DAE v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-10-23|Before: Hodgson JA

Background

On 31 March 2017 the applicant, known as 'DAE' in these proceedings, filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") of the decision of the Children's Guardian, made on 3 March 2017 to refuse a Working with Children Check clearance. The respondent was satisfied, following a risk assessment, that the applicant poses a risk to children. That decision is the subject of this review.
On 6 July 2015 the applicant applied for a Working with Children Check clearance from the respondent, the Children's Guardian.
A risk assessment was undertaken pursuant to section 15(1) of the Act on the basis that DAE was subject to an assessment requirement referred to in section 14 triggered by clause 1 (1)(b) of Schedule 1 of the Act.
On 3 March 2017 a notification letter was sent to DAE by the Children's Guardian informing him that his application for a Working with Children Check clearance was refused and attaching Reasons for Decision.
The matters which triggered the risk assessment were two dismissed charges for 'Indecent Assault' related to incidents alleged to have occurred in 1990 and 1991 when the applicant was 35 years old and the complainant was 14 years old. The complainant reported the matters to the police in 1999 and the applicant was charged at that time. A local court magistrate dismissed the charges in 2000.
The applicant is applying for a Working with Children Check clearance because he wishes to resume volunteer work with a surf lifesaving organisation.
The role of the Tribunal in these proceedings is to decide what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. In undertaking that role 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.

Do the 2015 amendments to the Act apply?

In the Written Outlines of Submissions of both the applicant and the respondent it is assumed that s 30 (1A) of the Act applies to these proceedings.
The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a 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 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. The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The Applicant lodged his application for a Working with Children Check volunteer clearance on 6 July 2015 before the amendments commenced operation and as a result the amendments do not apply to these proceedings.

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Documents filed on 31 March 2017 including Application; Notice of Final Decision of Respondent; and Reasons for Decision of Respondent to refuse a Working with Children Check volunteer clearance - Exhibit A1; and 2. Bundle of Documents filed 4 July 2017 including Medical Report of Associate Professor Greenwood dated 16 May 2017; Affidavit of the Applicant dated 30 June 2017; and 10 other Affidavits - Exhibit A2.
The respondent relied upon the following documentary material: 1. Respondent's Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 28 April 2017 comprising 146 pages - Exhibit R1; 2. Further documents filed by the respondent on 9 October 2017 comprising 41 pages - Exhibit R2; and 3. Transcript of evidence of witness from local court proceedings filed 20 October 2017 comprising 7 pages - Exhibit R4
The applicant objected to the statement and an email of a Detective Sergeant from a Local Area Command included at Tabs 1 and 8 of Exhibit R2 respectively. After some discussion counsel for the respondent agreed that the paragraph commencing 'I believe the prosecution…' in the statement, and the first two paragraphs of the email should be excluded. After hearing argument we determined to admit the remainder of the two documents into evidence, noting that we would determine how much weight to give the material.
The applicant filed written submissions on 9 October 2017 (for convenience referred to as Exhibit A3).
The respondent filed written submissions on 9 October 2017 (for convenience referred to as Exhibit R3).

Legislative Provisions relevant to the decision

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.
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.
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.
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
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.
The applicant was the subject of a risk assessment triggered by clause 1 (1) (b) of Schedule 1 to the Act because of offences which allegedly took place in 1990 and 1991 in relation to which he was charged in 1999 and acquitted in 2000.
The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.
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.
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.
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.
If the applicant is granted a clearance he may volunteer with any children of any age. No conditions may be imposed upon the grant of a clearance.
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

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. The evidence is considered below under subheadings which refer to the considerations under section 30(1) of the Act.

(a) The seriousness of the offences that caused a refusal of a clearance

In the Reasons for Decision and written submissions the respondent asserts that the matters causing the assessment are serious because they relate to the alleged indecent assault of a child on more than one occasion when the applicant was in a position of authority. The respondent asserts that the incidents were particularly concerning because they took place when the child complainant was alone with the applicant, and on one occasion when they were at sea in a boat. The respondent also asserts that the threats allegedly made by the applicant to the complainant about the consequences if he disclosed what he stated happened to anyone caused him to feel "terrified".
The details of the alleged offences are as follow. In 1999 the complainant stated that he was indecently assaulted by the applicant on two occasions when he was a new member of a surf club where the applicant was a team captain. He asserted that in January 1990 at a surf clubhouse he was embraced around his body by the applicant from behind. The applicant then moved his hands down and grabbed him on the penis and testicles.
The complainant stated that on a second occasion in March 1990 the complainant stated that he was in a 'rubber ducky', also known as an Inflatable Rescue Boat ('IRB') alone on the water with the applicant who stopped the IRB and invited the complainant to drive it. The complainant alleged that the applicant then slid his hands up his thighs and grabbed his penis and testicles with both hands. When the complainant moved away and asked to go back to shore it is alleged that the applicant threatened him as a result of which he felt "overpowered" and "terrified".
The complainant allegedly disclosed the incidents to his mother shortly after they occurred, however he did not report the events to the police until nine years later.
In 1999 the applicant was charged. The matters were dismissed at the Local Court in 2000 when the magistrate concluded that there were flaws in both the prosecution and defence cases as a result of which he was not satisfied beyond reasonable doubt of the guilt of DAE.

