CJK v Children's Guardian

Role of the Tribunal

1. Subsection 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order.
2. Where such an application is made, section 28 also provides the following: 28 Orders relating to disqualified and ineligible persons (1) … … (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to … grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) …
3. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
4. 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: Civil and Administrative Tribunal Act 2013, s 36.
5. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Tribunal Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act (1995), s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s 38 and s 67.
6. Procedural fairness and other aspects of natural justice, of course, 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 Balencio (1987) 8 NSWLR 436.
7. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 set out at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so.
8. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."

Administrative Decisions Review Act 1997

1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal.
2. At any stage of proceedings, the Tribunal may remit the decision to the respondent for reconsideration: Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

1. In determining the application, the Tribunal must have regard to the factors set out in subsection 30 (1) of the Act. (These replicate the factors set out in s15(4) to which the respondent may have regard when conducting its risk assessment): 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. There was no dispute at the hearing that the amendments to s 30 of the Act effected by the Child Protection Legislation Amendment Act 2015 (NSW), being the insertion of a new s.30(1A) do not apply to the applicant's application for an enabling order under Part 4 of the Act.
3. The meaning of the word "risk" was considered by his Honour Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: 'What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children".'
4. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE, at [26].
5. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Burden of proof

1. The applicant bears the onus of persuading the Tribunal that the applicant does not pose a risk to the safety of children.
2. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
3. The applicant has a duty to disclose all relevant material pursuant to section 28(5) of the Act.
4. The jurisdiction of the Tribunal is protective of children and is not to impose additional punishment on a disqualified person. The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children.

Evidence before the Tribunal

1. The applicant relied upon the following documents he provided to the respondent as part of the assessment process: 1. Affidavit of the applicant sworn 15 June 2016; 2. Report of Ms Caroline Hare, Psychologist, dated 19 March 2016 and letter of instruction to Ms Hare; 3. Reports of Dr Peter Powell dated 7 June 2011, 27 March 2014 and 5 April 2016; 4. Pre-sentence report dated 27 June 2011; 5. Reference of Dr X dated 16 June 2016; 6. Reference from Ms Y dated 17 May 2016; 7. Reference from Mr Z dated 21 June 2016,
2. The applicant tendered written submissions by his Solicitor dated 27 September 2016.
3. The respondent relied upon the following documents: 1. Documents filed pursuant to section 58 of the Administrative Decisions Review Act on 21 April 2016.
4. In addition the respondent tendered written submissions prepared by Counsel for the respondent dated 13 September 2016.
5. The applicant gave oral evidence at the hearing and was cross-examined by Counsel for the respondent.
6. The evidence is now considered under each of the subheadings of sections 30(1) of the Act.

(a) Seriousness of any matters with respect to which the person is a disqualified person or any other matters that caused the refusal of a clearance or the imposition of an interim bar

