The applicant's evidence as to the circumstances of the offences
The applicant's written and oral evidence to the Tribunal was consistent with his evidence at his trial in 1998. He told the Tribunal he had a romantic relationship with C in Iraq prior to arriving in Australia. The applicant denied asking C to marry him and said he did not ask C to marry him because her family's attitude towards him was not favourable. He said B had been aggressive towards him in 1994 and 1995 resulting in the applicant making a complaint to the Police. The applicant gave evidence that A, B and C had lied about the 1996 incident. He stated that A and B lack credibility and have been connected to honour killings in Iraq.
In cross-examination, the applicant told the Tribunal he had a gun that belonged to someone else in his car that he was taking to be fixed when he saw B and his wife in 1996. He also stated that at the time, he did not know that B had an AVO against him: he believed that only C did.
The applicant said it was a coincidence that he had been parked outside C's house in 1998 as he did not know she lived there. He said that B had approached him aggressively and the applicant only engaged in the knife fight in self-defence. At his trial in 1998, the applicant stated that he did not know that there was firearm in his car nor bullets in his pocket. He stated that the Police said they found it but he was injured and unconscious at the time from wounds inflicted by B's knife.
The applicant told the Tribunal he has "moved on" from the events that occurred 18 years ago and has not been breached any law since then. He said he has not had any contact with C's family since 1998. He said that public statements he made referring to C's family in a newspaper article in 2008 about honour killings were made when he was approached by a journalist and were directed at the practice of honour killings and were not motivated by his previous issues with C's family.
In the Respondent's Closing Submissions filed with the Tribunal on 11 July 2016, Ms Douglas-Baker refers to "internal inconsistencies" in the applicant's evidence before the Tribunal as well as the manner in which some of his evidence contradicted evidence he had given at his trial in 1998.
The Tribunal notes that the applicant was not legally represented before the Tribunal and gave his evidence through an interpreter as English is not his first language. The Tribunal did find, however, the applicant to be focussed in his evidence on persuading the Tribunal he had been victimised by C's family and was the wronged party in the tensions between them rather than reflecting on or showing insight into the nature of the offences he was charged with in 1996 and 1998
The Tribunal is of the view that the 'trigger offence' that resulted in the Children's Guardian refusing the applicant a WWCC clearance (being the commencement of proceedings for the offence of armed with intent to commit an indictable offence) is an offence that falls within the upper end of seriousness for such an offence as it involved an allegedly loaded weapon being in the applicant's vehicle as well as bullets for that weapon being in his pocket.
[2]
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred
The 1998 and 1996 offences occurred between 20 and 18 years ago. There was no evidence before the Tribunal that the applicant has been involved in any other conduct resulting in charges or warranting the attention of the Police.
The applicant's evidence was that the offences only came about because of his relationship with C's family at that time. He stated that "for the past 18 years I did not breach the law and I am looking forward to build (sic) better future for my three children". The applicant stated that he attended sessions with a psychologist after he completed his sentence but did not present any medical evidence to support this. He also said that he complied with the conditions of his parole when he completed his sentence.
The respondent disputed the applicant's evidence that he had attended psychological therapy and completed his parole conditions. The respondent submitted that the applicant lacked insight into the need to rehabilitate following the offences and his imprisonment. The respondent submitted that weight should be given to the applicant's denials at his trial in 1998 of any wrongdoing and that he blames C's family for his conduct.
[3]
(c) the age of the person at the time the offences or matters occurred
The applicant was aged 32 and 35 years at the time of 1996 and 1998 offences.
[4]
(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
The named victims of the applicant's criminal conduct were all adults. The youngest of whom appears to have been C who was aged between 18 and 30 years at the time of the offences.
[5]
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person
Each of the applicant's victims was a cousin or member of his cousin's family. It appears that the applicant was older than B and C but younger than A (C and B's father). The applicant stated that he had a romantic relationship with C in 1983 in Iraq whereas the respondent alleged that the applicant continued to have romantic feelings for C in 1993 when he arrived in Australia.
At the time of the 1998 offences, the applicant did not have any relationship with C and C was married with two children at that stage.