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

The trigger events occurred in 1990 and 1991, which is approximately 27 years ago.
Since that time the applicant has not incurred any further criminal convictions or charges. He has not been the subject of any complaint and has not come to the attention of the police for any matters, sexual or otherwise.
The applicant has been in a stable same-sex relationship for approximately 20 years and has been closely involved in the care of his partner's nephew on an informal basis since the child was 4 or 5 years old. The applicant is not known to the NSW Department of Family and Community Services. The partner's nephew is now a young adult and still resides with the applicant and his partner.
The applicant has been involved in surf life saving in various positions since 1971. Counsel for the applicant, Mr Simpson, submitted that the concern of the respondent that it could not be satisfied that there were not any subsequent complaints to the surf club because of inadequate record keeping has been addressed by the production of a number of affidavits of people associated with the club. He asserted that these individuals, all of whom provided positive references and who are not necessarily friends of the applicant, would have known if there were any further allegations or rumours about the applicant.

The applicant was born in July 1955 and it is alleged that the incidents took place between the second half of 1990 and early 1991. The applicant was therefore 35 years old at the time of the alleged offences.

(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 complainant was born in May 1976. He was therefore 14 years old at the time of the alleged offences.
The respondent asserts that the complainant was vulnerable at the time of the alleged offences as a result of the difference in age between him and the applicant and the power imbalance because the applicant was in a position of authority. The respondent asserts that the complainant was particularly vulnerable because of the circumstances in which the offences were said to have occurred and the threats which were allegedly made.
Counsel for the applicant acknowledged that the complainant was in a position of some vulnerability, but denies it was extreme. He noted that the complainant was engaged in a volunteer activity from which he was free to leave at any time and in relation to which the applicant had no legal authority or coercive powers. The applicant also notes that the alleged offences occurred in public places where the complainant could have sought assistance.

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

The applicant is approximately 21 years older than the complainant. The applicant was a team captain at a surf club and the complainant was a new junior member of the club.

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

It is not clear whether the applicant knew or could have known that the complainant was a child because his evidence is that he had no recollection of the alleged victim at the time the charges were laid.

(g) The person's present age

The applicant is now 62 years old.

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

The applicant does not have a criminal record and the respondent acknowledges that the applicant's total criminal record is not a relevant risk factor.

(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 asserts that there is a complete absence of any evidence suggesting any repetition of the alleged behaviour in the 27 years since it allegedly took place. Mr Simpson referred us to the matter of BQD v Children's Guardian and the Department of Family and Community Services [2015] NSWCATAD 88 at [53] in which this Tribunal noted that statistical evidence indicates that the likelihood of an individual offending decreases with age after early adulthood. Mr Simpson noted that the applicant is now 62 years old.
We were also referred by the applicant to the report of Associate Professor Greenwood, a psychiatrist who interviewed the applicant on 16 May 2017 and who opines that the applicant's mental state, openness, credibility and stability does not raise any concerns about him being a risk to children.
The applicant submitted that the respondent had initially conducted a favourable risk assessment in relation to the applicant but later changed their view primarily on the basis that there were allegations or rumours which were circulating at the time of the trial about the applicant.
It is reported that during the police investigation in 1999/2000 a statement was made by a person who was then 15 years old that the applicant had taken him out in an IRB and asked him to perform oral sex on him. The 15 year old told the police that he declined and that the applicant did not actually touch him, but reported that the applicant was 'known' for making sexual references and behaving in such a manner.
The respondent asserts that it is of concern that there appear to have been other allegations of a similar nature about the applicant's behaviour, but that there is no further information available. The respondent acknowledges that in the intervening 27 years since the alleged trigger offences occurred the applicant has not been charged or convicted of any offences or been the subject of any complaint to the police or the Department of Family and Community Services.
The respondent also acknowledges that although the applicant has been involved at the surf club since that time, there is no evidence of any further concerns in relation to his involvement and that this reduces the likelihood of repetition of the alleged behaviour.
The respondent asserts that because of the inadequate record keeping by the surf club it cannot be known with certainty whether there were any other matters or not. The respondent submits that reduced weighting should be given to the reference provided by a longstanding club president because his statement that he had never heard anything adverse about the applicant is not plausible given the rumours which appeared to have been general knowledge at the time of the local court proceedings.
To attempt to address the uncertainty raised by the absence of records, the applicant filed affidavits from a number of people who we were told are not necessarily his friends or character referees, but who are senior or longstanding members and officeholders of the surf club. These affidavits all attest to there being no reported incidents at the club. In particular, Mr Simpson submitted that the evidence provided by the current club president should be given weight because of the considerable lengths the witness went to before informing the respondent that no other complaints against the applicant have been received by the club.
The respondent asserts that the complainant eventually reported the incidents to police nine years after they took place because of his concerns for other young life savers in the area and that, if the alleged behaviour was to be repeated, the impact on children would be serious and may place children at risk of physical, sexual, emotional and/or psychological harm.
In response to a question from the Tribunal, the applicant stated that he believed the complainant went to the police nine years after the alleged event because at that time there was an anti-gay sentiment directed at him within the surf club.

