DES v Children's Guardian

Jurisdiction and role of Tribunal

1. There is no dispute that the Tribunal has jurisdiction to review the decision of the Children's Guardian that is the subject of this application. The role of the Tribunal in reviewing that decision is to determine the correct and preferable decision having regard to the material before it and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). The orders the Tribunal can make on an application for review include an order to affirm the decision of the Children's Guardian, or an order to setting aside the decision of the Children's Guardian and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3)].

Applicable Law and Legal Principles

1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances: s 3 of the Act.
2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse: s 4 of the Act.
3. The Children's Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act.
4. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the Act.
5. In this administrative review, neither party bears the onus of proof. There is no presumption that DES poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357 (FCR): There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.
6. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove".
7. An application under s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.
8. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101.
9. The issue for this Tribunal as required by s 18(2) of the Act is whether DES, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is: "...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word "risk" with the words that follow, namely, to the safety of children".
10. The Tribunal may not make an order on conditions, whether under ss 27 or 28 of the Act: BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164
11. In determining this application, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is considering making an order enabling an Applicant to work with children, the Tribunal must then consider the two-part test set out in s 30(1A) of the Act.

Evidence before the Tribunal

1. The applicant filed a bundle of documents including applicant letters to the Crown Solicitor, two Statutory Declarations from applicant, statement dated 4 June 2018 from the applicant's partner (who will be referred to as 'AB'), report from clinical psychologist Ms. Matilda Mandic dated 20 March 2018, personal reference, and several education and medical reports regarding his partners' 13 year old grandchild. The applicant also filed written submissions.
2. The Children's Guardian, filed a bundle of documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW). The documents including the Queensland DPP brief of evidence regarding the 2003 criminal prosecution, transcripts of the proceedings, FACS reports and file notes and the Children's Guardian risk assessment. Counsel for the Children's Guardian also filed written submissions.
3. The applicant, AB and Ms. Mandic all gave oral evidence and were cross-examined.

The Trigger Offence

1. The applicant was charged with the offence of rape under the Queensland Criminal Code. The alleged offence took place on 5 May 2003 and the victim was the then partner of the applicant. The relevant facts were set out in the Police brief and can be summarized: 1. On 5 May 2003, the complainant took a number of prescription painkillers and fell asleep beside the applicant. 2. At 9.30am on 5 May 2003, the complainant awoke to the applicant having sexual intercourse with her. She said "No" but he continued to have sexual intercourse with her. After he finished he got up and left the room. 3. On 5 May 2003, the complainant telephoned a neighbor and asked her to visit her home. She reported to the neighbor that she had been raped by the applicant. 4. On 5 May 2003, the complainant reported to police that she had been raped by the applicant. 5. On 5 May 2003, the applicant sent the complainant a text message in which he acknowledged that he had "unconsented [sic] intercourse" with the complainant because he failed to make sure she was "fully awake". 6. On 6 May 2003, the applicant was interviewed by police at which time he: 1. Admitted to having sexual intercourse with the complainant but was of the belief that it was consensual. 2. He knew the complainant was drowsy but stated that he had asked if it was okay if he entered her and that he wanted to sleep with his erect penis inside her vagina. 3. He could not recall whether he thrust in and out of her vagina or whether he ejaculated as he went to sleep immediately upon entering her.
2. The trial commenced in November 2003. The complainant gave evidence and was cross-examined.
3. On 2 April 2004, a No True Bill was entered in relation to the rape charge. The prosecution was discontinued as the Crown Prosecutor determined there was no reasonable prospects of securing a conviction. The difficulties in the Crown case arose from being unable to refute, beyond a reasonable doubt, that the applicant was under a mistaken and honest belief that the complainant consented to the sexual activity.
4. The evidence is now considered under each of the subheadings of ss 15(4) and 30(1) of the Act.

