The applicant applied for a Working With Children Check clearance on 13 December 2016. His application was refused by the Children's Guardian on the 7 February 2017 on the basis that he is a disqualified person under s18 of the Child Protection (Working with Children) Act 2012 ('the Act').
The disqualifying offence was his conviction in 1997 for indecent assault pursuant to s61L of the Crimes Act 1900 (NSW).
On 10 February 2017, the applicant applied to this Tribunal for an order under subsection 28(1) of the Act declaring that he not be treated as a disqualified person for the purpose of the Act. The order is known as an enabling order and, if made, will have the effect of granting the applicant a Working With Children Check clearance to work in child-related work as defined under s6 of the Act. No conditions can be placed on a Working With Children Check clearance. The Children's Guardian, who is the respondent in this matter, opposes the application for an enabling order.
The applicant wishes to be granted an enabling order for employment purposes: he is a glass worker and sometimes works in schools. The other glass workers in his company have been granted a Working With Children Check clearance and the applicant 'wants to get it sorted' for himself, too.
An application for an enabling order is required to be made within 28 days of the applicant being entitled to apply for such an order: rule 23(3) of the Civil and Administrative Tribunal Rules 2014. The applicant became entitled to apply for an enabling order on being declared a disqualified person on 7 February 2017. As his review to this Tribunal was filed on 10 February 2017, it is within time. On this basis, the Tribunal has jurisdiction to hear and determine the application.
The issue to be determined by the Tribunal is whether the applicant poses a risk to the safety of children. In the case of an application for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk (section 7 of the Act).
In considering this question, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSW SC 949 at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 at [26]):
What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children.'
The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] NSWCATAD 173 and BYR v Children's Guardian [2013] NSWADT 310, at [38].
The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under the Act and the Tribunal's jurisdiction under section 28 of the Child Protection (Working with Children) Act 2012 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSW 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children.
Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym CYI has been used for the applicant's name.
[2]
Child-related work
The object of the Act is to protect children by requiring persons engaged in child-related work to have Working With Children Check clearances. (s3 of the Act)
Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds the relevant Working With Children Check clearance or there is a current application by the person for a check clearance.
The definition of "child-related work" is set out in section 6 of the Act. In summary, a worker is engaged in child-related work if he or she is engaged in work that involves direct contact (that is physical or face-to-face contact) with children where the work is work for, or in connection with:
child development;
child protection;
children's health services;
clubs or other bodies providing services for children;
disability services;
early education and child care;
education;
entertainment for children (sporting, cultural or other entertainment venues used primarily by children and entertainment services for children);
justice services;
religious services (which includes any religious organisation)
residential services (namely refuges used for children, long term stays for children, boarding houses or other residential services for children and overnight camps for children)
transport services for children; and
any other services prescribed by the regulations.
At the time of writing this decision, work as a youth worker and as a school cleaner were also defined as child-related work in the Child Protection (Working with Children) Regulation 2013 ('the Regulations')'
According to regulation 10(1), work in schools or other educational institutions (other than universities) is child-related work.
Regulation 20(1)(a) provides that a worker who provides administrative, clerical or maintenance services, or other ancillary services is exempt from been required to have a Working With Children Check clearance if the work does not ordinarily involve contact with children for extended periods.
Regulation 21 provides that a worker engaged in child-related work and any adult person who resides at the home of the worker, and the employer of the worker, are exempt from the Act if the employer is of the opinion that the engagement of that worker is necessary in the circumstances of the case to prevent an increased risk to the safety of children, and the worker has been engaged for a period of not more than 5 consecutive working days.
It is the advice of Ms Giacomo, Counsel for the Children's Guardian, that the applicant does not need a Working With Children Check clearance in order to continue fitting glass in schools.
[3]
Disqualifying offence
On 2 June 1999, the applicant pleaded guilty to one count of indecent assault upon his then wife.
According to a statement of facts contained on file, the applicant and his wife were married in April 1997, after she had arrived from China in March 1997. On 15 July 1997, the applicant assaulted the complainant. An apprehended violence order was granted and the applicant was subsequently convicted of the assault and released on a bond to be of good behaviour for a period of two years. According to a statement of facts contained on file, on 10 August 1997 when the applicant and his wife were in bed, the applicant asked her to have sex with him. She said no as she was having her period. The applicant said that he didn't believe her, to which she replied, 'If you don't believe me you can check.' The applicant then lay on top of the complainant and touched her directly on the skin of her vagina. When the complainant then tried to push him away and said 'no', he pushed her back, and her head came into contact with the wooden bedhead, causing soreness to her neck region. The complainant then got out of bed and immediately telephoned the police.
