Working with Children- disqualifying offence - French kiss. Enabling application.
Legislation Cited: Crimes Act 1900
Child Protection (Working With Children) Act 2012
Administrative Decisions Tribunal Act 1997
Administrative Decisions Review Act 1997
Source
Original judgment source is linked above.
Catchwords
Working with Children- disqualifying offence - French kiss. Enabling application.
Legislation Cited: Crimes Act 1900Child Protection (Working With Children) Act 2012Administrative Decisions Tribunal Act 1997Administrative Decisions Review Act 1997Cases Cited: Commissioner for Children and Young People -v- V [2002] NSWSC 949Office of the Children's Guardian v CFW [2016] NSWSC 1406BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1Commission for Children and Young People v FZ [2011] NSWCA 111
Judgment (15 paragraphs)
[1]
Introduction
CVS at all material times has been the proprietor and operator of a pet supply business.
V was a customer of this business from about October 2014.
V usually dealt with CVS when she went to the business.
In about April 2015, she began having problems regulating the temperature in her fish tank. CVS gave her advice and also attended her home and worked on the fish tank.
In October 2015 the large fish that she had purchased for her fish pond died. CVS came to her home again and tested the water in the tank. He found that the painted gravel in the fish pond was diseasing the fish. He also found that there was insufficient air being injected into the tank. He also recommended that she obtain some snails and aquatic plants.
He drove her to his store to obtain the materials. She did not have funds with her to pay and he suggested that she could pay "whenever".
He drove her home. He removed the old gravel and replaced it with new gravel. He then set up the rest of the supplies in the tank.
When he had finished, CVS grabbed her and kissed her. After he left she reported him to the police. As a result, CVS was charged with "assault with act of indecency". The offence was under Section 61L of the Crimes Act 1900.
On 12 October 2015 CVS pleaded guilty in the Local Court to that offence. He was placed on a good behaviour bond for a period of 12 months. CVS appealed the decision on the ground of severity only and the appeal was heard by the District Court at Newcastle on 12 September 2016.
The appeal was refused and the decision of the Local Court was confirmed.
Police also obtained an Apprehended Violence Order restricting the conduct of CVS for purposes of the protection of V.
On 16 September 2016 CVS applied to the Children's Guardian for a Working with Children Check Clearance under the Child Protection (Working With Children) Act 2012 ("the Act").
The proven offence in the courts made CVS a disqualified person under the Act and therefore the Act prohibited the Children's Guardian from issuing CVS with a Working With Children Check Clearance.
On 15 November 2016 CVS filed an application in the Tribunal seeking an enabling order so that he could obtain a check clearance.
The hearing of that application was on 3 April 2017 and the Tribunal granted the application. These are the reasons for the decision.
[2]
Relevant Legislative Provisions
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 this Act."
Section 6 of the Act provides that a person who is engaged in "child-related work" for purposes of the Act if the work involves direct contact by the worker with children. It also lists in ss6(3) a series of roles that are ""child- related roles" and in ss6(2) lists a series of areas of work which may be declared by the regulations to be child-related work.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act requires that a prospective adoptive parent and any adult resident of the home of the prospective adoptive parent, must apply to the Children's guardian for a Working With Children Check Clearance.
Section 12 provides that there are two classes of Working with Children Check Clearances which are:
1. Volunteer - authorising workers to engage in unpaid child-related work;
and
1. Non-volunteer - authorising workers to engage in paid and unpaid child-related work.
Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18 (1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was born on 19 September 1957 and was an adult at the time of the offence.
In para 1 (e) of Schedule 2 to the Act, an offence under s61L of the Crimes Act, 1900, is included in the specified offences that are disqualifying offences.
Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the applicant because of the offence in October 2015.
Section 28 of the Act provides:
1. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.
2. The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
3. A disqualified person may make an application under this section only if:
1. the person has been refused a working with children check clearance, or
2. the person's clearance has been cancelled, because the person is a disqualified person.
1. 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.