Seriousness of any matters that caused the assessment in relation to the person

1. The applicant was charged with the offence of rape under the Queensland Criminal Code. The current maximum penalty for this offence is life imprisonment. It is a very serious offence.
2. The charge was also serious because the complainant alleged she had taken prescription pain killers at the time and told him, "No" when she awoke with the applicant on top of her having sexual intercourse with her. She complained to a neighbour after the incident and reported the offence to police on the same day.
3. The applicant denied the offence and believed the complainant was consenting to sexual intercourse. He believed she was not telling the truth and she perjured herself in Court. The applicant submitted that this view was supported by the DPP's decision not to proceed with the charges.
4. The applicant was cross examined by Counsel for the Children's Guardian about this matter. He was asked to explain his version of how the incident took place. He stated that he agreed the complainant had taken tablets but he did not believe she was asleep. He stated that the complainant knew she was having sex. He stated the complainant did not say "No" but she may have said, "I'm not ready". He did not believe this meant she was not consenting. He believed she was.
5. Counsel asked the applicant questions about a mobile text he sent to the complainant after the alleged offence and on the same day. The applicant acknowledged having "unconsented intercourse" with her in the text message. The applicant agreed that he sent the text and the purpose of sending the text was to agree to disagree with the complainant and to stop the argument. The text was not true and he did not think she would call the police.
6. The Tribunal finds there is insufficient evidence to make a positive finding that on the balance of probabilities the applicant committed the offence of rape in 2003. However, the Tribunal was not convinced that the offence did not occur and retains a 'lingering doubt or suspicion' that the offence did occur. The complainant was the applicant's partner at the time of the offence. She complained to a neighbor and to police very soon after the alleged offence occurred and on the same day. She provided a 32 page statement to police. The applicant agreed that on the day of the offence he sent a text to the complainant acknowledging he had "unconsented intercourse" with her. In evidence to the Tribunal he said the text was untrue but he sent it as "he just wanted to end the argument". This was a text that was unsolicited and made without the filter that can occur when there is knowledge of a possible police report. The Tribunal finds the applicant's explanation unlikely, self-serving and gives rise to a suspicion that the applicant committed the offence.
7. The suspicion is also based on the applicant's evidence to the Tribunal that he agreed the complainant had taken medication and may have said to him at the time of the sexual contact, "I'm not ready".

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

1. The alleged offence occurred more than 15 years ago.

The age of the person at the time the offences or matters occurred

1. The applicant was 46 years old.

The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

1. The complainant was 46 years old. At the time of the alleged offence she had taken prescribed pain killers that made her feel drowsy. She was therefore vulnerable, being drowsy and unwell.

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

1. The applicant and the complainant were in a relationship at the time and they were approximately the same age.

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

1. The applicant and the complainant were adults.

The person's present age

1. The present age of applicant is 61 years old.

The seriousness of the person's total criminal record and the conduct of the person since the matters occurred.

1. The applicant was charged with a breach of bail that occurred in May 2003 The breach of bail occurred when he contacted the complainant after he had been charged. He was remanded in custody for 6 months for this offence and received a fine. He has no other relevant criminal record.

FACS investigation in February 2017

1. The applicant came to the attention of FACS in relation to the grandchild of his partner, AB. This child will be referred to as 'CD' in these reasons. CD was born on the 19 November 2004. AB has been the authorised foster carer of CD under the supervision of FACS. In May 2016, the applicant moved in to live with AB and CD. In November 2016, the applicant applied to the Children's Guardian for a Clearance. On 19 December 2016, the FACS caseworker received an intestate child protection history. It contained an unsubstantiated report that the applicant had sexually abused his 13 year old daughter in 1999. The FACS caseworker advised the applicant and AB that the applicant was not to be left alone with CD or to provide any care for him.
2. On 3 February 2017, CD disclosed to a school teacher and FACS caseworkers that the applicant had hit him on multiple occasions and "gets in his face" and he feels scared of the applicant. CD described feeling sad at these times and wanted to live with his mother.
3. On 3 February 2017, AB confirmed that the applicant was providing some care and discipline to CD. He had smacked CD and held his wrists "when [CD] was going off". She agreed with the caseworker that the applicant was not to discipline CD.
4. On 15 February 2017, FACS caseworkers interviewed the applicant. He agreed with the caseworkers that he had smacked CD, that he had raised his voice with CD and he had got up close to CD when he did this. He told the caseworkers that he was preparing CD for high school. He knew what it would be like for CD at high school, "he will get bashed".
5. During the interview on the 15 February 2017, the applicant confirmed that since CD made the report, he had stopped giving CD hugs and kisses at night and he had stopped speaking to CD. He had chosen to do this because he "has to protect himself against any potential allegations [CD] could make." He was asked by the caseworkers how he thought CD may feel in response to the applicant living with him but not speaking to him. The applicant stated that he did not care as this is what FACS had forced him to do.
6. Following the meeting on the 15 February 2017, a risk assessment was conducted by FACS and it concluded that the applicant was not an authorised adult household member in the home of CD. It recorded the applicant as a PACR (Person Associated Causing Risk) with FACS. A decision was then made to delay a determination as to whether the applicant could remain in the home until after the Clearance application to the Children's Guardian had been decided. Following the refusal by the Children's Guardian on 30 October 2017, the applicant was required to leave the home of CD.
7. Counsel for the Children's Guardian cross-examined the applicant about his conduct towards CD. He agreed that CD had a diagnosis of autism and had a number of emotional and behavioural difficulties. He agreed that he had smacked CD, raised his voice and got into his face. He told the Tribunal that he "yelled and screamed at [CD] in his face to prepare him for high school". He was asked by Counsel whether he had considered how this may have impacted on CD. The applicant responded that "[CD] does not care and does not remember". He also stated that he did not believe his treatment of CD was inappropriate given the way CD had treated other people. That is, CD had been yelling and screaming at other people and could be a bully.
8. The applicant agreed that prior to CD making a report to his teacher in February 2017, that he and CD had formed a close relationship and that he believed he was the child's only stable male role model at that time. He also agreed that he had stopped communicating with CD and giving him any affection after the report was made. He also agreed that at no time did FACS advise him that he should stop talking to CD but stated, "I was in an untenable position".
9. Counsel for the Children's Guardian cross-examined the applicant's partner, AB. She agreed that the applicant had on occasions physically smacked CD. She had also smacked CD because of his difficult behaviours. She also agreed that the applicant had stopped communicating with CD and this had upset CD. AB believed CD found the situation difficult to understand.
10. The Tribunal finds that the applicant physically assaulted the child, CD. This is based on the applicant's evidence that he physically smacked CD and that he screamed at CD while up close to his face. In evidence, he agreed with the description given by CD to caseworkers that the applicant was, "getting into my face". The applicant justified his actions by saying the child did not care and, in any event, he was preparing the child for high school where he was likely to be 'bashed'. The Tribunal does not accept the applicant's justification or explanation for his conduct towards CD. His actions were inappropriate and harmful. His actions were made worse by the uncontested diagnosis that CD has autism and emotional difficulties that should have attracted special care and understanding.
11. The Tribunal also noted the applicant's evidence that he stopped all communication with CD after CD made a report about the applicant to his teacher and to FACS in February 2017. This is despite the applicant having a close relationship with CD prior to the report. The Tribunal finds the applicant's refusal to communicate with CD whilst they were living in the same household was likely to have caused harm to CD. In evidence, AB confirmed that CD was upset by the situation. The Tribunal does not accept the applicant's explanation that he was protecting himself from potential allegations. The more likely explanation was that the applicant was being vindictive and seeking to punish CD for making the report. The Tribunal finds his actions to be cruel, callous and showed a lack of insight into the potential impact of such conduct on a child.

