EBE v Children's Guardian

NCAT Administrative and Equal Opportunity|2019-11-25

Background

This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (the CPWC Act).
The applicant applied for a working with children clearance on 24 August 2019 which was refused. The refusal was based on his conviction on 26 November 2001 of two offences (the disqualifying offences) listed in Schedule 2 to the CPWC Act, being sexual intercourse with a person over 14 years but under 16 years of age.
The applicant seeks the clearance in order to be employed as a security officer at a hospital.

Relevant legislation

The object of the CPWC Act is in s 3 which provides: 3 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.
Section 4 provides: 4 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.
Section 5B provides: 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

Evidence

The applicant relied upon the following material: 1. An undated statement filed 23 October 2019. 2. Six character references. 3. The external appeal form.
The respondent relied upon the following evidence: 1. Documents filed on 10 October 2019. 2. Documents filed on 6 November 2019. 3. Documents produced by the Federal Circuit Court of Australia filed 21 November 2019.
In this case the respondent neither consented to nor opposed the orders sought by the applicant.
As provided in s 28, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

The disqualifying offences

The applicant was convicted of sexual intercourse with a person over the age of 14 years and under 16 years on 26 November 2001. The applicant was given a 12 month suspended sentence on entering into a bond for 12 months to be under the supervision of the NSW Probation Service for the disqualifying offences.
According to the Police Facts Sheet, which was not disputed by the applicant, the applicant and the victim were first cousins. The applicant was 19 years old at the time of the offence. The applicant and the victim were at the home of the victim to babysit the victim's younger sister and were alone. The applicant sat down beside the victim and began touching her on the upper leg. The applicant then asked her to accompany him to the bedroom and once in the bedroom, pulled the victim's pants down slightly and inserted a finger inside the victim's vagina. The applicant then lay down with the victim and after fitting a condom on his penis had sexual intercourse with the victim. The victim stated that she continually said "No" and "stop". She informed the applicant that he was hurting her and he stopped before ejaculating.
The victim informed her mother what had occurred when she returned. The victim's mother spoke to the applicant and his mother, who then went to the police station. In a police interview the applicant admitted having intercourse with the victim, said that it was with her consent, that he believed she was fifteen years of age and that he did not know there was a legal age of consent.
There was also evidence that the applicant had been subject to sexual abuse by a male family friend when he was 13 years of age and living in Junee. The applicant provided a statement to police in 1995 regarding this matter. He said that he had been asked to mow the neighbour's lawn. The man touched him on the penis when he visited to mow the lawn on a number of occasions.
From Police and Family and Community Services records it appears that the applicant's brother and a friend were also allegedly sexually assaulted by this man and shown child pornography. The applicant also told a caseworker he had been shown "kids doing rude stuff" by the man.
The applicant was assessed by a Dr George Wahr , psychiatrist, in September 1996 who assessed him as suffering from an anxiety state relating to his experiences of abuse.
The presentence report for the applicant prepared by a probation and parole officer in 1995 stated that the applicant's father became ill in 1994 and required daily personal assistance and the applicant was one of his caregivers. The applicant had completed his HSC and an Assistant Nursing Certificate at TAFE and was working at an aged care hostel. His employers were aware of the court proceedings and provided a supportive reference for the court stating that he worked in the dementia unit, was well liked by the residents and staff and was a keen and willing employee.
The report stated that the applicant had fully admitted his conduct and expressed contrition. The report's author stated that the sexual abuse when he was 13 may have continued for 2 years.
A coronial report found that the alleged perpetrator, who was well known in the community, had committed suicide by shooting himself after he had been charged with aggravated indecent assault and sexual assault but before the matters came before the court.
It was reported that the applicant had a tendency to blame himself for the suicide, in addition members of the community had abused the applicant's family and blamed them after the suicide. The probation and parole officer described the applicant as quiet and socially isolated.
Following his conviction he attended sex offender counselling as directed for 12 months with a Dr Roger Blake, Senior Psychologist at Junee Correctional Centre. Dr Blake prepared a report in May 2002 in which he stated that he had seen the applicant over six sessions and he had worked through a sex offender program.
Dr Blake conducted a risk assessment of the applicant using the STATIC-99 which is a tool used to calculate the risk of sexual offending. He assessed the applicant's risk of re-offending as within the low range. In addition he did not reveal any major concerning pathology on the SVR-20 (Sexual Violence Risk) instrument and reported an acceptable range of accountability for his offences, motivation for continuing treatment and absence of justifications in relation to his offence. Dr Blake stated: "Whilst one can never be certain, however, in the writer's opinion, [EBE] seems unlikely to reoffend."
Between 2001 and the present, the applicant has no other criminal offences on his record and has never been subject to the terms of an apprehended domestic violence order.
The applicant married in 2004 and he and his wife had five children together between 2006 and 2012.