2. An applicant must fully disclose to the Tribunal any matters relevant to the application.
3. If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.
4. 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.
5. An enabling order may not be made subject to conditions.
Section 30 of the Act provides as follows:
1. The Tribunal must consider the following in determining an application under this Part:
1. 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,
2. the period of time since those offences or matters occurred and the conduct of the person since they occurred,
3. the age of the person at the time the offences or matters occurred,
4. 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,
5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
6. whether the person knew, or could reasonably have known, that the victim was a child,
7. the person's present age,
8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
10. any information given by the applicant in, or in relation to, the application,
11. any other matters that the Children's Guardian considers necessary.
1. (1A) The Tribunal may not make an order under this Part which has the effect of enabling person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
1. A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work; and
2. It is in the public interest to make the order.
1. 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 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.
1. Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.
A literal interpretation of "a risk assessment … to determine whether the applicant ….poses a risk to the safety of children", is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section:
"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42]
"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, 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 'risk' with the words that follow, namely, 'to the safety of children'.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 Harrison J, in discussing the role of the Tribunal in matters such as this, held:
1. 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.
2. 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."
1. 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].
2. 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. An Applicant must fully disclose to the Tribunal any matters relevant to the application: s. 27(4).
In determining an application for review, the Tribunal is to decide what is the correct and preferable decision is having regard to the material before it (s 61(1), Administrative Decisions Review Act 1997).
Neither party bears an onus in an application for review under s. 27 of the Act. BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1 at [39]-[40].
The Tribunal has previously held that in an application under s. 27 a clearance may not be granted subject to conditions: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65; CDX v Children's Guardian [2016] NSWCATAD 17 at [36].
It is important to note that the scheme of the Act is protective and not punitive (Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]).
[3]
The Evidence
The evidence before the Tribunal comprised the following:
1. Review application filed with the Tribunal on 15 November 2016 including the following attachments:
1. Submission by applicant;
2. Copy of letter from Children's Guardian to applicant notifying applicant of decision;
3. Submissions dated 7 February 2017;
4. Statutory declaration of the applicant of 7 February 2017;
5. Character references from 5 character witnesses;
6. Photos of awards from RSL and Legacy and Australia Day award for services to the community;
1. Report of Dr D G Gilligan, Forensic Psychologist, of 12 June 2016;
2. Agreed facts produced by police in relation to Local Court proceedings;
3. Section 31 Response from NSW Police Sex Crime's Squad;
4. Criminal history of the applicant;
5. COPS Event entry of 12 October 2015;
6. AVO history;
7. Apprehended Violence Order;
8. Section 31 response from Scout's Australia NSW;
9. Section 31 response from Newcastle Local Court;
10. Section 31 response from Newcastle District Court;
11. Section 18 notice to disqualified person;
12. Section 31 response from FACS;
13. Section 31 response from Rotary Youth Exchange;
14. Section 31 response from Newcastle District Court:
1. Transcript of proceedings dated 12 September 2016;
2. Judgment dated 12 September 2016.
1. Documents produced under summons by Girl Guides;
2. Documents produced under summons by Variety;
3. Response from Central Hunter Local Area Command of police department (pp 56-112);
4. Oral evidence of the applicant on 3 April 2012; and
5. Oral evidence of Dr Gilligan on 3 April 2012.
[4]
The seriousness of the offence with respect to which the person is a disqualified person
The agreed facts submitted to the court in the proceedings and redacted and signed by the applicant can be summarised as follows:
1. About 12 months before the offence, V started using CVS's store for the supply of pet supplies. She dealt mainly with CVS.
2. About 6 months later when she had problems with her fish tank, he advised her and also called on her and assisted her to overcome a problem of not being able to regulate the temperature of the tank. He telephoned her before he went to her home.
3. He did work on the fish tank which took about 30 minutes and she was present while he did it. He then left.
4. V continued to visit the pet supply store monthly and whenever she arrived at the store CVS would say "oh, here comes trouble".
5. In September 2015, V purchased a large fish for her tank, but it died on 12 October. V sent a message to CVS's wife telling her what happened.