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

1. The trigger incident did not involve a child. However, the impact on a child of any repetition of the same type of conduct that the applicant perpetrated on CD as outlined above, would be traumatic for a child and could have lasting adverse psychological and emotional effects on the child.
2. The applicant relied on a report dated 20 March 2018 from clinical psychologist, Ms Matilda Mandic. She also gave oral evidence and was cross-examined.
3. Ms Mandic told the Tribunal that she had recently agreed to see the applicant to provide an independent risk assessment regarding his application for a Clearance. She knew of the applicant as she had been the treating psychologist for the applicant's partner, AB, and the child, CD, for about 18 months. They had both been referred to her by FACS for behavioural support.
4. She had three sessions with the applicant and prepared her report. In her report, she wrote that [CD] had often spoken of his "Nanny's partner", [the applicant], indicating a high regard for him and despite not always agreeing with strong boundaries being set, he does respect them. She also wrote that the applicant provided an honest recount of the unsubstantiated allegations of sexual abuse against his daughter (1999) and the alleged rape of partner (2003) and she was satisfied that it correlated well with existing records. She prepared the assessment by taking a history from the applicant and conducting a personality test and a self-esteem test.
5. By way of opinion she wrote, "[the applicant] presents a stable personality that was measured across a number of questionnaires discussed earlier and is more demonstrative of an individual who is law abiding, trustworthy and full of integrity…It is likely that the [applicant] does not present with any risk of repeating alleged offences and in particular there is an unlikelihood of offences involving children".
6. Counsel for the Children's Guardian cross-examined Ms Mandic. In evidence, Ms Mandic agreed she did not use any actuarial risk assessment tools in making her assessment. She also agreed that she did not read, and was not provided with, the section 58 documents including the documentation from FACS regarding their investigation into the applicant's conduct towards CD and their findings that the applicant was a PACR (Person Associated Causing Risk). She agreed this information would have assisted her in the assessment.
7. Counsel asked questions of Ms Mandic about her possible conflict of interest in providing an assessment for the applicant and at the same time having treated both AB and CD for over 18 months. Ms Mandic denied any conflict of interest. She was asked by Counsel whether her therapeutic work with CD could have influenced her view as to whether the applicant was a risk to children. Ms Mandic disputed the suggestion and was adamant that her views about the applicant were independent and impartial.
8. The Tribunal finds that Ms Mandic's assessment of the applicant is not reliable and nor is it independent and, therefore, carries very little weight. Ms Mandic had a clear conflict of interest in treating AB and CD and, at the same time, providing a risk assessment for the applicant. That is, her ability to provide an objective and impartial assessment would always be compromised by her knowledge and bias and pre-conceived views gathered from the 18 months of previously treating AB and CD. In her evidence, Ms Mandic clearly had a flawed understanding of a conflict of interest and the methodology required in producing an independent and impartial assessment. This methodology should also include obtaining and considering relevant documentation as part of the assessment. Ms Mandic did not do this and instead appeared to have relied on the history provided by the applicant.
9. Counsel for the Children's Guardian asked the applicant whether he had completed any training or courses in child development or parenting course and, if not, whether he intended to in the future. He responded that he had not and did not intend to in the future. He stated he did not come into contact with children. He also stated that he had not caused any psychological harm to CD. The Tribunal interpreted his responses to indicate that he believes that he has no need to undergo any such training or courses in child development or parenting.
10. The applicant's responses in cross-examination demonstrate he had no understanding or insight into the impact of physical discipline on CD and his abrupt refusal to communicate with CD after previously having a close relationship with him. The Tribunal finds there is a likelihood that he would repeat the same conduct if placed in the same situation with a child in the future.

