CGN v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-05-06

The Applicant's evidence in these proceedings

The Act imposes a duty on the Applicant to disclose all relevant matters: s25 of the Act. The Tribunal found the Applicant's oral evidence at times guarded and not forthcoming. His recollection of critical events was notably poor. Some of these events did, however, take place over 40 years ago. Given the seriousness of the two incidents in 1975, especially in relation to the November 1975 matter (trigger offence 1) which led to the Applicant engaging a solicitor to represent him and bail being posted for him, it is noteworthy that the Applicant has so little recollection of the incidents and of the court proceedings.
The report of Mr Sheehan, psychologist, referring to an interview he conducted with the Applicant, states that the Applicant's "chronology of events appeared accurate, but his memory of the historical events related to the current application was notably poor". He opined that the Applicant is "a somewhat unreliable historian in examining the historical charges and not surprisingly, given the circumstances, seeks to portray himself in a positive light". He also notes that the Applicant was "cooperative and tried to answer all the questions put to him, but there was often a lack of depth in his response, which I took to be at least partly accountable to his general level of cognitive sophistication and basic English skills".
The Applicant appeared to the Tribunal to have a very limited understanding of the legal processes in relation to the criminal charges against him, the AVOs and his family law matter. This extended to the Applicant appearing at times to not follow or understand what was being asked of him in these proceedings, despite the assistance of an interpreter.
The Respondent questioned Mr Sheehan about his assessment of the Applicant's truthfulness in these proceedings. Mr Sheehan's evidence was that he assessed the Applicant to be cooperative and did not consider him to be deliberately deceptive or misleading.
In considering the totality of the evidence given by the Applicant, on balance the Tribunal found the Applicant to be a truthful and reliable witness.

The Applicant's history of criminal charges and seriousness of the offences

The decision to refuse a WWCC clearance states that the Applicant's "criminal record outlines two trigger records from 1977 to 1982 of sexual assaults against females, one of whom was a child. You also have a charge of Unlawful Assault from 1976 which includes another incident of alleged sexual violence against an adult woman".
The trigger offences are serious and required the Respondent to conduct a risk assessment, regardless of whether the Applicant was convicted of either charge. The Respondent's decision stated that "although you were not convicted of any of the charges, you have three records of alleged sexual violence of a similar nature against three different females over a period of 5 years". The Respondent also took into account the AVOs, which were made for the protection of persons with whom the Applicant had a domestic relationship.
The Tribunal agrees that of the allegations against the Applicant in the trigger offences and the further criminal charge in 1975 are of a serious nature.

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

The first trigger offence and the second incident in 1975 occurred 41 years ago. The second trigger offence occurred 35 years ago. The firearms offence was 17 years ago.
The last AVO was imposed 12 years ago. There is no record of any breaches of these AVOs and the Applicant has had no contact with the criminal justice system since then.

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

At the time of the first trigger offence the Applicant was 25 years old and he was 31 years old at the time of the second trigger offence. He was in his late 40s or early 50s at the time of the AVOs.

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 age of the alleged victim of the first trigger offence was 24 years. The age of the alleged victim of the second incident in 1975 was 19 years old. The age of the alleged victim of the second trigger offence was 16 years old.
In relation to the AVOs, SS was 31 years old and it is not known how old the Applicant's ex-wife was at the time. His son was between 9 and 14 years old.

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

In relation to the alleged incidents in 1975 the Applicant states that he had no relationship, and indeed does not know the identity of the complainants. It is understood by the Tribunal that they were relatively close in age to the Applicant.
In relation to the second trigger offence the Applicant stated that the alleged victim was his girlfriend at the time. Although she was 16 years old at the time, he says did not know and thought she was older. In reality their difference in age was 15 years.
SS was 21 years younger than the Applicant. The Respondent understood that the Applicant's ex-wife was close to his age. His son was born in 1990.

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

Apart from the Applicant's son, the Tribunal accepted the evidence of the Applicant that he was not aware that the alleged victim of the incident which occurred in 1981, was 16 years old.

The person's present age

The Applicant is 66 years old.