6. On 12 October 2015 CVS went to V's house unannounced. V is a single woman who lives with her aged mother.
7. When CVS he told her "I'm here to look at your fish tank". She told him there was nothing wrong with the fish tank and she had tested it. He said he would come in and check the tank.
8. He then advised her and told her of the remedies he suggested. He said it was urgent because there was "not enough air getting into the tank" and the gravel in the bottom was painted and that was "diseasing" her fish. He said he would go and get the requirements for the work. He left and she went with him to the supply shop.
9. He obtained the requirements. She didn't have money to pay him and he told her "fix me up whenever".
10. He then got in his car and drove back to V's home. They attended to the fish tank. He did the work. After he had done the work, he came up behind V, without saying anything, and cuddled her from behind.
11. V managed to turn to step back away from CVS and was side on to CVS at this stage. CVS started to lean in and his face was closer to V's face, and V was trying to pull back. CVS had a firm hold of V and kissed her lips with an open mouth. V could feel CVS's tongue pressing her lips. V kept her mouth closed the whole time and was trying to pull away.
12. V managed to pull free and stepped back about a metre with both her hands up, palms facing CVS like stop signals. V firmly said to CVS "The fish tank is fine, you can go now". But CVS kept advancing towards V. V kept stepping backwards away from CVS.
13. V started walking towards the front door through the hallway. She tried to get CVS to leave. She kept telling him "You can go now, you can leave". She pushed him backwards out of the front door using 2 open hands to push him on the chest. He said "I'll see ya later Trouble".
The whole ordeal lasted about 5 minutes. V decided to report the matter to the police.
Police notified CVS at about 2:30pm on Monday 26 October 2015 that a complaint had been made and requested that he attend the police station the following day, 27 October 2015.
At about 5:30pm on Monday 26 October 2015, CVS went to V's home unannounced. She opened the door and he said "Hello Trouble". V said "what are you here for?" and CVS replied "I've just called in to check the fish tank".
V said "why? It's going well". CVS said "Oh, I just want to have a look". V allowed him entry and CVS, V and V's mother all went to the fish tank. After that V's mother left the room. CVS said to V "I'm sorry if I overstood my mark the other night and took it too far. I hope everything's okay?". V said "yeah, it's fine. Go". CVS left immediately.
When CVS was charged by the police on Tuesday, referring to his second visit to her home on the Monday, said "at that stage I didn't know what this was all about".
It appears that the act of indecency which was an element of the offence of which CVS was convicted, was attempting to insert his tongue into the mouth of V.
The police record of V's complaint on 26 October 2015 records that she alleged that CVS, while he was cuddling her from behind, moved his hands up to her breasts and squeezed her breasts quite hard, whilst trying to kiss her on the neck. But these allegations were not part of the facts that were admitted and signed by the applicant in the Local Court. That alleged conduct was not admitted.
In CVS's submissions to the Judge he said: "I had known V for about 12 months and actually thought our kissing was consensual because we did it on every occasion we met, and on her instigation after her 3rd visit, before which I had given her some help with her tank".
The Judge declined to take those submissions into account as they were not included in the agreed facts, and the complainant was not present at the appeal hearing, but CVS then said "Your Honour, as soon as I realised the lady wasn't comfortable, I stopped and backed away, and on each occasion that she would visit me or I would visit her at her home to help her, she always insisted on a kiss. That's why I thought it was consensual".
In his statutory declaration of 7 February 2017, the applicant did not discuss the conduct that comprised the offence.
Because these matters were not raised in the Local Court, and were not included in the agreed facts, and also because CVS on the agreed facts persisted with the conduct after V had told him to stop, the Tribunal can only assume that what he told the District Court about the kissing on previous occasions was an attempt by CVS to minimise his conduct that was the subject of the conviction.
When the District Court Judge on 12 September 2015 raised that the allegations of previous kissing not raised in the Local Court at the hearing in June 2016, CVS then said that he had requested his barrister to put those matters to the court at the Local Court hearing, but the barrister failed to do so.
