DJM v Children's Guardian

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Documents filed on 23 February 2018 including Application; Notice of Cancellation of Working with Children Check clearance pursuant to section 23; and Reasons for Cancellation Decision - Exhibit A1. 2. Statement of witnesses filed 20 September 2018 - Exhibit A2.
2. The applicant filed written submissions on 7 November 2018 (for convenience referred to as Exhibit A3).
3. The respondent relied upon the following documentary material: 1. Respondent's Tender Bundle first filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 13 April 2018 comprising 269 pages - Exhibit R1; 2. Further documents filed by the respondent on 8 May 2018 comprising 124 pages - Exhibit R2; 3. Additional further documents first filed by the respondent on 19 July 2018 - Exhibit R3; 4. Additional documents filed by the respondent on 19 October 2018 - Exhibit R5; and 5. Further additional documents files by the respondent on 19 October 2018 - Exhibit R6.
4. The respondent filed written submissions on 1 August 2018 (for convenience referred to as Exhibit R4) and on 7 November 2018 (for convenience referred to as Exhibit R7).

Legislative Provisions relevant to the decision

1. 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.
2. 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.
3. 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.
4. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
5. 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.
6. A risk assessment was undertaken by the Children's Guardian using the provisions of section 15(3) of the Act which does not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder.
7. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.
8. 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.
9. 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.
10. 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.
11. If the applicant's clearance is reinstated he may volunteer or work with any children of any age. No conditions may be imposed upon the grant of a clearance.
12. 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

1. 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.
2. Section 30 (1A) of the Act also applies. It provides that: 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.
3. The evidence is considered below under subheadings which refer to the considerations under section 30(1) and 30 (1A) of the Act.

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

1. In the Reasons for Decision and written submissions the respondent asserts that the matters causing the assessment are serious because they are sexual, child related, and occurred within the context of the applicant's child-related role.
2. The details of the alleged offences are as follows:
3. The applicant was employed as a support worker in a homelessness refuge for young people in regional New South Wales for approximately two years and five months between March 2014 and August 2016.
4. As noted above, the matter which led to the notification by the NSW Ombudsman and the risk assessment is an allegation by a 17 year old female complainant that when the applicant was employed as a support worker in a refuge for homeless young people he behaved inappropriately towards her in a sexual manner.
5. Specifically, the complainant alleged that the applicant invited her to sleep with him in the staff bed and when she declined unlocked her bedroom door, entered her bedroom and squeezed her breasts. He later allegedly tried to enter her bedroom a second time but was prevented from doing so because the complainant kept her finger on the lock. It is further alleged that the applicant made sexually explicit comments and advances to the complainant over a period of time including asking her to go to his home; showing her where he lived on 'Google Maps'; telling her how to enter his flat unobserved; asking her to keep the matter confidential; telling her he would make her sexually aroused; asking her to find him a girlfriend by accessing her FaceBook account on the computer at the refuge; and asking her to set him up with her cousin, who was a young child, despite being told of the cousin's age.
6. Investigations were held by the agency managing the refuge, the Joint Investigation Response Team (JIRT) and the Department of Family and Community Services (FACS). The agency investigation found that there was insufficient evidence to sustain the allegations and the JIRT investigation was closed due to the wishes of the complainant and the lack of evidence. The respondent submits that the FACS investigation substantiated the allegations based on the statement provided by the complainant and assessed the complainant as having suffered sexual harm as a result of the actions of the applicant.
7. The respondent submits that the applicant has a history of domestic violence offences involving women and children in his family, including a conviction of common assault against his sister in 2006. The respondent also refers to Apprehended Violence Orders in 2009 and 2010 listing the applicant's three children and former wife as persons in need of protection.
8. The respondent submits that three 'Risk of Harm' reports were made to FACS in 2008 and 2009 as a result of alleged domestic violence perpetrated by the applicant and two 'Risk of Serious Harm' reports were made in 2015. The first of these relates to the incident which led to these proceedings and the second to an allegation that the applicant hit his children with a belt. This allegation was not sustained. The respondent notes that a Family Law Court Order in place at the time states that the applicant 'must not physically discipline the children with any object' and asserts that this indicates that there had been a previous problem.
9. The complainant reported that she told another teenage resident of the refuge about the alleged sexual assault perpetrated by the applicant shortly after it took place.
10. On 20 September 2018 the applicant filed a statement made on 18 September 2018 (Exhibit A2) by the teenager who was a resident in the refuge at the time the allegations were made by the complainant. The teenage witness gave evidence by video link during the second hearing on 24 October 2018 at which time he was 17 years and 2 months of age. He was examined by Mr Indevar and confirmed the contents of his statement. He said that he was a resident of the refuge for approximately 4 months including in late 2015 when the alleged incident of sexual assault is said to have occurred. The witness told us that there were never more than four residents at one time and that he remembers the complainant. He denied being told about the alleged incident by the complainant and stated that he never saw any behaviour on the part of the applicant that was inappropriate. The witness stated that the applicant was always 'very professional'.
11. The witness was cross-examined by Ms Windsor. He stated that residents were generally required to be in their bedrooms by 8pm or 9pm and that it is unlikely that he would have been in the common areas at the time the complainant alleges she told him about the incident. The witness said that he was attending school during the day but that the incident may have occurred during the school holidays. The applicant was often working and the residents saw him frequently. Some residents were rude to the applicant because of his heavy accent and "language barrier". The witness stated that it is possible that he was still in the lounge room at 9pm.
12. Under re-examination the witness confirmed that the statement was 'all my own words' and in response to a question by one of the Tribunal Members confirmed that he had not had any contact with the applicant between the time of his residency at the refuge and being asked to be a witness in these proceedings.
13. On 20 September 2018 the applicant also filed a copy of the File Note Record of the officers from FACS who interviewed the complainant on 23 December 2015.
14. At the hearing on 24 October 2018 the police sergeant involved in the matter at the time gave evidence by telephone. He said that he spoke to the complainant on three or four occasions and explained the process she would need to follow if she wished to proceed with her complaint. He did not discuss the allegations with her or speak to any potential witnesses because she did not wish to make a formal statement.
15. The worker from FACS who interviewed the complainant gave evidence by video conference during the second hearing. She told us FACS did not speak to the teenage witness referred to by the complainant in her statement because they are not allowed to do so unless the police have interviewed the witness first.
16. The respondent accepts that the allegations of the complainant were upheld by FACS solely on the basis of the evidence of the complainant.
17. Counsel for the respondent submits that we should not accord much weight to the evidence of the teenage witness because of his uncertainty about the time residents are required to go to their bedrooms each night. Ms Windsor argues that the complainant reported the incident to a number of other people, all of whom gave sworn statements and were available for cross examination.

