DSJ v Children's Guardian

The Evidence

1. The Application attached a letter from the Children's Guardian dated 16 January 2019 informing DSJ that he is a disqualified person under the Act. The documentary evidence provided on behalf of DSJ and the Respondent, which has been received by the Tribunal, is as follows: 1. Application filed 1 February 2019: Exhibit A1; 2. Character reference filed 27 March 2019: Exhibit A2; 3. Character reference dated 13 February 2019: Exhibit A3; 4. Character reference dated 19 March 2019: Exhibit A4; 5. Letter of DSJ filed 27 March 2019: Exhibit A5; 6. Report of Graeme Randall and others dated 26 March 2019: Exhibit A6; 7. Safety Plan (undated): Exhibit A7; 8. Updated report of Mr Graeme Randall and others dated 20 May 2019: Exhibit A8.
2. Documents filed by the Respondent include: 1. s58 documents filed 7 March 2019: Exhibit R1; 2. s58 documents filed 23 April 2018: Exhibit R2.
3. The Tribunal received, and was assisted by, written submissions from DSJ and the Respondent.

Legislative Provisions

1. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance (sections 3 and 28(1) of the Act).
2. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act (section 4 of the Act).
3. There is no relevant definition of "child abuse" contained in the Act. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]- [30], an offence of "child and young person abuse" has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence 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"
4. In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
5. The Disqualifying Offence with which DSJ was charged and 'convicted' is one which falls within clause 1(1)(g1) of Schedule 2 of the Act. Therefore, DSJ is treated as a "disqualified person". By reason of section 18(1)(a) of the Act, the Children's Guardian must not grant a WWCCC to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. DSJ is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence.
6. An enabling order is sought by DSJ pursuant to section 28 of the Act, which provides: "28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a Working with Children Check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions."
7. The Respondent is a party to the proceedings pursuant to section 28(4) of the Act.
8. A person is not permitted to engage in "child-related work" unless they hold a WWCCC (section 8 of the Act). There is no issue in this matter that DSJ wishes to engage in voluntary work with his local church which requires that DSJ obtains a WWCCC.

Standard of Proof

1. It is to be presumed, unless DSJ proves to the contrary, that DSJ poses a risk to the safety of children (section 28(7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children's Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children's Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J at [34].

Relevant considerations

1. In making a determination under section 28 of the Act, the Tribunal must consider the matters under section 30 of the Act. Those matters are: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) 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, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (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, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (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: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter."

What must be determined

1. The Tribunal is to determine whether DSJ has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28(7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before it in order to assess whether the onus of proof has been discharged to rebut the presumption.
2. In determining whether DSJ does pose a risk to children it is accepted that the risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children's Guardian[2015] NSWSC 523 per Beech-Jones J esp at [26], [27].
3. In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). … [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, 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."
4. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: 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, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

Discussion of the evidence

1. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30(1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others, however each of the subsections is to be considered. That evidence is set out below.
2. In addition to the matters in section 30(1) of the Act, if the Tribunal concludes that DSJ does not pose a risk to the safety of children, it must also consider the remaining criteria as set out in section 30(1A) of the Act.

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

1. It is without doubt that the Disqualifying Offence is serious. Notwithstanding this, the circumstances in which DSJ offended are set out in the Respondent's submissions. DSJ pleaded guilty to the offence. He made full admissions that he woke up in the middle of the night and went to obtain a drink from the kitchen. He walked past his stepdaughter's room and saw her asleep on the bed. He entered the room and placed a finger between her vagina and her bottom moving it backwards and forwards from her vagina and towards her back over her underpants. The victim saw DSJ and pulled the covers over her face. DSJ walked out of the room. She started screaming and told DSJ to go away and the victim's mother then arrived. The victim said this had never happened before.
2. The Respondent submits: 'The offence is objectively serious, although not the most serious of its type. As well as the age of the victim, and her vulnerability by being asleep, the offence involved a gross breach of trust given the Applicant's relationship to the victim as her stepfather. It is conceded that the offence is not the most serious of the range of disqualifying offences contained in Schedule 2 of the Act; neither is it the least serious.'
3. We accept these submissions.