In his oral evidence in cross examination on 3 April 2017, CVS confirmed his allegations about kissing when they had met on prior occasions. He said "on the 3rd visit to my shop she put her face up and demanded a kiss, on the lips". He was asked "did she kiss you back?" and he replied "she was the one doing the kissing".
Then he said "the difference was this one I initiated and it wasn't open mouthed. My barrister crossed that out". He said his barristers were supposed to tell the District Court "the only difference was I initiated the kiss. I deny she was backing away". The allegation of him kissing "open mouthed" was not deleted. Again it appears CVS was seeking to minimise the offence.
The denial of her backing away was not raised with the District Court or the Local Court, and seems to be another minimisation of the offence by the applicant. He said of the agreed facts "I made a mistake in not checking it carefully". Dr Gilligan, who is a Clinical and Forensic Psychologist, has a PhD in research into pathways to violent offending and risk assessment. He has a ' degree in Clinical Psychology and research on self-regulation and offence process models.
Dr Gilligan saw CVS for 2 hours on 2 May 2016 for the purposes of preparation of a report, presumably for the Local Court hearing.
Dr Gilligan reported that CVS told him "the events of the offence constituted an unwanted kiss".
He also reported:
"there had been what [CVS] perceived to be some regular flirting ongoing between them. [CVS] admitted he kissed her. He told me he apologised to her and acknowledged perhaps that things went a bit too far. It came as a shock to [CVS] when the police call him into the police station to assist with an investigation".
Dr Gilligan said that CVS said he "feels somewhat perplexed by [V's] behaviour as he was confused by the signals she was sending him, and was shocked by her complaint to the police".
It appears that there is further minimisation here by CVS in describing the offence as merely "an unwanted kiss". He did not disclose that he had grabbed V from behind and then kept kissing her despite her resistance, and her being non-accepting of the kiss.
The Tribunal accepts the version of the offence as stated in the agreed police facts as being the most reliable evidence of the conduct of CVS that constituted the offence, and a forced kiss which was resisted.
He continued to restrain the victim and to attempt further kissing when she made it clear that she did not want to kiss.
The Tribunal does not accept the evidence, such as it is, that there was flirting by V previously, or that V on any previous occasion "demanded" a kiss.
The seriousness of the offence was that it was an assault where he took hold of the victim and restrained her and forcibly kissed her without her consent. She did not suffer any injury. She was shocked at his behaviour and fearful of what he might do when he continued his behaviour after she made it clear she did not want to be kissed and continued to remain after she told him to leave.
Her experience of the incident was aggravated by the fact that she had been sexually abused as a child.
The maximum penalty for the offence under Section 61L is imprisonment for 5 years. The Legislature regards such offences, in terms of the penalty, as at the lower end of the spectrum of sexual offences against a person.
The court dealt with the matter by way of a bond and the District Court confirmed those orders. That reflected partly the fact the CVS had no prior criminal record, the offence was at the lower end of seriousness of offences under the section, V was not injured, V was an adult, 48 years of age, and CVS was 58 years of age and had no criminal record.
[5]
The period of time since the offences or matters occurred and the conduct of the person since they occurred
It is 18 months since the offence occurred and there is no evidence of any untoward conduct by CVS since it occurred.
[6]
The age of the person at the time of the offence
The applicant was 58 years of age when the offence occurred.
[7]
The age of each victim as the time of the offence and any matters relating to the vulnerability of the victim
The victim was 48 years of age at the time of the offence and her vulnerability was that she was a woman, that she taken by surprise by the conduct of CVS, and apart from her very aged mother, she was alone in the house with CVS.
[8]
The difference in age between the victim and the person, and the relationship, if any, between the victim and the person
The extent of their relationship has already been discussed earlier in the reasons. There was approximately 10 years difference in age.
[9]
Whether the person knew or could reasonably have known that the victim was a child
The victim was not a child.
[10]
The seriousness of the person's criminal record and the conduct of the person since the offence occurred.