Any information given in, or in relation to, the application.

1. The applicant provided a reference from Mr Edwards dated 17 February 2018. It was a pro-forma reference and contained minimal information. Mr Edwards appeared to be a previous manager and stated that [the applicant] completed his tasks and was happy to do so. It was not clear if the writer of the reference was aware of the applicant's history and the allegations relied on by the Children's Guardian in deciding to refuse his Clearance. The reference does not assist the Tribunal and no weight has been given to it.
2. The applicant provided a bundle of medical reports, educational reports and vacation care reports regarding the child, CD, dating from 2008 to the present time.
3. AB provided a handwritten statement dated 4 June 2018. She wrote that she fully trusted the applicant with her safety and had no fears about any intimidation or violence. She was also aware of the "alleged incidents in his past". She referred to the applicant's discipline of her grandchild, CD and did not regard it as excessive. She described CD as a very challenging child. He was autistic, has ADHD and could be violent and aggressive and his moods were erratic. She concluded her statement, "[CD] has expressive and receptive language delay as well. It does take him a lot longer to process stuff. He is not a normal 13½ boy".

Any relevant information in relation to the person that was obtained under section 36A

1. There is no such information.

Any other matters that the Children's Guardian considers necessary.

1. The Children's Guardian referred to an allegation made against the applicant that he sexually abused his 13 year old daughter in 1999. The applicant denied the allegation. The applicant provided a statutory declaration from his daughter dated 29 May 2018. She denied her father sexually abused her. In her view the allegation was "wrongfully and maliciously made". The applicant also provided a statutory declaration from his ex-wife and mother of his daughter dated 30 May 2018. She also stated the allegation was untrue. The allegation was not substantiated by the Queensland child protection authorities and no action was taken. There is no other evidence to substantiate this allegation. The Tribunal makes no finding about this matter and gives it no weight in consideration of the application.

Conclusion

1. The Tribunal finds the applicant poses a real and appreciable risk to the safety of children. It has considered the following matters to reach its decision: 1. The Tribunal's finding that there is a lingering doubt or suspicion that the applicant committed the offence of rape in 2003; 2. The Tribunal's finding that in 2016 and 2017 the applicant physically disciplined the child, CD. This included smacking the child and purposely yelling at the child, close to the child's face. Such action was likely to cause the child physical and psychological harm; 3. The Tribunal's finding that the applicant's actions of purposely and abruptly ceasing all communication with the child, CD, after February 2017 while the applicant was living in the same household as CD was likely to have caused the child psychological harm; 4. The Tribunal's finding that the applicant would be likely to repeat the same type of actions perpetrated on CD if placed in the same situation in the future; and 5. The evidence of the applicant to the Tribunal that demonstrated he had no insight, understanding or regard as to whether his own conduct towards CD may have caused the child harm. He also demonstrated no insight or understanding into the vulnerability of children, particularly a child who had been diagnosed with autism and experienced emotional difficulties and cognition delays.
2. The Tribunal finds, therefore, that the correct and preferable decision is to affirm the Children's Guardian decision to refuse the applicant a Clearance.
3. As the Tribunal is not considering making an order enabling the applicant to work with children, there is no need to address the requirements of s 30(1A) of the Act.

Order

1. The Children's Guardian decision to refuse the applicant a working with children check clearance is affirmed.

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: 28 August 2018