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

The Applicant does not have a criminal record, except for the firearm offence which was disposed of without conviction.
The making of an AVO by consent does not necessarily mean that the allegations are established as a matter of fact. In the case of the allegations made by his ex-wife, the conduct complained of was not substantiated at the time the complaints were made, and the Applicant consented to the making of the AVOs for reasons including not wanting to damage his chances of obtaining Family Law Court orders to be allowed contact with his son. The Applicant was acquitted of both trigger offences and the third charge did not proceed to a trial.
Mr Sheehan's report finds that the Applicant's "history of charges for sexual violence may not be considered chronic or diverse (limited to a five year period over the life spanning sixty-five years). In relation to the AVOs, Mr Sheehan notes that the Applicant has "no convictions for interpersonal violence but his history of ADVO may raise some questions of hostility and inability to resolve conflict in relationships". Mr Sheehan considered the Applicant's "relationship history suggests he is unable to manage conflict or relationship dissolution without hostility". Mr Sheehan also considered that the Applicant has never been charged with a breach of an AVO which suggests "some capacity to respond to boundaries placed on him".
Since the making of the last AVO some 12 years ago, the Applicant has had no contact with the criminal justice system. Since the charge in relation to the incident in 1981, some 35 years ago, no similar charges or complaints have been made against the Applicant.

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

The Respondent submits that it is not possible to assess the likelihood of repetition of the offences and the conduct of the Applicant which led to the refusal of a WWCC clearance. The Respondent draws attention to the Applicant's lack of recall of many of the details in relation to the offences and is therefore unable to indicate whether he has insight into those matters. In relation to the AVOs, the Respondent submits there is no indication that the Applicant accepts any responsibility or acknowledges any conduct that could warrant the making of those orders against him. The Respondent's decision states "you have not demonstrated any explanation for the alleged incidents, nor have you shown willingness to accept responsibility for your role in the events. Additionally, you have not demonstrated any insight into the seriousness of the records".
At the Hearing the Applicant conceded that the charges against him were serious, but he strongly denied any culpability in relation to each of them. He gave an explanation for the second trigger offence and for the incidents which led to the making of the AVOs. In relation to both incidents in 1975, he said he had no recollection of them.
The only matters that have some involvement with children are the charges relating to the second trigger offence in 1981, when the alleged victim was 16 years old (but the Applicant was unaware of this), and the AVO made in favour of his son and ex-wife from an incident in September 1999.
The Tribunal found the Applicant did appreciate that the allegations made against were serious and, if they were true, would be sufficient cause to deny him a WWCC clearance. The Applicant demonstrated to the Tribunal that he is aware of conduct that would be seen to pose a risk to the safety of children.

Any information given in, or in relation to, the Application

In addition to his evidence and that of Mr Sheehan, the Applicant provided references and statements from work colleagues in support of his contention that he does not pose a risk to the safety of children.

Any other matters that the Children's Guardian considers necessary

The Respondent provided written submissions in response to submissions made by the Applicant's solicitor in relation to the Applicant's objections to some of the material contained in the section 58 documents.

