CKD v Children's Guardian

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Bundle of Documents filed 19 January 2016 including application; final notice dated 20 December 2015 from the Office of the Children's Guardian attaching Reasons for Decision to refuse Working With Children Check clearance; notice of interim bar and proposed refusal of application dated 30 September 2015 from the Office of the Children's Guardian; and Statutory Declaration of applicant dated 14 October 2015 - Exhibit A1; 2. Bundle of Documents filed 8 April 2016 attached to CKD's Response to Refusal to Grant WWCC- Exhibit A2;
2. 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 2 March 2016, comprising 635 pages - Exhibit R1; 2. Further documents filed by the respondent on 25 May 2016 comprising documents produced pursuant to notices issued under section 31 of the Child Protection (Working with Children) Act 2012 (NSW) and correspondence with the applicant - Exhibit R2; 3. Additional documents filed by the respondent on 15 June 2016 comprising response to the request for further information from the applicant received by email on 21 April 2016 and documents produced pursuant to a summons to produce issued to Hays Specialist Recruitment Pty Ltd - Exhibit R3.
3. The applicant filed written responses on 19 January 2016 and 8 April 2016. He gave oral evidence and was cross-examined on 29 June 2016. The respondent filed a written outline of submissions on 22 June 2016.

Legislative Provisions relevant to the decision

1. 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.
2. 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.
3. The objects of the Act are 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.
4. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
5. 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.
6. The applicant was the subject of a risk assessment due to the provisions of clause 12 (a)of Schedule 1 of the Act which reads as follows: A person has been the subject of a finding by a reporting body that the person engaged in the following conduct: (a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child
7. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.
8. The jurisdiction of the Tribunal under section 27 of 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 object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children.
9. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to section 28(7) of the Act if he were a disqualified person.
10. As previously stated, the primary issue for us to decide is whether, as at the date of hearing, the applicant "poses a real and appreciable risk" to children.
11. 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.
12. 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.

The evidence to be considered

1. 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. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.
2. 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.
3. The evidence is considered below under subheadings which refer to the considerations under section 30(1) of the Act.

The seriousness of the offences that caused a refusal of a clearance and imposition of an interim bar

1. In April 2009 CKD's employer became aware that he had been watching pornography at night on a work computer while employed as a casual intensive support worker at a residential facility for youths. The content of the pornography focussed on teenagers. The applicant had also accessed news coverage of child sexual assault and rape. The police investigated the matter but informed the employer that it would be difficult to prosecute the matter successfully as they would need to prove that the girls involved were under the age of 16 years. The police officer involved considered that the girls were about 16 or 17 years of age.
2. Computer records provided to the Tribunal showed that on 28 February 2009, 2 March 2009, 7 March 2009 and 8 March 2009 the applicant accessed sites which included the following: Wild Cherries - teen thumbnail galleries Virgin teen nude - Free Nude Teen. Teenage sex Free teen gallery - Sex Bomb Girls, Teen Nude girls Teen Dreams LezCuties Hot college girl pictures and videos Vibraporn - Daily updated hardcore teen free porn blog Teen Ass Your source of free lesbian sex. Galleries of teens, girls and the best babes of the internet Babes and Bitches.net - your daily blog of babes and bitches of the best internet porn - Brynn Tyler School Girl Babes and Bitches.net - your daily blog of babes and bitches of the best internet porn - Sierra Snow Schoolgirl
3. On 20 July 2009 the employer telephoned CKD and invited him to a meeting to discuss the concerns. CKD responded that he did not consider it necessary given he was no longer employed by the service. After being informed of the necessity to meet despite him no longer being employed by the service, CKD agreed to meet on 24 July 2009 but then cancelled that appointment. On 28 July 2009 the applicant was again telephoned by the employer and was informed that the matter had been referred to the police and the ombudsman. A further interview date was set for 7 August 2009. The applicant again failed to attend and on 18 August 2009 the employer sent a letter to him outlining their concerns and the actions that had been taken.
4. On 1 October 2009 the applicant responded to the allegations in an email to the employer. He asserted that he was at work searching for information and that a window popped up with pornographic material in front of the other work pages. He tried to close the window but more windows popped up and he turned the machine off and restarted it.
5. There is evidence from the employer that the sites accessed by CKD were deliberately accessed over long periods of time and that key logging (software which records what keys are typed into the browser) records actual sex oriented websites being entered, dismissing the theory that windows were randomly popping up.
6. In his response dated 8 April 2016 the applicant asserts that the sites he viewed were not child pornography as it was not proven that it related to girls under the age of 16 years. The applicant notes that the criminal age of consent is 16 years of age.
7. Under cross-examination the applicant stated that all the images he viewed were of adult naked women. He asserted that he did not deliberately access the sites but that they 'just popped up'. He said words to the following effect: I have never searched for it. I'm a male. I was looking at pictures of adult women. I wasn't reading the names of the sites. I was just looking at pictures. I must have clicked on a few things. I maintain that all the images I saw were of adult women. I realised what I was doing and tried to shut it off.
8. When it was put to CKD by counsel for the respondent that he had deliberately accessed pornography sites two nights later, CKD stated that: It's no excuse. Part of the work is that you wind down. There is no TV (in the office); its not the best place to do it. I was looking after one male kid who was 14 years old. We had dinner. We went out during the day. I made sure he showered, we cooked dinner and watched some TV. He goes to bed and unless I hear a peep I am in the office.
9. Counsel for the respondent notes in their submission filed on 22 June 2016 that a child is a person under the age of 18 years and that the police officer's concerns that the girls depicted are under the age of 18 years is highly relevant to the issue of child abuse.
10. During cross-examination CKD referred to the narrative from the NSW Police Force regarding why the case was closed (page 335 of Exhibit R1 and A2) and the statement that: With the assistance of intelligence staff the age of the persons in the viewed pornography is at minimum 17 and over, and hence not a child. CKD asserted that this is proof that the pornography did not involve children.
11. Under cross-examination CKD acknowledged that he 'knew it was wrong to look at pornography on a work computer'. He did not deny looking at online news items about matters such as child sexual assaults and rape, stating that 'if there is a successful prosecution of a paedophile it's important. We work with children who need to be protected.' Counsel suggested to CKD that he monitors these news items because they are sexually stimulating, to which he responded that 'if this was the case wouldn't I be more likely to access pornography sites about rape?'