1. The offence that caused the refusal of the applicant's application for a clearance was a conviction on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (the Crimes Act) (the offence) . A second charge of sexual intercourse without consent contrary to S 61I of the Crimes Act was taken into account on a Form 1 (the Form 1 conduct).
2. The circumstances of the offence, as set out in His Honour Judge Colefax's judgment on 30 June 2011, were as follows: At some point between the middle of 2005 and the middle of 2006 the applicant and his wife were staying overnight at the [house of the applicant's wife's sister]... In the early hours of the morning, the [wife] awoke to find herself lying on her stomach with the [applicant] on top of her. She felt pain in her vaginal area and realised that the offender was engaging in an act of penile vaginal penetration. The [wife] informed the offender that he was hurting her and requested that he stop. The [applicant] continued to have sexual intercourse with [his wife]. The [wife] again requested (indeed demanded) that the offender cease his activities. She tried to push the [applicant] off but was unable to do so... The [applicant] continued to have sexual intercourse with the [wife] until he ejaculated at which time he rolled off the [wife]. [It was agreed that the amount of time from the moment the wife woke until the applicant ceased having sexual intercourse with her was between two and three minutes]. In June 2008 the [applicant and the wife] separated. Approximately two months after their separation the [wife] accessed a laptop computer. On it she saw a number of photographs which appeared to be photographs of herself. These were intimate photographs and she was unaware that they had been taken of her.
3. One of the photographs taken into account on the Form 1 was a picture of the applicant inserting a cigar canister into the wife's vagina while she was asleep. The Form 1 conduct was comprised of this incident. The wife gave a statement to Police in August 2009.
4. Judge Colefax SC found that the offence was below a mid-range offence and was at the bottom of the range for an offence of this kind. He found the applicant's plea of guilty to be an acknowledgement of his remorse and also found that a transcript of conversations, intercepted lawfully on 29 September 2010, demonstrated that the applicant was genuinely remorseful for what he had done to his wife and was genuinely concerned for her welfare. Judge Colefax sentenced the applicant to imprisonment for 11 months and seven days which represented a 25% discount for entering a guilty plea at the first available opportunity. The sentence was suspended on the applicant entering into a good behaviour bond and accepting the supervision of the Probation and Parole Service.
5. In addition to the offence in the Form 1 conduct the applicant was also convicted in March 1984 of making a false statement with intent to obtain a financial advantage contrary to s178 BB of the Crimes Act and was convicted in July 1984 of stealing an antenna from a store, contrary to s501 of the Crimes Act. In October 1999, the applicant was convicted of common assault of the mother of his two children contrary to s 61 of the Crimes Act.
6. The circumstances which led to the applicant's conviction of making a false statement occurred in August 1983. According to the Police fact sheet, which was in evidence before the Tribunal, the applicant rolled his car in early August 1983 whilst on a drive in the country. This caused extensive damage to the vehicle. After the accident, the applicant took parts off the vehicle and dumped the vehicle in bushland. On 14 August 1983 the applicant reported the car as stolen and on 15 August 1983 he recovered it himself. The applicant made a claim with the insurer of the vehicle however the insurer hired a private investigator who subsequently obtained a statement from the applicant in which he admitted his offence. The vehicle was valued at approximately $5000.
7. The circumstances which led to the applicant's conviction for an offence under s 501 of the Crimes Act were that he was seen by security staff in a store to take a pair of window wipers and an antenna from the shelf. The applicant then secreted the antenna under his clothing and only paid for the window wipers. The applicant admitted this offence when approached by security staff saying that he wanted to try the antenna before buying it.
8. The common assault offence occurred on 24 September 1999. The victim was the applicant's former de facto wife and the mother of his two children. The applicant grabbed his de facto wife around the neck and threw her against a wall during an altercation. The applicant said in his evidence before the Tribunal that he denies grabbing his de facto wife by the throat but says his hand was at the base of her neck as he pushed her into the wall. The de facto wife requested that the applicant leave the premises but he refused to do so. She then called the police. An apprehended violence order was taken out on 25 October 1999 for the protection of the de facto wife from the applicant.
9. In evidence before the Tribunal was a statement of the wife made on 24 August 2010 to Police. In this statement she reports other conduct by the applicant during their marriage being digital penetration without her consent while she was asleep and her waking up and telling the applicant to stop. The wife says that this conduct occurred on many occasions. No charges were laid in respect of this alleged conduct.
10. The applicant does not deny the offences. The applicant was asked in cross-examination by Counsel for the respondent whether he knew at the time of the offence and Form 1 conduct, that his actions constituted a sexual assault. In response, he said he did not think at the time that what he was doing was illegal. He said he now fully understands that what he did was sexual assault.
11. The offence of sexual intercourse without consent contrary to s61I of the Crimes Act 1900 and the Form 1 conduct are serious offences. This is indicated not only by community disapprobation but also by the legislature's imposition of a maximum penalty of 14 years imprisonment. However, the sentencing judge found that the offending was at the bottom of the range for an offence of this kind.
12. The applicant also has a 1983 conviction for making a false statement and his 1984 conviction for theft. In addition he was convicted of common assault on his wife in 1999. There is evidence that the latter offence was committed when there were children present in the house although the assault took place outside the house. It is well accepted that children can be both the direct and indirect victims of violence and, in this regard, the applicant's offence is both serious and relevant to the issue of whether he poses a risk to the safety of children.

(b) The period of time since the matter occurred and the conduct of the applicant since that time

1. The offence and the Form 1 conduct occurred between 2005 and 2006. Therefore a period of between 10 to 11 years has elapsed since then. The common assault offence occurred in 1999. A period of 17 years has elapsed since that conduct occurred.
2. Since then the applicant has had no known criminal offences and there is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant since these matters occurred.
3. Since the time of the offence and the Form 1 conduct the applicant has undertaken 21 hours of therapy with Dr Peter Powell, a Psychologist who specialises in the treatment of male sexual offenders.

