DAK v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-09-20

Introduction

The Applicant "DAK" seeks an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 ("the Act"). DAK applied for a WWCC clearance because he and his wife want to become authorised carers for two of their grandchildren.
Pursuant to s 18 (1) of the Act, DAK is presumed to pose a risk to the safety of children. This is because DAK was convicted in 1985 of two charges on indecent assault pursuant to s 61 E(1) of the Crimes Act 1900 (NSW). For an enabling order to be granted by the Tribunal, DAK bears the onus of satisfying the Tribunal that on the balance of probabilities, he does not pose a risk to the safety of children: the Act, s 28(7).
Having regard to all the circumstances and the evidence presented, the Tribunal is satisfied that DAK poses a real and appreciable risk to the safety of children. The correct and preferable decision is to dismiss DAK's application for an enabling order: s. 63 Administrative Decisions Review Act 1997 (NSW).
The Tribunal was provided with the following material: 1. Application received on 3 April 2017. 2. Affidavit of DAK made on 14 July 2017. 3. Affidavit of YT (DAK's wife) made on 14 July 2017. 4. Bundle of documents received by the Tribunal from the Applicant on 18 July 2017 containing references in support of DAK's application. 5. Document from DAK replying to the Respondent received by the Tribunal on 4 August 2017. 6. Bundle of documents received by the Tribunal from the Applicant on 12 September 2017 containing references in support of DAK's application. 7. Reference from ST, DAK's daughter (undated). 8. Section 58 documents filed by the Respondent received on 21 June 2017. 9. Further documents filed by the Respondent received 21 July 2017. 10. Submissions on behalf of the Respondent received 23 August 2017.
DAK was not legally represented and attended the hearing with his wife (ST). The Children's Guardian (the Respondent) opposes the application for an enabling order.

Factors the Tribunal must take into account

Section 30 (1) of the Act provides the factors that the Tribunal must consider in reviewing the Respondent's decision:

30 Determination of applications and other matters 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.

The seriousness of the offence

DAK was charged with indecently assaulting two women (the 1985 indecent assaults). The first assault occurred in the female toilets of a shopping centre at around 5:20 pm. The second assault occurred 6 days later at about 8:30 pm in the car park of the same shopping centre. Both assaults involved grabbing and touching these women in their crotch and bottom areas. The ages of the women are not known
DAK pleaded guilty to these charges and was fined and placed on a good behaviour bond for 3 years under the supervision of the Probation and Parole Service. When he was apprehended by Police and questioned about both incidents, he said he could not remember anything about them. The Police found a quantity of Indian Hemp in his possession and he was charged with possession of this substance, to which he also pleaded guilty and was fined.
Prior to this DAK admitted to an offence in 1984 (the 1984 assault), where he assaulted a woman aged 18 years of age at a train station at around 6:10 pm. The circumstances of this assault were that DAK followed her as she left the station, approached her and put his hand on her leg and under her skirt and squeezed her bottom and said "you're beautiful". For this offence he also received a fine. DAK said he had consumed about 8 schooners of beer prior to committing this offence.
The 1985 indecent assaults and the 1984 assault were committed against women, who were alone and in a vulnerable position, and involved touching and grabbing at parts of their body. These are serious matters involving violence against women.

Period of time since the assaults occurred and DAK's conduct since then

DAK told the Tribunal he still has no memory of the 1985 indecent assaults but said after reading the material obtained by the Respondent about these assaults, he was "totally disgusted" and ashamed about his behaviour.
The Tribunal accepts DAK's expressions of remorse about these incidents and notes that the assaults against women occurred more than 31 years ago and there have been no further charges or complaints against DAK in relation to assaults or indecent assaults since then. The only other contact with the criminal justice system were relatively minor drug offences about 32 years ago.
DAK describes a history of alcohol consumption and smoking cannabis from an early age. He continues to drink alcohol but not as heavily as he has done in the past. DAK told the Tribunal he stopped smoking cannabis about 7 years ago because he couldn't afford it and it was not doing anything for him. DAK's wife told the Tribunal that DAK stopped smoking because she threatened to leave him if he did not stop smoking cannabis. The Tribunal is not in the position to determine from the evidence available to it the impact of DAK's use of cannabis or the difference it has made since he has stopped smoking.
DAK told the Tribunal that when he was smoking cannabis, he considered it was sufficiently protective of the children that he smoked in his bedroom with the door locked and window open because the children never went into his bedroom and the smoke was not staying in the atmosphere as the window was open. The Tribunal was concerned this suggested a lack of appreciation of the potential risks to the safety and well-being of children in the context of regular and potentially high levels of cannabis use.
The Tribunal was also concerned about contacts made by Family and Community Services (FACS), particularly in relation to an incident in 2007. This involved a man who had been found guilty of sex offences and had served 8 months in custody. DAK allowed this man to reside in his home when he was released from custody as part of his conditions of parole. He was given a bedroom next to the bedroom of DAK's 10 year old daughter. DAK said he could not see any danger in this situation. He did not know if this man was found guilty or had pleaded guilty to these sex offences, and did not provide any details about the circumstances of these offences, but said this man lived with them for about 6 months. He said a short time after he moved in, his daughter moved bedrooms and he always kept his door open, which he thought would be sufficient to ensure no harm would come to her.
DAK's wife told the Tribunal that she did not know that this man had been found guilty of sex offences until about 4 or 5 months after he moved in. She said if she had known, she would not have let him live in their house, particularly because of the risk to their 10 year old daughter. She said when she found out she "lost it" and was angry. She wanted him to leave immediately but DAK was concerned he would be in breach of his parole conditions and would be homeless.
The Tribunal was concerned about DAK's limited appreciation of the risks of this man living in the family home. When asked if he would invite him to live in their home now he replied "probably not". However in the course of giving evidence about this, he maintained that there were sufficient protections in place to guard against any risk to the children, and he believed that this man did not pose any risk to his daughter. The Tribunal concluded that DAK did not sufficiently appreciate the risks, particularly to his 10 year old daughter, of allowing this man to live in his home.