[6]
(f) whether the person knew, or could reasonably have known, that the victim was a child
None of the named victims of the applicant's course of criminal conduct was a child.
[7]
(g) the person's present age
The applicant is currently 52 years of age.
[8]
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant's criminal record has been outlined above in sub paragraph (a) and relates to the offences in 1996 and 1998.
As stated above, the Tribunal is of the view that the 'trigger offence' was a serious offence. Taken as a totality, however, the Tribunal is of the view that the applicant's full criminal record and the fact that he has not offended for 18 years places his criminal record within the lower end of serious criminal records.
[9]
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The applicant's evidence was that his offences and conduct 18 to 20 years ago were directed at C and her family at that time and was not reflective of how he would behave towards others. The applicant submitted to the Tribunal that he:
..will not be risk to this community ever and I will obey the law of Australia because I believe we all need protection under the law so we should enjoy life and look for better future for ourself and our children
The respondent submitted that:
It is apparent that the applicant does not accept personal responsibility for his conduct in being in possession of a prohibited firearm and ammunition for use in that firearm. The applicant gave an untrue and implausible account in evidence in his criminal trial about the provenance of the rifle and his knowledge of the ammunition in his jacket pocket. The applicant has not undertaken any remedial therapy or other rehabilitation. The Tribunal cannot, in the circumstances, be confident that the applicant would not repeat his conduct of wilfully disobeying the law, harassing and/or threatening others and carrying a prohibited weapon and ammunition for use in it.
The Tribunal acknowledges that the applicant displays a lack of insight or acceptance of responsibility as to his conduct in 1996 and 1998. The Tribunal was not satisfied, however, that this necessarily leads to a finding that there is a likelihood of the applicant repeating the offences and/or conduct: particularly given that the offences and conduct last occurred 18 years ago and there was no evidence before the Tribunal of it being repeated in the intervening period.
There was no evidence before the Tribunal that the offences and conduct in 1996 and 1998 occurred in the presence of children.
[10]
(j) any information given by the applicant in, or in relation to, the application
The majority of the written evidence tendered by the applicant in support of his application related to his assertions that members of C's family were involved in honour killings in Iraq; that C and her family gave misleading evidence at his trial in 1998; and that the Police investigation into his offences was flawed. The applicant also focussed on these issues in his oral evidence. The Tribunal finds this material to be irrelevant to the matters before it for consideration.
[11]
(k) any other matters that the Children's Guardian considers necessary.
There were no further submissions from the Children's Guardian in addition to the matters raised above.
[12]
Evidence of the applicant's current circumstances
The applicant gave evidence to the Tribunal that he shares his house with D (his wife from whom he is separated) and their three children aged 12, 9 and 5 years. The applicant told the Tribunal that he has been in receipt of the Disability Support Pension (DSP) since 2007 and D is his carer.
The applicant gave evidence that D conducts an in home child care service on behalf of her employer from the premises that they share. In light of the applicant not having a WWCC clearance from the Children's Guardian, D currently provides in home child care services for her employer on the condition that the applicant is not in the house during the hours that those services are being provided. The applicant gave evidence that D cares for four children three days a week for approximately 8 hours a day. He said that care is also sometimes provided for children at night as well as the weekend. The applicant told the Tribunal that he leaves the property when the children arrive and returns after they have left. He said that he when he goes out, he either goes to the library or the local shopping centre.
The applicant gave evidence that he and D have separate finances and his only source of income is the DSP. He said that he has nowhere else to live if he could not live at his house. He also gave evidence that if he could not live at the house then he would be disadvantaged as he would have reduced access to his own children.
The applicant gave evidence that he would like to secure a job transporting children to and from school in a seven seater vehicle and he will also need a WWCC clearance for these purposes.
The respondent challenged (through cross examination of the applicant and in its written submissions) the applicant's evidence as to the number of hours D spent providing child care services as well as whether the applicant had demonstrated any intention to find employment transporting children.
[13]
Tribunal's consideration and determination
The Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.
As stated above, the primary issue for the Tribunal to determine is what the correct and preferable decision is having regards to the material before the Tribunal in relation to granting a WWCC clearance to the applicant. There is no requirement for 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) ALD 88). There is also no onus on the applicant to show that he is not a risk to children.