According to court papers contained on file, it would appear that the applicant pleaded not guilty to aggravated sexual assault and guilty to indecent assault in full satisfaction of the indictment. The applicant, who appeared before Ford DCJ at Campbelltown District Court, received a recognisance to be of good behaviour for a period of three years.
There are no remarks on sentence before the Tribunal and the victim of the offence did not give evidence before the Tribunal.
The applicant gave oral evidence before the Tribunal. In relation to the offence of indecent assault, he denied having given his lawyers instructions to enter a plea of guilty and stated that his plea had been entered 'under extreme duress.' He denied having touched his wife on her vagina without her consent and denied having pushed her.
He told the Tribunal that two or three years ago, he had written to the Ombudsman to have his conviction overturned. Contained on file is a letter by the applicant dated 8 December 2016 in which he requests the NSW Ombudsman to re-open his case in relation to his conviction for the indecent assault of his wife. There is no evidence before the Tribunal that the applicant's conviction has been quashed. Accordingly, he remains a disqualified person for the purposes of the Act.
The applicant denied ever having seen the material before the Tribunal in relation to his application for an enabling order. At the second hearing date, held after an adjournment of two months, he clarified that he had 'never opened the material'. Contained on file is a copy of a letter to the applicant by the Crown Solicitor's Officer forwarding documents filed by the Office of the Children's Guardian on 31 March 2017.
The applicant wrote to the Tribunal on 2 June 2017 requesting that police witnesses in relation to the disqualifying offence be summoned to give evidence before the Tribunal. A letter was sent to the applicant by the Tribunal attaching the relevant forms and details of the summons fee. On the information before us, it would appear that the relevant forms were not completed by the applicant. The respondent requested a copy of the District Court file in relation to the trigger offence. This file was produced and is now before the Tribunal.
[4]
Criminal record
Apart from the trigger offence, the applicant has a 1997 conviction for assault (of his then wife) in Australia. He was convicted, in New Zealand, of theft of property in 1981, disorderly conduct in 1984 and 1988 and offensive behaviour in 1996.
[5]
Visiting school & child's photograph
Case notes for the applicant, which were taken during his time in custody in 1997 whilst on remand in relation to the indecent assault, state that he requested to make a call to the parents of a six-year-old girl who were friends of his. According to the case notes, he wanted to tell them that a photograph he had of the girl had been stolen from his prison cell and wished to warn the parents to 'fear for the child's safety as he lost her photos.'
In oral evidence before the Tribunal, the applicant could not remember telling the child's parents to fear for her safety, nor could he remember a prison welfare officer telling him that the child's mother had been very upset and had not wanted to have anything to do with the applicant. He denied ever saying that he could not live without the girl's photo. When asked whether he believed it was appropriate for him to have a photo of the then six-year-old child, he told the Tribunal that he also had photographs of the child's parents because he used to live with them.
According to a Police COPS Events record, on 27 April 2007 the applicant attended the front counter of a school and asked about the whereabouts of a young girl he described as a 'friend' and said that he wished to leave a present for her. The applicant was asked to leave his details then requested to leave the school premises. The principal of the school then rang both the police and the neighbouring schools to warn them of the applicant's behaviour.
In oral evidence before the Tribunal, the applicant denied having tried to approach the young girl at her school. He agreed that he had written a letter to a child he knew and that he had gone to the front counter at the school to make enquiries about the girl. He told the office staff that he had a gift for the girl - a digital camera - and left his details so the girl's mother could contact him. He explained that he used to live with the girl's parents. He told the Tribunal that he would have told the office staff that he wasn't the girl's father but rather a friend. He told the Tribunal that he had last talked to the child's mother in 1995.
He agreed that:
he went to her school and that the school confirmed the girl was a student there;
he had a gift for the student but left his name, phone number and contact details for her parents instead.
He wrote that the topic for that visit was the same photograph, which had gone missing from his personal belongings whilst he had been in custody as it was with a letter posted to his family.
[6]
Letter & approaching shop assistant
A police report dated 11 May 2015 states that the applicant contacted by text a shop assistant who had sold him a pair of earrings. In response to his text 'I like the way the earrings looked on you' and after having identified himself, the shop assistant wrote 'don't contact me again or I'll call the police.'
According to the police report, the applicant then wrote a letter to the shop assistant in which he claimed that the body of his wife had been found in the boot of her car. Allegedly making reference to the police, he wrote:
And like you I did not ask for any of this crap but you have a right to know. I suggest they were making you scared with bad storeys about me so you told others then they were going to kill you and blame it all on me. My wife also believed them.
In relation to the letter stating that his wife was found dead in the boot of her car, he told the Tribunal 'maybe I wrote that, maybe I didn't.' He denied ever writing to the shop assistant that the police would kill her, stating that the only time he mentioned the Australian Federal Police was when he said 'I'd rather travel with the AFP instead of the local police.'