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

1. It is seven years since 2009 when the incidents regarding the viewing of pornography in a work environment occurred.
2. Information provided pursuant to section 31 of the Act from the Department of Community Services (DoCS) indicates that the applicant came to the notice of New South Wales Police (Sex Crimes Squad and Joint Investigation Response Team (JIRT)) and DoCS in relation to domestic violence to his ex-partner and sexual abuse concerns in relation to his son in 2012 and 2014. The child made disclosures of sexual abuse to an independent person but did not repeat them to police.
3. The Children's Guardian did not cross-examine the applicant about the domestic violence or child sexual abuse allegations.
4. In response to questions from the Tribunal, the applicant denied that the reported incidents took place and asserted that the allegations were made in the context of acrimonious Family Court proceedings. He stated that the matters were fully investigated by JIRT and the NSW Police without any charges being laid. CDK stated that: 'It is unfortunate that these two events (the pornography and the child abuse allegations) have come together. If I had a bit more discipline it wouldn't have come about'.

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

1. The applicant was 31 years of age in 2009.

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

1. There are no specific named victims of the teen pornography but the females who were depicted are thought to have been 16 or 17 years of age.
2. The child in the applicant's care was 14 years of age.
3. The applicant's son was 3 or 4 years of age at the time the allegations of sexual abuse were made.

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

1. The difference in age between the applicant and the females depicted in the pornographic material is approximately 15 years.

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

1. The applicant concedes that the females depicted in the pornographic material could have been 16 or 17 years of age. He denies that they were under the age of 16.

The person's present age

1. The applicant is now 38 years of age.

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

1. The applicant has a criminal history between 1993 and 2006 including non-trigger concerning convictions for AOABH in 1993; three counts of Robbery in Company in 1993; and possession of prohibited drugs and supply of a prohibited drug in 1997. He also has convictions for travelling without a ticket, breach of bail conditions, using an unregistered vehicle and driving with an expired licence.

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

1. The respondent asserts that the applicant has not provided any information to demonstrate that he is not a risk to children, given his work place record in 2009. The applicant has not provided a psychological assessment of his risk.
2. The respondent referred the Tribunal to previously considered matters involving the effect of possession of child abuse material. In BGX v Children's Guardian [2014] NSWCATAD Dr Westmore, a psychiatrist, gave evidence that the viewers of 'hands off' child abuse material leads to a market which encourages 'hands on' child abusers. The respondent argues that the inability to diagnose or label the applicant's behaviour as paedophilia does not address the risk the applicant may pose to children by participating in the child pornography industry, or the risk he may pose more generally.
3. The respondent noted that in CFJ v Children's Guardian [2016] NSWCATAD the Tribunal followed BGX and held that: The victims of exploitation for the purposes of pornography provide income for the pornography industry. Without consumers for that pornography that industry would not exist. Consumers of pornography, as explained by Dr Westmore in BGX v Children's Guardian, therefore provide a financial incentive for exploitation of sexual material which includes the images of young people who look like they are under the age of 18 years.