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

1. The trigger events occurred in November or December 2015, which is approximately 3 years ago. Following the allegations the applicant was suspended on full pay for seven months. He resigned on 31 August 2016.
2. 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.

(c) The age of the person at the time the offences or matters occurred

1. The applicant told us he is does not know his exact age or date of birth but thinks he was probably born in 1979. He was born in Sierra Leone and spent many years in refugee camps in Guinea following the outbreak of civil war in Sierra Leone in 1991. His family did not celebrate birthdays for religious reasons. He told us that he arrived in Australia in 2004 with his mother and three of his seven siblings at the age of 17 or 18, but that he may have been 25 years old. If the applicant was born in 1979, he is now approximately 39 years of age.
2. It is not disputed that he was an adult 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

1. The alleged victim of the trigger offence was a 17 year old homeless female.
2. The respondent submits that the alleged victim was vulnerable due to being a young person who was to some extent still dependent on responsible adults for advice, guidance and protection. As a support worker at the refuge where the applicant was staying, the respondent was in a position of trust and authority. The respondent argues that although the severity of any physical harm inflicted on the complainant is low, the incident is likely to have caused her psychological and emotional harm, particularly in the context of her presumed traumatic history (she was a 17 year old homeless female who was alienated from her family).
3. The applicant's sister was an adult at the time of the assault upon her in 2006 for which he was convicted.
4. The applicant's wife was an adult at the time of the alleged domestic violence offences. It is alleged that the first of these incidents occurred when his wife was in labour with their first child and very vulnerable.

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

1. If the applicant was born in 1979, he is approximately 19 years older than the complainant in relation to the trigger offence.

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

1. It is likely that the applicant knew the age of the complainant in relation to the trigger offence as a result of his role at the refuge. He would also have known the ages of the other alleged victims given that they were members of his family.