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

1. Approximately 29 years have passed since the disqualifying offence took place. There is no evidence that DSJ has committed any offence (similar or otherwise) since that time.
2. We note that DSJ participated in a pre-trial diversionary programme commencing on 27 February 1990. His progress was marked "unsatisfactory" and he did not complete the programme within the permitted time. In the result he was breached. DSJ took twelve months to accept that the sexual abuse was planned. DSJ also took considerable time to appreciate the effect the assault had on the victim and her family. He struggled with maintaining and promoting relationship boundaries, including seeking information about the victims' therapy.
3. DSJ consulted a psychologist Dr Borenstein , who, taking into account the above matters determined that the risk of DSJ reoffending was "extremely low". He was breached on 13 April 1992 for failing the diversionary program and was supervised by Corrective Services until 12 April 1995. DSJ continued to consult Dr Borenstein and by September 1994, he had developed "…an honest approach to counselling which has assisted his treatment". We accept Dr Borenstein 's evidence.

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

1. DSJ was 28 years of age at the time of the disqualifying offence.

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 victim was 14 years old at the time of the disqualifying offence. Other than her age, and the fact that she was under the care of DSJ as his stepdaughter, she was vulnerable due to the fact she was asleep at the time of the offence.
2. The only evidence before us is that the sexual contact was not consensual nor invited.
3. We find that the victim is vulnerable by virtue of her age. She did not invite or give consent for DSJ to touch her in the manner in which he did which is an aggravating feature of his conduct.

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

1. The difference in age between the victim and DSJ is approximately fourteen years.

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

1. DSJ knew that the victim was a child.

The person's present age

1. DSJ is currently 58 years of age as at the date of the hearing.

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

1. In addition to the disqualifying offence, DSJ's criminal record also consists of a conviction in 1984 for stealing and in 1992. Subsequent to the disqualifying offence, he was convicted of an offence for breaching the Pre-trial Diversion of Offenders Act 1985 as set out above.

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

1. Mr Borenstein, Psychologist, noted in 1990 and 1991 that the likelihood of repetition of the offending behaviour was 'extremely low', and that the offence was isolated and arose from a combination of stressors.
2. In a psychological report prepared by Mr Graeme Randall, DSJ was assessed using the static 99R, yielding a low risk of reoffending. On the SONAR, an assessment of dynamic risk factors, Mr Randall assessed DSJ as also being at low risk. Despite Mr Randall noting that there were several issues that could increase the risk, he expressed the view that DSJ would qualify for a diagnosis of major depressive disorder in full remission, and that he was currently adherent to medication to ensure that his depressive disorder remained in remission.
3. Mr Randall said he could not place DSJ in the category of being a paedophile. He concludes by stating 'Given the low risk of offending, and DSJ's proactive efforts to live a good life free from any pro-offending behaviour, it is expected that with sufficient boundaries, which DSJ is committing to, there should be no difficulties with him engaging in volunteer activities where children may be present.'
4. We have taken into consideration the evidence of Mr Randall as set out above. We accept his evidence and that of Dr Borenstein that DSJ is in the category of 'extremely low' to 'low' risk of reoffending.
5. Mr Randall was cross-examined. Despite a robust exchange between Mr Randall and Counsel for the Respondent, we find that Mr Randall is a reliable and competent witness. We accept his opinion as set out above.
6. We have taken into consideration the lay evidence of various persons who provided a character reference for DSJ (Exhibits A2, A3 and A4). We accept that their evidence provides a lay person's insight into DSJ's character. However, each of the character references do not specifically refer to the subject Disqualifying Offence. In the result we attach little weight to them.
7. There is always a detrimental impact on children of any repetition of the Disqualifying Offence. However, we find, based on the available expert evidence of Dr Borenstein and Mr Graeme Randall, the likelihood of DSJ repeating the disqualifying offence is low due to the lack of any other relevant offending, the time that has passed since the offence, DSJ's current life circumstances, and the fact that the offence occurred in the context of it being isolated and from a combination of stressors.