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

1. In his 8 October 2015 submission the applicant states that: 'I can assure you that I am not the same worker I was 5 years ago and have continued to improve all my approaches to working in the community welfare sector.'
2. During the hearing the applicant stated that he has always been diligent except for the one incident and that he has tried to be 'cautious and careful'. He asserted that the respondent has 'rested all their arguments on the view of a police officer from a phone conversation' and stated that this opinion 'contradicts the result of other investigations'.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian submitted that after listening to the evidence of the applicant, the Tribunal could not rely on his truthfulness. Counsel referred to his non-disclosure of aliases and non-disclosure to his employment agency of his employment with the organisation which reported his viewing of pornographic material. Counsel submitted that although it might have been an accident on the first occasion CKD viewed the pornographic material, the applicant has admitted viewing these sites in private previously and it is implausible that he repeatedly accessed the sites by accident at work. Counsel argued that the viewing of news items regarding sexual assaults is very concerning and that the applicant's explanation for accessing those sites is 'unacceptable'. Any explanation that he had a duty to keep abreast of such new items is 'false and should be rejected'. The Children's Guardian also asserted that the credibility of the applicant is 'of the essence' and the Tribunal cannot accept his credibility and has no choice but to find him a risk to children.
2. The respondent asserted that the applicant's denial of his sustained misconduct matters in 2009 and the recent history with his own family regarding allegations of sexual abuse and domestic violence are grounds for him being refused a Working with Children Check clearance. At the hearing counsel submitted that the evidence in support of the allegations of child abuse of CDK's son is less clear and that the Tribunal does not need to make any finding about these matters because the child pornography and news item issues are 'significant enough'.
3. Consideration
4. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while 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.
5. The key issue to be decided is whether the applicant, at this time, poses a real and appreciable risk to the safety of children. The Tribunal must have regard to the matters set out in section 30 of the Act together with any other relevant matters. In assessing whether the applicant poses a real and appreciable risk to the safety of children, the Tribunal considers both the probability of reoffending and the nature of the conduct. Consideration must be given to all relevant facts including the nature, frequency, incidence and recentness of any relevant conduct, together with the actions taken by the offender to implement risk management strategies. As the Tribunal noted in BQU v Children's Guardian [2015] NSWCATAD 121: In practical terms, unless the evidence provides a real satisfaction that a person's offending conduct was atypical and most unlikely to be repeated, there will always be some apprehension that the person may re-offend.
6. The conduct which triggered this assessment is serious. At the time the incidents took place the applicant had completed a degree in Behavioural Health Science and was 31 years of age; his conduct cannot be seen as the result of immaturity or lack of knowledge about what is appropriate behaviour when caring for a vulnerable adolescent.
7. The applicant did not acknowledge the inappropriateness of his conduct in watching pornography while at work caring for a vulnerable boy of 14 years of age but rather sought to minimise his conduct, stating that 'I was careless'. Rather than demonstrating an awareness of the inappropriateness of his behaviour, he focused on asserting that the pornography he viewed was of adult women, not of girls under the age of 16 years of age. Despite this assertion, it is apparent that the applicant was seeking pornographic sites depicting teenagers and schoolgirls, given the titles of the sites he repeatedly accessed.
8. It is not necessary for the Tribunal to make a finding as to whether the pornographic material viewed by the applicant related to women or children. Clearly the viewing of child pornographic material would constitute a crime and be a more serious offence. However, the repeated and deliberate viewing of any pornography while at work, in breach of his employer's policy and while caring for a vulnerable child, constituted serious workplace misconduct, was highly inappropriate behaviour and showed a serious lack of judgement.
9. The Tribunal agreed with the respondent that the applicant lacked credibility in relation to his assertions that he did not deliberately access the pornographic sites he viewed but that they 'popped up'. While this could have occurred the first time the pornographic material was viewed, it is not plausible that it happened on subsequent occasions and is not consistent with the objective key logging software evidence that the sites were accessed by the applicant. It is also not credible for the applicant to assert that the computer could have been accessed by other employees given that, as he acknowledged during the hearing, he was the only staff member on duty in the house at the times the viewing of the pornography took place.
10. The applicant was reluctant to admit the offending behaviour and avoided dealing with the issue when asked to do so by his then employer. The Tribunal is also concerned about the applicant's practice of accessing media stories about matters such as child sexual assaults and rapes and did not find his explanation plausible. If, in fact, it was considered to be a normal work practice, his employer would not have been concerned about the applicant accessing such sites. Although he stated in his 8 October 2015 response that he is 'not the same worker as I was 5 years ago' he has provided no information as to how he has changed. He appears to lack insight and has not sought any counselling. There is no evidence that he has developed any risk management strategies to avoid any repetition of the offending behaviour. He has not provided adequate evidence that he does not pose a risk to children if he engages in child-related work.
11. The Tribunal did not place any weight on the applicant having a serious past criminal record, given that none of the offences were trigger offences for a risk assessment by the Children's Guardian and that the last offence (except traffic offences) occurred in 1997. The Tribunal also did not place significant weight on the allegations of child sexual abuse made in the context of the applicant's Family Court proceedings given that the child did not repeat the allegations to police. However the report made by the child to an independent person cannot be entirely ignored and does not assist the applicant's case.
12. 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 pose a risk to the safety of children and that the decision under review should be affirmed.

Order

1. The decision of the Children's Guardian dated 20 December 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 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: 28 July 2016