The age of the person at the time

DAK was 24 years old at the time of the 1985 indecent assaults.

Age of the victim at the time of the assault and any matters relative to the vulnerability of the victim

The victim of the 1984 assault was 18 years old. She was walking alone from the train station and in a vulnerable position. The ages of the victims of the 1985 indecent assaults are not known. But in both cases they were alone and vulnerable. .

Difference in age between DAK and the victims and their relationship

All three victims were unknown to DAK, who was 23 years old at the time of the 1984 assault.

Whether DAK knew the victims were children

DAK targeted these women at the time the assaults occurred and it is not known whether he was aware of their respective ages.

The Applicant's present age

DAK is now 56 years old.

Seriousness of DAK's total criminal record and conduct since the assault

DAK's criminal record dates back over 30 years. It involved violence against women, which is a serious matter but there have been no other complaints or charges in relation to this conduct since then.
DAK's criminal record also includes drug offences and was last charged over 30 years ago. However DAK admits he continued to smoke cannabis till about 6 or 7 years ago.

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

The age of victims of the 1985 indecent assaults is not known and the victim of the 1984 assault was 18 years old. If these assaults were to be perpetrated on a child, it would have a serious impact.
DAK told the Tribunal that the 1984 assault and the 1985 indecent assaults were "out of character". DAK's wife said she also considered it to be out of character for DAK.
DAK explained that this period in his life followed the end of his first marriage, which included his wife being unfaithful and leaving him. DAK moved out of Sydney and began a de facto relationship with a woman who was older and had 4 children. DAK was unhappy in this relationship and was left with debts from his first marriage, and he said he suffered an "emotional breakdown". He was drinking heavily and smoking cannabis. DAK cannot recall receiving any therapy or counselling but recalls reaching a "low level" in those days.
DAK's current wife said to the Tribunal that DAK "is just not that person anymore". The Tribunal accepts that the 1984 assault and the 1985 indecent assaults were committed at a time when DAK was experiencing emotional upheaval and drinking heavily and smoking cannabis.
DAK offered to the Tribunal that he would consent to drug testing if necessary to prove that he is no longer using cannabis. Whilst this suggests a willingness to verify his evidence, the Tribunal does not have any medical, psychological or other expert evidence in relation to DAK's drug and alcohol use. DAK and his wife told the Tribunal that they suspect that his significant lapses in memory are due to past cannabis use but this has never been formally assessed or tested. The Tribunal is not able to assess on the evidence available to it, the risk of relapse in DAK's drug and alcohol use, or the impact of any such relapse. Given the role alcohol and drug use played in the circumstances surrounding DAK's offending behaviour, the Tribunal considers these factors to be relevant in assessing whether DAK poses a risk to the safety of children.

Any information given by the Applicant

DAK married his current wife in 1997. They are first cousins. DAK has three adult step children, one adult biological child to his current wife and is grandfather to seven grandchildren. Up and till February 2017, he and his wife were caring for two of their grandchildren, a boy aged about 11 years and another boy about 15 months. DAK said he has been distressed that since FACs became aware of his historical charges, the care arrangements in relation to these two of the grandchildren have not proceeded. This is his motivation to obtain a WWCC clearance.
DAK has not worked since about 1994 and receives Disability Support Pension. He has provided a number of character references, which are positive and supportive. He also provides letters from his daughter, step daughter and step son, which are also supportive. These references together with the evidence of DAK and his wife provide support to DAK's application. The Tribunal accepts that DAK is genuinely wanting to support and care for his family and particularly his grandchildren, he has not satisfied the Tribunal that he does not pose a risk to the safety of children, especially from the point of view of protecting them from harm.

Conclusion and orders

The jurisdiction of the Tribunal in considering whether to grant an enabling order is protective of children and not punitive in nature (BHA v Children's Guardian [2014] NSWCATAD 161). The paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: the Act, s 4.
The Tribunal is troubled by DAK's limited insight into the risks of smoking cannabis while children are in his care, and even more so, in relation to permitting a man found guilty of sex offences to reside in his home and sleep in the room next to his 10 year old daughter. This demonstrates a lack of capacity to act in a manner that is protective of children. There is no evidence before the Tribunal of DAK's capacity to keep his use of alcohol and cannabis in check and given this was an accepted contributing factor to his offending behaviour, the Tribunal considers this to also contribute to potential risk to the safety of children.
The Tribunal is satisfied on the balance of probabilities that DAK poses a risk to the safety of children.
As the Tribunal has determined that DAK poses an unacceptable risk to the safety of children, it is not necessary to consider the reasonable person and public interest test in s 30(1A) of the Child Protection (Working with Children) Act.
The Tribunal orders that: 1. The application for an enabling order is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 07 June 2018

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