(c) The age of the applicant at the time the matters occurred

1. The applicant was 36 years old at the time of the common assault offence. He was aged between 41 and 42 at the time of the offence and Form 1 conduct.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

1. At the time of the offence and the Form 1 conduct, the applicant's wife was 35 to 36 years old. She was vulnerable at the time of the offence as she was asleep in bed when she awoke to find the applicant on top of her. At the time of the Form 1 conduct the applicant's wife was also asleep and said she had taken a sedative, Stilnox.
2. The applicant's de facto wife was 31 years old at the time of the common assault offence. She was vulnerable as she was assaulted just after she had arrived home with her two young children who were aged nine and four at the time.

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

1. The applicant was married to his wife at the time of the offence and was six years older than his wife.
2. The applicant was separated from his de facto wife at the time of the common assault offence and was five years older than his former de facto wife.

(f) Whether the applicant knew, or could reasonably have known, that the victim was a child

1. The applicant's wife and de facto wife were both adults at the time of the relevant conduct.

(g) The applicant's present age

1. The applicant is now 53 years of age.

(h) The seriousness of the applicant's total criminal record and the conduct of the applicant since the matter occurred

1. Other than the matters referred to above being the two offences of sexual intercourse without consent and common assault together with the two convictions for offences of dishonesty, there is no record of the applicant having committed any further offences either prior or subsequent to these offences. Since the offence and Form 1 conduct in 2005 and 2006 and the other conduct reported by the applicant's former wife during their marriage, there have been no complaints or incidents of inappropriate behaviour or any other conduct that could be considered adverse to the applicant since these matters occurred.

(i) The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

1. The applicant provided an independent risk assessment report from Ms Caroline Hare, Forensic Psychologist. Ms Hare also gave oral evidence and was cross-examined. Ms Hare opines that the applicant is a low risk of re-offending on the basis of an absence of history of causing physical, sexual or emotional harm to children. Ms Hare also says the applicant is aware of the need to prioritise child safety and was able to outline measures to promote the safety of children who could potentially be in his care.
2. It was put to Ms Hare in cross-examination that the applicant's wife had asserted that the applicant had digitally penetrated her on a number of occasions when she was asleep. She said that even though she was not aware of this at the time she prepared her report it would not change the risk assessment undertaken although it does indicate that the applicant's attitude was more entrenched than had it been only one or two occasions when this conduct occurred.
3. In her opinion if the applicant were to sexually reoffend it seems most likely that this would occur within the context of an intimate relationship. Ms Hare says the risk of re-offending is low, as his understanding of sexual consent and his accountability for his actions have improved through treatment, as has his empathetic concern.
4. Reports from Dr Peter Powell, Psychologist were in evidence before the Tribunal. Dr Powell also gave oral evidence. He states that the applicant completed 21 hours of therapy with him. At the commencement of therapy he said the applicant recognised that he had "crossed a line but did not see what he had done as a sexual assault." Dr Powell says that at the end of the therapy the applicant was clearly aware of the nature of his offences and the attitudes and thinking that enabled the offence to occur. At the time of completion of therapy Dr Powell said there were no pro-offending attitudes or behaviours noted. In his opinion the applicant did not demonstrate any pro-offending attitudes towards either children or adults. The applicant's risk of any reoffending was recorded as low.
5. The applicant relied upon a number of written references including from a number of community organisations with which the applicant has volunteered or been involved. These references all speak highly of the applicant and state that there are no concerns on the part of the referee in relation to the applicant's conduct. The respondent did not require any of these referees to be made available for cross-examination. To the extent that these references failed to make mention of the applicant's disqualifying offence or other offences we have given these little weight.
6. The applicant's sisters, who are respectively a medical practitioner and psychologist, also provided written references for the applicant. They state they are both aware of the applicant's offences. They state they have no concerns about allowing the applicant to have unsupervised access with their own children. They each speak of their ongoing support for, and close relationship with, the applicant.
7. The Tribunal agrees with the respondent's submission that if the applicant were to reoffend in the context of an intimate relationship and the victim had children, there is a risk that the applicant would indirectly cause harm to those children.
8. However, having regard to all of the evidence before the Tribunal we are satisfied that the likelihood of the applicant re-offending is low. In reaching this conclusion, the Tribunal placed particular weight on the evidence of Ms Hare and Dr Powell who each presented as balanced and professional witnesses. Their evidence was uncontradicted by any other expert evidence.

