaged in a number of activities which could be considered child-related employment or involving some level of interaction with children. The applicant has worked in the NSW Rural Fire Service and has been the Community Safety Officer which required the applicant to organise and manage public safety events and activities including school fetes.
The applicant has been a field marshal/game referee for a paintball venue assisting young players and leading people through the rules of the pastime.
The applicant has been employed as a rescue medical technician. References provided by the applicant indicate that his employment has been without incident but do not reference the offence with which the applicant was charged.
The applicant is currently on a New Start allowance from Centrelink. The applicant has enrolled in a counselling course that runs for approximately two years and which focuses on alternative therapies.

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

The applicant was aged 18 years at the time of the alleged offence. The applicant had just completed his HSC.

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 alleged victim who was the complainant was aged 15 at time of the alleged offence.
The complainant was vulnerable because she was a child at the time of the alleged offence and not in her usual home environment. The witness to the matter was also subject to inappropriate interactions by the applicant and she was aged 14 at the time of the alleged offence. She was also vulnerable due to her age.

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 applicant and the alleged victim and witness was 3 to 4 years. The applicant was only recently acquainted with the complainant and witness a short time prior to the alleged offence.

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

The applicant ought to have known or could reasonably have known that the complainant was a child. According to the information provided by the police the applicant asked for the ages of both the complainant and her witness and he was informed that they were both children. This is to an extent corroborated by the evidence from the applicant reported by him to Dr Pusey.

The person's present age

The applicant is currently 22 years old.
The applicant has slightly matured since the alleged offence but has not significantly matured. The applicant is still a young man.

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

The applicant did not have a previous criminal history.
There have been no further incidents resulting in criminal charges.
The applicant denies any wrongdoing in relation to the offence which was alleged against him.

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

The applicant had a telephone conversation on 31 October 2014 with an officer of the Children's Guardian in which he stated that the whole situation was a big misunderstanding and that the complainant made false claims about him touching her. Despite denying that he touched the complainant as alleged, the applicant admitted that he touched her in a completely platonic way. This is recorded in Dr Pusey's report.
The police determined that there was sufficient evidence to bring charges. The matter was withdrawn at court because the complainant chose not to proceed for reasons which are not explained.
Because a victim does not wish to proceed with criminal proceedings does not automatically mean that there is no risk posed by the applicant. There are any number of reasons why a victim may choose not to give evidence or to proceed through the court process. The applicant relies upon the fact that there was an application for costs which succeeded but there are no reasons or transcript in relation to that determination. Again, the determination that there should be an award of costs against a prosecutor does not mean automatically that there is no risk posed by the applicant. The legislation which governs the award costs in those circumstances is different to the legislation which the Tribunal is required to consider when determining whether there should be a grant of a working with children check clearance. The basis for awarding costs utilises different considerations than those which are set out in section 30 of the Act.
The basis for an award of costs in the summary prosecution is sections 213 and 214(b) of the Criminal Procedure Act 1986 (NSW) which provides as follows: 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. (5) The order must specify the amount of professional costs payable. 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003 .
It is clear that the considerations which apply to the determination of the award of costs to the accused rely upon whether the complainant or a prosecutor turns up at court, or whether the matter is withdrawn and dismissed as a precursor to considering whether the failures of the process of investigation into potentially exculpatory evidence, or conduct of proceedings by the prosecutor warrants an award of costs against prosecutor. The award of costs is a fact but it is a fact which should be given very little or limited weight in the consideration of whether the applicant poses a risk to children.
The applicant relies on the evidence of Dr Pusey is that the applicant poses a 'low' risk to children. Dr Pusey was concerned that the applicant showed a level of impulsivity and lack of thought about the consequences of his actions.
The Tribunal is aware of the caution which should be attached to risk assessments and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
The Tribunal has considered these issues previously and in BKV v Children's Guardian [2015] NSWCATAD 65, observed: [105] While these assessment tools have limited validity in predictive terms, they are based on the applicant's self-report to Dr Collins and proceed from the assumption that the applicant did not have a sexual relationship with the victim, and more importantly that he has no convictions for sexual offending. As previously noted, the civil onus is less exacting than the criminal onus. The question remains whether on the balance of probabilities the evidence establishes that there was in fact a breach of the boundaries between an adult and a child in the relationship of teacher and student. The cautionary note sounded by Dr Collins in her report and previously quoted, identifies that risk assessments are only as good as the information on which they are based, can change depending on new information or a conclusion based upon existing information, and there is an appreciable level of error built into them. To that extent, the use of these tools is flawed by circular logic. Dr Collins makes it clear that the only real risk issue is that the applicant has been charged with a sexual offence (but not convicted). The assessment tools do not validate whether the events actually occurred as alleged, a task which the Tribunal must perform based on the evidence before the Tribunal weighed in the scales using the balance of probabilities formulation. [106] The likelihood of any repetition of the conduct is assessed by Dr Collins as minimal. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the alleged offence independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
The applicant relies upon the report of Dr Pusey to address the likelihood of any repetition of the conduct which led to the offences with which the applicant was charged. The assessment by Dr Pusey is that the applicant poses a low risk of sexual recidivism. To a large extent the incident which occurred fortunately did not escalate and is a maturing experience for both the applicant and the complainant. The excessive use of alcohol by the applicant may have played a part in his disinhibited and impulsive, boorish behaviour. The applicant has managed to contain his behaviour since the events which led to the charges against him.
The applicant has shown no remorse for the effect of his behaviour upon the complainant apart from the brief admission to the complainant's friend recorded previously in these reasons.
In BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], referred to the situation where the Tribunal 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 this matter, on the balance of probabilities and having regard to the various witness statements it is more probable than not that the events as alleged occurred. The likelihood of a repetition of those events is slight provided the applicant maintains his current trajectory and engages in prosocial activities. The actions of the applicant were impulsive and failed to respect the right of the complainant to an enjoyable and safe social interaction with young people close to her age group.