(g) The person's present age

1. If the applicant was born in 1979, he is now approximately 39 years of age.

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

1. The applicant's criminal record includes driving offences in 2008 and 2012.
2. The applicant was convicted of common assault in 2006 for striking his sister on her head with the back of his hand in a public park and was placed on a bond for 6 months under section 10 of the Crimes (Sentencing Procedure) Act 1999
3. There is no record of any other criminal conduct.

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

1. The respondent argues that the applicant has exhibited a consistent pattern of offending against vulnerable women and children since at least 2006 and that he has not admitted responsibility for his actions or shown any remorse. The respondent argues that if the applicant's actions were to continue it is likely that they would cause physical, emotional and psychological harm to children.

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

1. In oral evidence the applicant told us that he has worked in a number of roles caring for people and that this is his passion. He denied the trigger events that led to these proceedings. He stated that he was never told the exact date on which the offences are said to have occurred. Under cross-examination the applicant stated that he initially did not know the details of the allegations against him which is why he did not address them in detail in his first statement to the police. He stated that he is very aware of the impact of inappropriate sexual behaviour on a young person.
2. The applicant acknowledged under cross-examination that his initial statement that he had not had previous contact with police is not correct and that he had had prior involvement with the police in 2005 following receipt of a threatening telephone call.
3. The applicant told us that the assault conviction in relation to his sister arose because of her inappropriate sexual behaviour and his assumed role as head of the family and disciplinarian following the death of his father. He pleaded 'guilty' because he did not understand the difference between pleading guilty and not guilty because the 'terms were different'.
4. The respondent argues in final written submissions that it is unlikely that the applicant did not understand the difference between guilty and not guilty at the time he entered the plea given his previous 'navigation' of the policing system of Australia in relation to the threatening telephone call and his educational achievements.
5. In relation to the allegations of abuse of his children and domestic violence towards his former wife, the applicant stated that they never took place, are unproven and were false allegations made by his former wife in the context of the breakdown of their marriage.
6. The applicant submitted that police records show that the complainant has made other allegations of being the victim of sexual assault, including against a police officer and that the police took no further action in relation to these complaints. Mr Indevar submitted that this is relevant to our assessment of the veracity of the complainant.
7. The applicant has provided a number of character references. The respondent argues that these are mostly historic and therefore irrelevant, and that the recent references do not indicate that the authors are aware of the nature of the alleged offences or the reason the applicant is seeking a working with Children Check clearance.
8. The applicant has provided a number of certificates of achievement and academic record which the respondent argues do not assist his application.
9. The applicant has provided a written statement in which he denies the allegations against him and submits that we should reject them as groundless without hesitation.
10. The respondent submits that the applicant's denial of the allegations demonstrates his lack of acceptance of responsibility for his actions and does not assist his application.

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

1. Counsel for the Children's Guardian argues that the applicant's traffic offences indicate he has a general disregard for the law because he drove while intoxicated and while unlicensed.
2. The respondent notes that Section 30 (1A) of the Act applies. As previously stated, it provides that: 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.
3. The respondent submits that a reasonable person would not allow their child to have contact with the applicant and that it is not in the public interest to make such an order.

Consideration

1. 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.
2. 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?

1. If it occurred, the conduct that triggered this assessment was serious. It was child related and occurred within the context of the applicant's child related employment.
2. The applicant has consistently maintained that the alleged incident at the refuge did not take place and submits that we should have no hesitation in rejecting the allegations as groundless. He asserted that he was never told a date on which the alleged assault was purported to have taken place.
3. The respondent acknowledges that the investigations into the alleged incident commenced by the refuge and JIRT were not sustained due to insufficient evidence. However the respondent submits that we should find that the alleged incident of sexual assault took place on the balance of probabilities because the FACS investigation resulted in the allegations being substantiated. Counsel for the respondent acknowledged that it is not disputed that the complainant has made allegations of sexual assault against people other than the applicant.
4. The respondent acknowledged that the finding made by FACS was based on the statement provided by the complainant but asserts that she reported the alleged incident in detail to other people, all of whom gave sworn statements and were available for cross-examination.
5. The respondent submits that we should not afford much weight to the evidence of the teenage witness because of a lack of clarity about the time the complaint was made and the time residents of the refuge were required to go to their bedrooms at night.
6. We found the teenage witness to be a credible witness who demonstrated considerable maturity for his age and we accepted his evidence that the complainant did not tell him about the alleged incidents. We agree with Mr Indevar that the teenage witness' evidence calls into question the veracity of the allegations made by the complainant. However it does not totally extinguish the possibility that the events took place. The complainant may have 'embellished' her statement to endeavour to be taken seriously.
7. After considering the evidence available to us, we are not satisfied that the applicant committed the alleged offence. We cannot, however, 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 has been argued that where a 'lingering doubt or suspicion remains' that the acts did occur, this will count against the applicant, but may not necessarily be fatal to the applicant's efforts to obtain a clearance: see, for example, BSR v Children's Guardian [2015] NSWCATAD 264 at [41].
8. In Children's Guardian v CFK [2017] NSWSC 893 at [56], Justice Davies, however, said that: With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or "lingering doubt or suspicion" counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children."