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

The applicant provided an affidavit dated 30 June 2017 in which he sets out his extensive voluntary work with a number of organisations and his version of the events that led to the charges being made against him in 2000. The applicant states that the alleged incidents originated from the 'discriminating and aggressive behaviour by a few homophobic members' of the surf club.
In addition to the affidavits referred to in paragraph 54 above, the applicant also filed an affidavit from the nephew of his partner who, as noted above, was effectively raised by the applicant and his partner and who is now an adult.

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

The Children's Guardian did not make any additional submissions addressing any other matters.

Consideration

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.
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, if relevant. 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.

Can any positive findings be made as to any alleged act of wrongdoing on the balance of probabilities or do we have no hesitation in rejecting the allegations as groundless?

If it occurred, the conduct that triggered this assessment was serious. However the local court magistrate found errors in both the prosecution and defence cases as a result of which he was not satisfied beyond reasonable doubt that the offences took place and the charges were dismissed.
The applicant has always maintained that the alleged incidents did not take place. He was cross-examined briefly during the hearing and answered the questions put to him openly and directly. He sought to address the 'flaws' in his case as stated by the magistrate who dismissed the case in 2000 and the explanations provided by him were plausible.
Counsel for the applicant, Mr Simpson, submitted that in considering the circumstances surrounding the alleged incidents we should note that the local court acquitted the applicant after a contested hearing over four days; that the magistrate did not accept the evidence of the complainant or of the club president at the time of the incidents; and that the 'flaws' in the applicant's case (the defendant in the local court proceedings) noted by the magistrate could be readily explained by the applicant.
Mr Simpson also submitted that it is implausible that the alleged offences took place because of the public nature of the places in which they were said to occur. It is not possible for us to make any determination about this issue given that we are not familiar with the locations and there was no evidence to support or refute the supposition.
Mr Simpson submitted that, even if we are not affirmatively satisfied that the alleged events did not occur, other matters should be weighed in favour of the applicant.
We were urged by Mr Simpson to place weight on the discrepancy in the evidence of the complainant at the local court trial when he asserted that he did not return to the club after the alleged incidents but club records showed this to be incorrect, at least on one occasion. We are unable to make any determination about this issue given that the complainant was not called as a witness.
Mr Simpson submitted that the magistrate in the local court proceedings did not accept the evidence of either the complainant or the club president who alleged that he had arranged for the club's solicitor to write a letter of warning to the applicant, which was then discussed at a board meeting of the surf club. Mr Simpson submitted that no evidence was provided at the trial to corroborate this and that the magistrate referred to certain aspects of the club president's evidence as "extraordinary". He submitted that it is implausible that no board members would recall such a discussion at a board meeting and that the evidence of the club president further supports the applicant's evidence that there was a homophobic and malicious faction within the club at the time.
Ms Hartstein, for the respondent, submitted that Mr Simpson's interpretation of the magistrate's view of the evidence of the complainant and club president is incorrect. She argued that the magistrate did not make any finding as to the credibility of either witness and did not find the evidence of the club president "extraordinary". She submitted that the magistrate found it extraordinary that no corroborative evidence was produced by the prosecution and that the magistrate was criticising the police, not the club president.
The magistrate used the word "extraordinary" in the following context: I would find it extraordinary if none of those committee members would remember the meeting or the letter. An allegation that a senior member of the club had sexually assaulted a junior member would be a matter that would in my opinion remain in the mind of the average member of a club's committee for the rest of that committee member's life.
He goes on to say: The fact that there is nothing to corroborate [the club president]'s evidence in circumstances in which it is disputed and in which there should be corroborative evidence does not assist the prosecution case.
We agree with the conclusion of the magistrate that it would be extraordinary if nobody on the committee remembered such an incident. However it is unclear whether or not the prosecution sought, but did not identify, any corroborative evidence, or whether they did not seek such evidence.
Mr Simpson asserted there is an unexplained delay in the complaint being made and that potentially it can be inferred that the complainant was motivated by homophobia or other malice towards the applicant. Mr Simpson noted that the local court magistrate concluded that the complainant's use of the term "fag" suggested that he may have been motivated by homophobic views.
Ms Hartstein submitted that the magistrate's view that the complainant may have been homophobic because, as a 14 year old boy, he used the term "fag" to describe the applicant is "extreme". She argued that it may not be uncommon for a 14 year old boy to use such a term and that it should not be extrapolated as meaning that the person is homophobic as a 23 year old.
We prefer the view of Ms Hartstein on this issue and agree that a statement of a boy at the age of 14 may not be indicative of his later view as a young adult. However this does not necessarily mean that the complainant did not hold derogatory views about homosexuals. We are not able to make a finding about this issue.
After considering the evidence available to us, we are not satisfied that the applicant committed the trigger offences with which he was charged in 1999. However we cannot completely reject the allegations as being groundless. There remains 'a lingering doubt' that something may have taken place which led to the allegations being made and it is now well established that where a 'lingering doubt or suspicion remains' that the acts did occur, this will count against the applicant. It is not, however, necessarily fatal to the applicant's efforts to obtain a clearance: see, for example, BSR v Children's Guardian [2015] NSWCATAD 264 at [41].