The conviction for the offence is the only conviction recorded against CVS. The evidence does not disclose any charge or conviction for any other offence or any complaint of any untoward conduct..
There was an AVO obtained by the police at the time of the Local Court proceedings. That order expired on 14 June 2016.
[11]
The likelihood of any repetition by the applicant of the offence and the impact on children of any such repetition
In his 59 years, CVS has not been convicted of any other offence.
The Children's Guardian does not support or oppose the application for a clearance.
Dr Gilligan's report is 7 pages in length. It is a sound and thorough report. He reports that CVS "has never experienced mental health problems or suffered from severe depression or psychotic disorders".
In assessing risk, Dr Gilligan used structured professional judgement tools being Sexual Violence Risk 20 (SVR-20) and also Static-99.
In using those tools, Dr Gilligan assessed CVS as having a low score on both static variables and dynamic variables and concluded that CVS is a low risk of repeating a sexual or physical assault on another person, including a child.
The effect of a physical or sexual assault on a child can be lifelong and very damaging. But the only expert evidence that the Tribunal has before it says that the risk of further offending is lower than the average risk attaching to a male person in the community.
[12]
Any information given by the applicant in or in relation to the application
The evidence of CVS is that he has never had any other complaints, charges, allegations or disciplinary proceedings against him in paid work or any other unpaid work he has undertaken in the community.
For about 17 years he has donated over $10,000 per annum in goods and services from his business to charities.
He has done voluntary work for a church, window tinting the bus, prepared banners and signs for local sporting youth, and religious or service groups. He has done other art work for the charity Variety Newcastle Region, which raises funds for the care of disabled children..
He and his wife have accommodated 3 youths (1 male and 2 females) through Rotary International Youth Exchange.
He and his wife have received a plaque from the RSL for services to that organisation, and he has been awarded an Australia Day award from the Tidy Towns organisation.
The organisations he has worked for and donated to include Rotary, Tidy Towns, RSL, Legacy, Scout Association, Girl Guides, and Variety.
For 16 years he has attended Variety bashes, a week long fund raising annual event. He has also attended various Variety mini bashes over several days.
He has sponsored Scout Association and Girl Guides for services and assisting in projects and fundraising.
He has assisted Legacy and RSL with projects, sponsorship and by assisting in projects and fundraising.
The applicant has relied on 6 character references from members of the community who have known him for long periods and mostly in relation to his charitable services and membership of community organisations. Their evidence is that this offence is wholly out of character for CVS.
CVS has been married to his wife for about 32 years. Their first child was born with a genetic disorder which prevented cognitive development beyond a mental age of 2 years. That child survived until she was 21 years (about 10 years ago), and in those 21 years needed full-time care and supervision that was usually provided by one of the parents.
CVS and his wife have 2 other children. Their son is 27 years and living with his partner. They plan to have children. Their second daughter is 25 years and is working as a real estate agent. She lives with her partner. They are also attempting to become parents.
[13]
Any other matters that the Children's Guardian considers necessary
The Children's Guardian's Counsel informed the Tribunal that the Children's Guardian neither supports nor opposes the application.
[14]
Conclusions
The Tribunal is satisfied on the balance of probabilities that the evidence does not establish that CVS poses any real and appreciable risk to the safety of any child.
The Tribunal is also satisfied that:
1. A reasonable person would allow his or her child to have direct contact with CVS that was not directly supervised by another person while CVS was engaged in any child-related work, and
2. It is in the public interest to make the orders.
[15]
Orders
Accordingly, the orders made by the Tribunal on 3 April 2017 were:
1. The applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of assault with act of indecency under Section 61L of the Crimes Act 1900 of which he was dealt with by the District court of NSW at Newcastle on 12 September 2012.
2. The Children's Guardian must issue the applicant with a Working With Children Check Clearance; and
3. Publication or Broadcast of the name or other identifying information of the applicant or the victim of the offence without the leave of the Tribunal is prohibited
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 May 2017