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?

1. 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.
2. 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 offence, 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 v CFW [2016] NSWSC 1406 [23] to [24].
3. Counsel for the respondent submitted that other matters to be taken into consideration are that the applicant has a history of domestic violence involving women and children in his family including a conviction for common assault against his sister in 2006; that he was the subject of an apprehended violence order for two years in 2009 and 2010 and that three 'Risk of Harm' reports were made to FACS in 2008 and 2009. Counsel for the respondent submits that the applicant denied all of the alleged conduct, including the offence of common assault against his sister. Ms Windsor asserted that the applicant's assertion that he pleaded guilty to the assault because of a lack of understanding is not plausible given his proficiency in English and educational achievements.
4. Counsel for the respondent submitted that it was 'extremely difficult to obtain any concession' from the applicant regarding his age and that he was 'evasive, self-serving and obfuscatory in his evidence'. She submits that we should give minimal weight to the applicant's assertion that he maintains a close relationship with his children because he has very limited contact with them and had not seen them for 18 months at the time of the hearings.
5. In relation to his alleged lack of understanding of the difference between pleading guilty and not guilty in relation to the assault charge against his sister, we found the applicant's explanation that he did not understand to be plausible. This court appearance took place in 2006, only two years after the applicant arrived in Australia as a refugee. He appeared to have some difficulty understanding and answering many of the questions put to him during this hearing, even though he now has been in Australia for approximately 14 years.
6. We do not find the issue of the respondent's age to be of significance. We accept that he does not know his exact age and that it is possible that his age was misrepresented by his family at the time he sought refuge in Australia. We do not believe that this increases the probability that he poses a real and appreciable risk to children.
7. We do not believe that it is relevant whether or not the applicant has a close relationship with his children, the definition of which is highly subjective. The respondent implied that it goes to his truthfulness, however it may be that the applicant genuinely sees himself as having a close relationship to his children, even though he has not had much contact with them recently.
8. We considered the respondent's assertions that the applicant has a history of domestic violence. The applicant denies this and asserts that his former partner made false allegations in the context of marital problems. We are not in a position to be able to determine which version of these events is correct. It is common ground, however, that there have been no allegations of violence or inappropriate behaviour on the part of the applicant outside of his family, other than the sexual assault allegation which led to these proceedings.
9. 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 offence did take place we consider the likelihood of any repetition of the behaviour to be low.
10. We are satisfied that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.
11. We are also satisfied that it is in the public interest for the Tribunal to set aside the decision of the Children's Guardian to cancel the applicant's Working With Children Check clearance dated 13 February 2018 and make a decision in substitution for it. The applicant's employment options are reduced unless he is granted a Working with Children Check clearance and it is in the public interest for him to be able to participate in remunerative employment.

Orders

1. The orders of the Tribunal are that: 1. The decision of the Children's Guardian dated 13 February 2018 to cancel the applicant's Working With Children Check clearance is set aside. 2. In substitution for that decision, the following decision is made: The respondent is to grant the applicant a Working With Children Check clearance.

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 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

Amendments 08 March 2019 - Paragraph 95 wording amended. Paragraph 96(1) order amended to remove "refuse to grant the applicant a" and replace with "cancel the applicant's". Word "volunteer" removed Coversheet orders amended to reflect end of decision. 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: 08 March 2019