In submissions to the Tribunal, he wrote that:
On August 10th 1997 my wife was raped by some corrupt members of the NSW police force. Their [sic] were also female officers involved. This means that every word on every page of the file supplied by the Crown Solicitors' officer about me is false.
[7]
Mental health
The applicant denied suffering from schizophrenia or ever having received a diagnosis in relation to his mental health. He denied ever having been referred to a psychiatrist by a welfare officer whilst he was in prison.
He denied having any problems with his alcohol consumption.
Despite being granted an adjournment by the Tribunal, the applicant did not avail himself of the opportunity to have a risk assessment report prepared by a psychologist or a psychiatrist. He told the Tribunal that he did not believe that such a report was necessary.
[8]
Applicant's experience with children
The applicant provided a letter in support of his application for an enabling order. He made a list of children, including his nieces and nephews, with whom he had contact. He gave evidence before the Tribunal that he often works with children and that it had never been an issue for him.
In relation to his risk to children, he told the Tribunal that he has six brothers and two sisters and no-one has ever contacted him about any child-related issues, including the police.
He told the Tribunal that he intends to take over the ownership of the glass company where he works and that as a glass fitter:
I am known by various staff of many schools, hospitals, old age care homes and pre-school centres, as I have worked for the same company for maybe 6 years. I have also actually lived next door to various schools and pre-schools around Sydney and their [sic] have never been any problems, as no-one has ever spoken to me. I have never heard back from the father of the little girl in the photograph as it was he who I was trying to contact but it is years ago now and forgotten. I was caught off guard by such a large file as never seen before.
[9]
Matters to be taken into consideration - section 30(1)
In determining this application, the Tribunal "must consider" those factors set out in section 30 (1) of the Act. The evidence will be considered under each of the following subheadings.
[10]
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 (s30 (1)(a))
The applicant is a disqualified person because, on 2 June 1999, he was convicted of an offence listed in Schedule 2 of the Child Protection (Working with Children) Act 2012, namely an assault with an act of indecency pursuant to section 61L of the Crimes Act 1900 (NSW).
Although we accept that this is a serious offence, we give weight to the applicant's submissions that the offence was viewed by the sentencing judge to be at the lower end of seriousness and that this is reflected in the fact that rather than being given a custodial sentence, the applicant was released on a recognisance. It has now been 18 years since this conviction. The applicant has had no subsequent criminal convictions.
[11]
The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))
The offence occurred in 1997, which is now 20 years ago. The applicant has had no further criminal convictions since then.
The applicant has, however, come to the attention of the authorities on the following occasions:
When in custody (on remand) in 1997, welfare notes document his concern that his photograph of a six-year-old girl had gone missing from his cell and he wanted to warn her parents to fear for her safety;
Following the applicant's attendance in 2007 at a school to ask about the whereabouts of this same child, the school principal contacted both the police and the neighbouring schools to warn them of the applicant's behaviour;
In 2015, according to a police report, the applicant texted a shop assistant from whom he had bought some jewellery, prompting her to threaten to call the police. The applicant subsequently wrote to her claiming that the body of his wife had been found in the boot of her car.
On the evidence before us, we accept that the applicant had a picture of a six-year-old child with him whilst he was on remand. We accept that the picture was lost. The applicant could not remember telling the child's parents to fear for the child's safety and on the evidence before us, we are not satisfied that this happened.
On the evidence before us, we accept that in 2007 the applicant attended a school to ask about the whereabouts of this child, who would have been a teenager at the time. We accept the applicant's evidence that he wished to give a present to the girl. Whilst this may simply have been a generous gesture by the applicant, we note that the principal was sufficiently concerned by the applicant's attendance at the school to both ring the police and warn them of the applicant's behaviour. This causes us some concern.
On the evidence before us, we accept that the applicant contacted a sales assistant following his purchase of some jewellery and that his contact was not welcomed by her. We also accept that he wrote to her claiming that the body of his wife had been found in the boot of her car.
[12]
The age of the person at the time the matters occurred (s30(1)(c))
At the time of the disqualifying offence, the applicant was 33 years old.
[13]
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 (s30(1)(d))
At the time of the disqualifying offence, the victim, who was the applicant's wife, was thirty-three years old. The applicant had earlier been convicted of having assaulted her. There are no other matters relating to her vulnerability.
[14]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))
The victim and the applicant are the same age. At the time of the offence, they were married to each other.
[15]
Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))
In respect of the disqualifying offence, both the applicant and the victim were adults.
[16]
The person's present age (s30(1)(g))
The applicant is 53 years of age.
[17]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))
In 1997, the applicant was convicted of common assault and in 1999, he was convicted of the disqualifying offence of indecent assault.