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

The applicant has provided information including statements from his friends who were present at the time.
The applicant says that he would like to engage in a profession which requires a working with children check clearance. It would be in the interests of the applicant to remember how easily a situation can deteriorate and have long-term ramifications for not only himself but any persons who are involved in that situation.
The Children's Guardian has not submitted that the applicant has failed to provide relevant information.

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 does not oppose the application but does not consent to the application.

Consideration

The behaviour and conduct which triggered this assessment is described as an act of indecency.
The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms as is reflected in legislation outlawing the behaviour. The criminal prosecution did not proceed and the prosecutor was liable for the costs of the applicant due to considerations set out in the relevant legislation.
The behaviour is not part of a pattern of ongoing events, and although relatively recent, has allowed sufficient time for the applicant to reflect upon his behaviour. If repeated, the concerning behaviour would perpetrate harm as identified to the victim(s). There has been provided some evidence of sustained positive changes on the applicant's part since the behaviour occurred. Recurrence of the concerning behaviour has not happened over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour is able to be inferred on the evidence provided to the Tribunal.
The behaviour, if repeated, would be more likely than not to do significant harm and the consequences are likely to be serious to children. The paramount principle under the Act includes protection of children from abuse and 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.
The applicant has identified factors which mitigate in his favour. Specifically, the applicant has involved in prosocial activities and has ambitions to improve himself for the benefit of others.
The applicant has not acknowledged or shown significant insight into the effect his conduct may have on his victim. The applicant has shown very little remorse. Remorse on its own is not sufficient to ameliorate risk.
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.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
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 on the balance of probabilities that there is not a real and appreciable risk of harm to children posed by the applicant.
The evidence received by the Tribunal also establishes that the Tribunal can be satisfied that the applicant does not pose a real and appreciable risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does not pose a risk to the safety of children and should receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be set aside.

Orders

The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 24 September 2015 to refuse the applicant's Working with Children Check clearance the Child Protection (Working with Children) Act 2012 is set aside. 2. The application for review of the decision of the Children's Guardian filed 21 October 2015 is allowed. 3. The Children's Guardian is to grant to the applicant a working with children check clearance within 28 days of this decision. 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: 17 June 2016

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (35)