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

1. In evidence before the Tribunal was an affidavit of the applicant sworn 15 June 2016. The applicant also gave sworn evidence at the hearing and was cross-examined. A certificate under s 128 of the Evidence Act was given in respect of the evidence he gave in relation to the allegations that he digitally penetrated his wife while she was asleep on many occasions. He gave evidence that at times he considered this as part of foreplay between him and his wife and that sometimes it "worked" in the sense that she would respond and they would have consensual sex.
2. The applicant says he has reflected on his relationships with his former wife and de facto wife. He says he is a very different person now to how he was at the time of those relationships. He believes these changes are the direct result of the counselling he has had and the experience of being charged and convicted.
3. The applicant gave evidence that he has had a number of intimate relationships since the relevant offence occurred and there have been no adverse reports of his conduct in those relationships.
4. He said he pleaded guilty to the offence at the first available opportunity as he felt genuinely remorseful for his conduct and did not want to put his wife through the trauma of giving evidence at a criminal trial. He described his behaviour as "abhorrent."
5. When asked about his understanding of appropriate professional boundaries when working with young people he said he has always maintained appropriate boundaries with young people with whom he comes in contact including at his workplace. He says he has no sexual interest in young people and has never behaved inappropriately towards a child. He contends that he does not pose a risk to children.

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

1. It is the respondent's contention that the applicant has not discharged his onus. The respondent says the impact on the applicant's wife of the offence was significant and the breach of her trust was considerable. In the respondent's submission neither the offence, or the Form 1 conduct, is an aberration when viewed in the broader context of the sexual activity reported by the applicant's wife who described in her statement to Police digital penetration without her consent occurring on many occasions while she was asleep and her waking up and telling the applicant to stop.

Consideration

1. In our opinion, having regard to all the material before the Tribunal, the applicant has discharged his onus.
2. The disqualifying offence and Form 1 conduct were at the less serious end of the scale of such offences and occurred over 10 years ago. We agree that the further reports of conduct of a similar nature by the applicant during his marriage to his wife are of concern as are his other offences. However, there is no evidence of any further reports of adverse conduct by the applicant since that time.
3. We accept that there is some evidence which indicates that the applicant's children may have been indirect victims of his violence towards his former de facto wife. However, the victims of the disqualifying offence, the Form 1 conduct, the common assault offence, and other complaints of sexual assault, were both aged over 18. This does not lessen the seriousness of these offences and complaints, however we are satisfied on the material before the Tribunal that the applicant has an understanding of what led to these offences and complaints and that he has taken steps which include extensive counselling and therapy, together with self-reflection, to ensure he does not reoffend or give cause for such complaints to be made against him.
4. The Tribunal is satisfied that the applicant now has real insight into the gravity of his behaviour and sincerely regrets his actions and their adverse impact on his former wife, and former de facto wife. The Tribunal accepts that he has learned from his actions at considerable personal cost. There has been a genuine and sustained effort on the part of the applicant to remedy the offending conduct. Remorse expressed by the applicant, on its own, has not been considered to be a significant factor that mitigates risk.
5. The Tribunal has placed particular weight on the uncontradicted evidence of Ms Hare and Dr Powell who state the applicant is a low risk of re-offending. The applicant has been in stable employment for many years and has the support of his two sisters who are both registered health professionals. He has a close and ongoing relationship with both of them and their families. He has not been charged with any offences against children nor been the subject of any specific complaints involving children.
6. Accordingly, we are satisfied the applicant has discharged his onus and has rebutted the presumption that he poses a real and appreciable risk to children and on that basis it is appropriate for the Tribunal to make an enabling order.

ORDERS

1. Accordingly, the Orders of the Tribunal are as follows: 1. Declare that the applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), of which he was convicted on 30 June 2011. 2. Pursuant to s 28 (6) of the Child Protection (Working With Children) Act 2012, the respondent is to grant the applicant 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: 26 April 2017