In 1995, the applicant was convicted of drink driving, resisting arrest and being drunk in public.
[18]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))
Whilst we accept that the disqualifying offence of indecent assault occurred twenty years ago, and the applicant has had no further convictions since this time, we have concerns about the strange behaviour the applicant is reported to have displayed both in 2007 when he attended a school to give a present to a girl he believed to be attending school there and in 2015 when he sent to a sales assistant from whom he had purchased jewellery correspondence stating that the body of his ex-wife had been found in the boot of her car.
On the evidence before us, we accept that the applicant attended a school where he made enquiries about a young girl. On the evidence before us, we also accept that the applicant wrote to a sales assistant telling her that his wife's body had been found in the boot of her car. We have also considered the applicant's submission that his then wife had been raped by corrupt members of the NSW Police Force and his conclusion that 'this means that every word on every page of the file supplied by the Crown Solicitor's Office about me is false.'
As set out above, these events give us concern about the applicant's current mental health and about the likelihood of the repetition of such inappropriate behaviour, and the possibility that it may be directed towards children.
A risk assessment report by a psychiatrist or a psychologist would have been able to address these concerns. Following the adjournment of the case to enable the applicant to obtain such a report, on the subsequent hearing date the applicant advised the Tribunal that he had decided not to have such a report prepared as he didn't need it.
Without such expert evidence, our concerns in relation to the likelihood of inappropriate behaviour by the applicant remain.
The only information the applicant has provided is a statement as to his interaction with children and a submission that he has never had any problems in relation to his contact with children. This submission has not allayed our concerns as to the applicant's current state of mental health and its potential relevance to any risk he may pose to children.
Under section 7 of the Act, in the case of an application for an enabling order, we are to presume that, unless the applicant proves to the contrary, he does pose a risk to the safety of children.
In the absence of evidence supportive of his application - particularly in the absence of a risk assessment report prepared for the application by a psychologist or psychiatrist - we are unable to be satisfied that the applicant has proved that he does not pose a risk to the safety of children.
[19]
Any information given by the applicant in, or in relation to, the application (s30(1)(j))
The applicant has provided submissions stating that he did not attempt to approach the young girl at the school but did have a gift for her. He stated that he left his contact details for the parents, and not for the girl herself.
He submitted that he had been 'caught off guard by such a large file as never seen before.' On the evidence before us, we are satisfied that prior to the first hearing in this matter, the applicant was provided with all material before this Tribunal, and that on the first hearing date, namely 16 June 2017, the material was tendered. The applicant told the Tribunal that he had received a large bundle of documents from the Crown Solicitor's Office and that he had been given sufficient time to read and consider the documents.
[20]
Any other matters that the Children's Guardian considers necessary (s30(1)(k))
The Children's Guardian has not identified any additional matters to be considered by the Tribunal.
[21]
Section 30(1A) considerations
Section 30 (1A) of the Act provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the 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 child-related work, and
2. it is in the public interest to make such an order
As the Tribunal has not determined that an enabling order be given to the applicant, the additional section 30 (1A) considerations are not relevant to this decision.
[22]
Does the applicant require a Working With Children Check clearance to continue his supervised volunteer work at the charity organisation?
As set out above, regulation 20(1) (a) of the Child Protection (Working with Children) Regulation 2013 provides that a worker who provides administrative, clerical or maintenance services, or other ancillary services is exempt from requiring a Working With Children Check clearance, if the work does not ordinarily involve contact with children for extended periods. On the evidence before us, it would appear that the applicant provides maintenance services and that his work does not ordinarily involve contact with children for extended periods. It is the advice of Ms Giacomo, Counsel for the Children's Guardian, that the applicant would not require a Working With Children Check clearance to perform such maintenance services as a glass fitter.
If the applicant were to have a report prepared by a psychiatrist or a psychologist to address any risk posed by him to the safety of children, the Children's Guardian may consider allowing the applicant to make an early application for a Working With Children Check clearance in accordance with s13A of the Act.
[23]
Conclusion
Pursuant to s28(7) of the Child Protection (Working with Children) Act, the applicant is presumed to be a risk to the safety of children unless he proves to the contrary.
The applicant bears the onus of discharging the presumption that he is a risk to the safety of children. Until such a time as the presumption is discharged, the applicant is deemed under the Act to be a risk to the safety of children.
For the reasons set out above, we cannot be satisfied that the applicant has proven that he does not pose a risk to the safety of children. Accordingly, the applicant has failed to discharge the onus that he is a risk to the safety of children. On this basis, we are to presume that the applicant does pose a risk to the safety of children.
[24]
Orders
The orders of the Tribunal are as follows:
1. The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) filed on 10 February 2017 is refused and dismissed.
2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
[25]
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: 01 December 2017