Real and appreciable risk to the safety of children

Mr Sheehan's psychological report said that as the Applicant "has never been convicted of a sexual offence, it may be of questionable validity to assess him against the known risk assessment parameters…in examining (the Applicant's) risk to children we can be guided by clinical judgment, but with the caveat that without an established history of sexual offending, we are applying principles that would normally not be applied". Mr Sheehan was asked to elaborate on this at the Hearing and the Tribunal had some difficulty following his explanation. He said that while he did not specifically take into account that there were 3 separate charges over 5 years he said he did look at "chronicity". He also said the Applicant was not a very "reflective person" and offered the view that, with the exception if intra-familial offending, "denial is not a risk factor to recidivism".
When asked about his assessment of the Applicant's conduct in relation to the AVOs, Mr Sheehan noted that it may only infer a problem with intimate relationships. He was asked what weight these matters were given in his assessment of whether the Applicant posed a risk to the safety of children, and particularly in the context of the tests he used to inform this assessment. He said that the AVOs carried little or no weight in assessing the Applicant's risk to the safety of children because they did not involve any sexual risk towards children and the conduct that precipitated the making of the AVOs is confined to the Applicant's intimate relationships.
The Respondent submitted to the Tribunal that Mr Sheehan appeared to have taken the Applicant's self-report on these matters at face value and did not appear to have challenged the Applicant about the circumstances of the AVOs including the allegations of physical assault by each woman. At the Hearing Mr Sheehan explained that as there was no conviction of any violence, the allegations made in the context of the AVOs were untested and so, at its highest, it pointed to problems with intimate relationships.
The Tribunal had some difficulty understanding the explanation given by Mr Sheehan about the theory underlying the tests he used in assessing the likelihood of any repetition of offending conduct. It did, however, appreciate that in the case of the Applicant and his limited capacity to engage in the detail of these matters, and in circumstances where none of the complaints have led to a conviction, Mr Sheehan was faced with a difficult task in conducting this assessment. Mr Sheehan's overall risk assessment states that the examination of the Applicant against the two tests he administered revealed that he did not meet the characteristics associated with an elevated risk of reoffending as identified in the literature. He said: "...of particular mitigating relevance as his advanced age (men over the age of 60 years have a far lower risk of sexual aggression or violence unless cognitive decline is a pressing issue) and his 34 years of working in a child-related employment unsupervised in the community with no further complaints of sexual aggression. In my expert opinion, the overall totality of information would suggest that his risk to harm children (through sexual aggression or violence) would be considered very low".
Mr Sheehan's opinion is that he is "unable to conclude that there is a real and appreciable risk to children". He goes on to say that the Applicant "has few features associated with risk of reoffending and a number of compelling protective factors". He states "in my expert view that any residual risk is low and not specific to children".
This is a finely balanced matter. There were three separate complaints of a sexual nature made against the Applicant in a period of 5 years, and indeed there were two in one year. When two of the complaints were tested in court he was found not guilty under the criminal standard. This is not determinative of the matter but it does reduce the weight that can be placed on these allegations as an indication of future risk: BQE v Children's Guardian [2015] NSWCATAD 89. The third charge of common assault did not proceed to a trial. In relation to all three complaints, seen separately and together, the Tribunal was unable, based on the available evidence, to make any positive findings of fact in relation to them.
These three offences were alleged to have occurred more than 35 years ago when the Applicant was a young man and there have been no similar complaints made against him since then. After a gap of some 18 years, the AVOs occurred in a domestic context and the making of the last AVO was 12 years ago.
Weighed against this history of charges which date back decades is the fact that the Applicant has not had any complaints made against him since then.
The Applicant provided the Tribunal evidence from 'RI' in a statutory declaration dated 3 November 2014 and an Affidavit dated 22 January 2016. RI states that he has known and worked with the Applicant since 1983 and the Applicant has been a "valued close family friend". He is clearly a supporter of the Applicant who describes him as a "kind hearted, hard-working individual". He says "I have never known him to show any signs of violent or aggressive behaviour". RI said the Applicant has spent time with his son "on many occasions" and that he would have no hesitation asking the Applicant to look after his son if the need arose.
In a more objective sense, RI also states that the Applicant was required to drive school routes, both in the morning and afternoon 5 days a week. He states that he is not aware of any complaint made against the Applicant as a result of his conduct towards children or any other passenger. This is supported by other evidence from the Applicant's former employer. Attached to the Applicant's Affidavit of 22 January 2016 is a Professional Reference from an Assistant Depot Manager at Westbus. It says "I was his point of contact manager and dealt with him on a daily basis". It says the Applicant has "conducted himself in a very professional manner and has an impeccable record in his position as a bus driver with students and adult passengers". Also attached to the Applicant's Affidavit are certificates of commendation and appreciation from his employer for his work as a bus driver.
The evidence presented to the Tribunal, uncontested by the Respondent, is that throughout his 34 years as a bus driver, the Applicant has had direct contact with children on a daily basis without supervision, and he has never had a complaint made against him.