There was no evidence before the Tribunal that there were any children present during the 1996 and 1998 offences or conduct referred to in the evidence. There was no evidence before the Tribunal that the applicant's offences and conduct were directed at children. Furthermore, the applicant's actions were specifically directed towards specific adult members of the family on each occasion. There was no evidence before the Tribunal that the applicant's actions were executed in an indiscriminate manner where the safety of children (either as part of the family or bystanders) was put at risk.
Furthermore, there was no evidence before the Tribunal that the applicant has engaged in any criminal conduct for the past 18 years or that he has exhibited any other behaviour that may pose a risk to children.
The Tribunal cannot be satisfied there is sufficient evidence before it to find that the applicant poses a real and appreciable risk to children.
The jurisdiction of the Tribunal is protective of children and not punitive of the applicant. The decision to refuse the applicant a WWCC clearance has a current and prospective punitive impact upon him. The applicant must currently leave his own home for hours at a time during the day and night when D is caring for other's children on the premises. Furthermore, if the need arose for the applicant to leave the premises permanently because he does not have a WWCC clearance then he would need to find alternative accommodation which may be challenging given his only source of income is the DSP. He would also no longer be living with his own children. Alternatively, if D had to stop providing in home care to children because the applicant is not able to leave the premises then she would lose her only source of income.
[14]
Conclusion and Orders
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 therefore receive a WWCC clearance.
It follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian to not grant the applicant a WWCC clearance.
The Tribunal orders:
1. The decision of the Children's guardian dated 4 March 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside.
2. In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2016
Parties
Applicant/Plaintiff:
CMI
Respondent/Defendant:
Children's Guardian
Legislation Cited (7)
whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 NSW) Child Protection (Working with Children) Act 2012(NSW)
The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states:
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 having working with children check clearances.
Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person who is refused a WWCC clearance but to eliminate possible risks to the safety of children.
'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning.
The term 'child related work' is broadly defined in section 6(2) of the Act. It includes "education and care services, child care centres, nanny services and other child care".
Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.
The Act contains a similar prohibition on an employer, employing or continuing to employ a person in 'child related work' where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance.
Division 3 of the Act relates to "Additional persons who must obtain clearances". Section 10 in Division 3 provides:
10 Adult persons residing with authorised carers or persons providing home care services
(1) An adult person (other than an exempt person) who resides on the same property as an authorised carer or on a property where a home based education and care service or family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children's Guardian for a clearance. Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(2) The designated agency (that authorised the authorised carer) or the approved provider (of the home based education and care service or family day care service) referred to in subsection (1), must ensure that the adult person complies with that subsection. Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(3) For the purposes of this section, a person no longer has a clearance or a current application for a clearance if an interim bar is in effect against the person.
(4) It is a defence to proceedings for an offence against subsection (1) if the accused person establishes that the accused person did not know, at the time the offence was committed, that the care or service referred to in that subsection was provided on that property.
(5) It is a defence to proceedings for an offence under subsection (1) or (2) if the accused person establishes that:
(a) the adult person had been residing on the property for less than 3 weeks, or (b) the offence was consequential on the adult person being subject to an interim bar, withdrawing an application, having an application for a clearance terminated or refused or having a clearance cancelled and the accused person:
(i) did not know about the interim bar, withdrawal, termination, refusal or cancellation, or
(ii) in the case of an adult person who resides on the same property as an authorised carer, had not known about the interim bar, withdrawal, termination, refusal or cancellation for more than 48 hours.
(6) For the purposes of the application of this Act (other than section 9) to an adult person required by this section to hold a clearance, the designated agency or approved provider referred to in subsection (2) is to be treated as the employer of the adult person.
(7) In this section: "exempt person" means a person who is required under another provision of this Act to, or is exempt from the requirement to, hold a working with children check clearance.
Onus and standard of proof
Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. The standard of proof applied is the civil standard, that is, the balance of probabilities.
Risk to children
The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:
One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but 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'…
In M v M (1988) 166 CLR 69, the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. The two propositions have been recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] to [17] as follows:
The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.
The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
"… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare."
Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).