In light of an open finding, on all the information and other material before the Tribunal does the applicant pose a real and appreciable risk to children?

Even if a person is acquitted of a charge which resulted in the refusal of the clearance, it is now accepted that, as stated by Beech-Jones J in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33]: …. NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.
Given that we are unable to make a positive finding on the balance of probabilities as to whether or not the applicant committed the alleged indecent assaults in 1990 and 1991, we are required to then consider whether or not, on all the information and other material before the Tribunal, the applicant may still pose a real and appreciable risk to children: Office of the Children's Guardian c CFW [2016] NSWSC 1406 [23] to [24].
Counsel for the applicant submitted that the applicant's conduct has been exemplary since the alleged incidents occurred over 27 years ago and that greater weight should be placed on the absence of any evidence of any misconduct given that the applicant is a relatively high profile person in the community who did not withdraw from public life. Mr Simpson noted that given the applicant's high profile and the publicity surrounding the court proceedings, it is more likely that any other misconduct would have been reported.
It was agreed by the respondent that the applicant has had an exemplary record in the 27 years since the incidents are alleged to have taken place and we placed considerable weight on this. We agree with counsel for the applicant that if there had been other incidents of concern it is likely that at least some of those would have been brought to light given the publicity surrounding the trial in 2000 and the applicant's continued high profile within the local community.
We placed some weight on the fact that the applicant has been involved in the care of his partner's nephew for many years and that this person, who is now a young man, continues to reside with the couple and provided an affidavit in support of the applicant. It seems likely that, as a same sex couple involved in the care of a child, the applicant and his partner would have been subject to a level of scrutiny in the community given the alleged incidents and the court case. No evidence was presented of any issues of concern ever having been raised by any person.
We placed limited weight on the report of Associate Professor Greenwood and the affidavits of witnesses filed by the applicant in support of his application, given that none of these witnesses were subject to cross-examination.
In submissions Ms Hartstein confirmed that the respondent neither consents to nor opposes the application before the Tribunal.
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 us is that the applicant does not pose a real and appreciable risk to the safety of children and should receive a Working with Children Check clearance. Even if the alleged offences did take place given the applicant's unblemished record for the past 27 years we consider the likelihood of any repetition of the behaviour to be extremely low.

Orders

The orders of the Tribunal are that: 1. The decision of the Children's Guardian dated 3 March 2017 to refuse to grant the applicant a Working with Children Check volunteer clearance set aside; and 2. The application for a Working with Children Check clearance is granted.

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: 06 November 2017

At a glance

Court

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Source

Judgment (21 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)