Any order of a court or tribunal that is in force in relation to the person

1. There is no evidence of any order of a court or Tribunal in force in relation to DSJ.

Any information given by DSJ in, or in relation to, the application

1. DSJ gave evidence and he provided a summary of his current circumstances which are set out in a letter from his solicitor who assisted him in the preparation of his application (Exhibit A5).
2. DSJ said that since the offence he has become a committed Christian and would like to help underprivileged people in the community. He wants to help feed the homeless and also become a volunteer chaplain. He has completed a course 'Intro to Chaplaincy' at Liverpool Hospital run by Anglicare. By the end of 2017, DSJ said he intends to have completed his Certificate in Ministry and Theology through the Vocational Bible College. He attends a Christian motorcycle club which arranges Scripture Union Outreach and Christmas school holiday programs each year. An outreach program is also run where food is provided for children. The opportunity to play games is afforded and adults can converse over tea and coffee.
3. DSJ acknowledges that in order to attend church events he must adhere to a safety plan as per the regulations of the Church. A copy of that safety plan has been provided and is marked (Exhibit A7). We accept DSJ's evidence that he intends to adopt and adhere to the safety plan once the outcome of this hearing is determined, and, when he is allowed to participate in the proposed activities following a grant of a WWCCC.

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

1. No information was obtained in accordance with the section.

Any other matters that the Children's Guardian considers necessary

1. The Respondent makes no submission in this regard.

Consideration of the section 30(1A) matters

1. The Respondent maintains a neutral position as to whether DSJ has rebutted the presumption that he is a risk to the safety of children, and as to whether the matters in section 30(1A) have been satisfied.

Consideration of the facts and determination

1. At the time in which the offence occurred DSJ was 28 years of age. He is now approximately 58 years of age. Significant time has passed since the date of the offence.
2. We accept DSJ 's evidence concerning the circumstances in which the offending conduct occurred and the evidence of Dr Borenstein and Mr Randall which is set out above.
3. We have considered the Respondent's neutral position in terms of whether DSJ poses a real and appreciable risk to the safety of children and whether the presumption that he is a risk to children has been rebutted.
4. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks that 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, however it is not the only factor that must be considered.
5. In all the circumstances, on the balance of probabilities, taking into account each of the considerations required under section 30 (1) of the Act, and having regard to the material before the Tribunal, it is concluded that DSJ does not pose a real and appreciable risk to the safety of children. The evidence establishes that DSJ has discharged the onus of proof as set out in 28(7) of the Act.
6. We have considered the decision of CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 which dealt with the 'reasonable person test'. At paragraph 73 the Tribunal observed the following: 73. The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY's care.
7. We accept and have taken into consideration the evidence of DSJ and to a limited extent the character references as set out above. We have considered the police facts which relate to the disqualifying offence. DSJ pleaded guilty to those facts. We have considered the time which has elapsed since the Disqualifying Offence took place, and, DSJ has not been the subject of any similar or other offences since. In having this information before them, we find a reasonable person would allow his or her child to have direct contact with DSJ that was not directly supervised by another person while DSJ was engaged in any child related work.
8. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75. 74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations. 75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
9. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that DSJ's right to follow his ambition of a volunteer, contrasted with the protection of children, are in this instance complementary and in the public interest. Such activity would not pose an unjustified risk to the safety of children.
10. DSJ should receive a Working with Children Check clearance.

Orders

1. The order of the Tribunal is that: 1. It is declared DSJ is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of an assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) entered on 21 June 1990 at the Parramatta Local Court. 2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 February 2019 is granted. 3. The Children's Guardian is to grant a working with children check clearance to DSJ pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).3

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 23 August 2019 - Typographical error on coversheet and paragraph 64 amended 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: 23 August 2019