Conclusion and orders

The matters that the Respondent took into consideration in refusing a WWCC clearance were of a serious nature, especially the allegations of sexual assault. None of these charges were, however, substantiated at the time or now before the Tribunal. These complaints arose more than 35 years ago and there have been no similar complaints since then. The AVOs arose in a domestic context and the Applicant consented and complied with them without admitting to any of the conduct that was complained of. He has been assessed by a psychologist, in whose opinion the Applicant does not pose a real or appreciable risk to the safety of children.
For the past 34 years the Applicant has had daily contact with children without any incident or complaint made against him. After considering the paramount object of the Act - namely the safety, welfare and well-being of children, and in particular protecting them from child abuse, as required by section 4 of the Act - on the evidence available to it and on the balance of probabilities, the Tribunal is not satisfied that the Applicant poses a real and appreciable risk to the safety of children.
The Tribunal orders that: 1. The decision of the Respondent to refuse a Working with Children Clearance is set aside. 2. 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: 06 July 2016

Child Protection (Prohibited Employment) Act 1998(NSW)

The object of the Act

The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have WWCC clearances: the Act, s 3 and s 8. Child related work is defined by s 6 of the Act and there is no dispute that the Applicant's job as a bus driver requires him to obtain a WWCC clearance.
Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. The Act does not define "abuse" however guidance can be drawn from other legislation aimed at protecting children such as the Family Law Act 1975 (Cth), where the "best interests" of a child include the primary consideration of the "need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence": Family Law Act 1975 (Cth) s 60 CC (2) (b). This supports the view that the concept of protection from "child abuse" also includes protection from actions which are likely to cause psychological harm.
The object of the Act is to eliminate risk of harm to children. The Tribunal is to determine whether the Applicant poses a risk to the safety of children having regard to the factors set out in section 30 (1) of the Act (as it was at the time of the Applicant lodging his application to the Respondent for a WWCC clearance).
The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children': at [42]
The Tribunal has followed this meaning of risk: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164.
The Tribunal's jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The Applicant must also fully disclose to the Tribunal any matters relevant to his application for a WWCC: section 28 (5) of the Act.

The material before the Tribunal

The Tribunal was provided following material to consider in determining this application: 1. Bundle of documents filed by the Respondent on 16 December 2015 (section 58 documents); 2. Supplementary section 58 documents filed on 8 February 2016; 3. Affidavits of the applicant dated 22 January 2016 and 1 March 2016; 4. Affidavit of RI dated 22 January 2015; 5. Affidavit of Patrick Sheehan dated 15 March 2015 attaching a psychological report dated 25 February 2015; 6. Outline of Applicant's submissions dated 11 April 2016; 7. Applicant's further written submissions dated 20 May 2016; 8. Applicant's further written submissions dated 26 May 2016; 9. Outline of Respondent's submissions dated 8 February 2016 and 5 May 2016; 10. Respondent's supplementary submissions dated 29 March 2016; and 11. Respondent's supplementary submissions dated 20 May 2016.
On the day of the Hearing, oral evidence was given by the Applicant with the assistance of an interpreter. Mr Sheehan also gave oral evidence in person.
At the Hearing the Applicant's solicitor made submissions to exclude certain evidence before the Tribunal on the basis that it was highly prejudicial to the Applicant and would deny him procedural fairness. This evidence included documents with respect to the trigger offences and to another charge in 1975 that was withdrawn and did not proceed to trial. The Applicant cited Commission for Children and Young People v FZ [2011] NSWCA 111 with reference the Tribunal's discretion to act on material which is rationally probative but in doing so it must determine, in all the circumstances, whether it is proper to act on such material, and to act fairly towards the parties. The Respondent opposed the exclusion of this evidence on the basis that this evidence formed part of the decision made by the Respondent and the Tribunal could afford it the appropriate weight in all the circumstances.
The Tribunal held that it has to consider the evidence presented by the parties in light of its obligations to consider the factors set out in section 30(1) of the Act. To the extent that some of the evidence is distant, unsupported and untested, if the evidence is relevant, the Tribunal could accord it the appropriate weight in determining whether the Applicant poses a risk to the safety of children.
The burden of proof in the finding of facts and determining whether the Applicant poses a risk to the safety of children is on the balance or probabilities. The High Court in Brigenshaw v Brigenshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test. This was affirmed by Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court said "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". Guidance is provided by section 140 (2) of the Evidence Act 1995 (NSW), which establishes that where a court is required to make a decision based on the balance of probabilities, it may take into account the nature of the course of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (6)

Cases Cited (11)

Cited By (2)