The applicant's evidence

Under cross-examination, the applicant said he accepted that he was in a position of authority over his cousin at the time of his offence and he deeply regretted what he had done. He said it would have made her hard to trust anyone. He said that he had admitted his conduct to the police straight away and through attending counselling with Dr Blake had learned the implications of his actions and how to become a better person. He had been sexually abused when young.

The FACS reports

From 2007 to 2015 a number of reports were received by FACS concerning the son of the applicant's wife. We will refer to this child as AB.
It appears from the FACS records that AB, who was born in 2001, lived with the applicant and his wife except for periods when he was placed in foster care or lived with his father or his father's family.
The reports stated that AB behaved well when he was in foster care and performed well at school. However when living with his mother and the applicant, his mother stated he was intellectually slow, he was violent and uncontrollable. The caller making the report stated that AB's mother was strict and harsh with him compared to her other children.
It was stated in the FACS reports that AB was of Aboriginal descent on his father's side. The FACs reports expressed concern that he may be receiving inadequate nutrition, based on reports, and his mother appeared unable to cope. In November 2007 the mother surrendered AB for adoption saying she could not manage him, but FACS reported "Mother's partner was upset about her decision to have [AB] adopted" and she changed her mind.
The next reports were received in 2013 at a time when AB was living away from home. FACS received reports that AB had disclosed to the caller that if he was naughty the applicant pulled his pants down and hit him with a belt three times. His mother hit him on the hand with a wooden spoon. AB also said that the applicant once broke his arm during rough play. It was alleged that he was not allowed to swim in the pool because it was for the applicant's children and AB was left by himself and not allowed to join in family activities. There was evidently a disagreement over where AB should live. AB said he did not wish to return to his mother.
In January and March 2014 further reports were received that: 1. AB received minimal food and was not treated well by the applicant; 2. AB was told constantly by the applicant and his mother that he "has no hope" and "is not part of the family"; 3. The applicant had hit AB on the head and it had hurt quite a lot.
In July 2014 the family situation was assessed by FACS. This report said that the injury to AB's arm appeared to have been accidental from rolling down a hill. The report also noted that AB had denied he had been hit by the applicant. Both parents said their physical discipline did not go beyond a smack on the hand. FACS concluded that the children were not in need of care.
Contact was made with the family in March 2015 at which time it was noted that the applicant and AB's mother would not allow him to take part in a program for Aboriginal students which he wanted to join and that the applicant was reported as saying AB was "a terrible kid". It was reported that AB had said to someone at school that the applicant had hit him on the back of his head with his open hand. Later that year it was reported to FACS that AB was told by his mother and stepfather that they did not want him around and when he was 16 they would kick him out. AB was reported to be depressed and was recorded as receiving counselling.
In August 2015 FACS caseworkers visited the family home and noticed that AB's room was "extremely cold and damp" and the room smelled strongly of urine. His mother said that he urinated in the room. There was an allegation (presumably by AB, although it is not stated) that the applicant had urinated in AB's room and sometimes on AB but this was not substantiated and was recorded by FACS to be third or fourth hand. AB admitted to the caseworkers that he urinated in the room sometimes. The caseworkers interviewed the mother who said that the applicant found it hard to spend time with AB because AB made allegations about him hitting him and causing bruises, which the mother said was a lie. She agreed that the applicant had smacked AB in the past but not any more.
FACS had previously recorded that AB had alleged he sometimes went hungry, and did not get as much food as the other children. In August 2015 while the caseworker reported that AB was quiet, she did not report that he appeared undernourished or hungry or that he complained of this during her visit and interviews. She did not report noticing any bruising or receiving any fresh allegations of mistreatment. While his mother and stepfather reported problems with AB's behaviour there were no problems reported by his school or the other household where he had stayed.
Despite the assessment of very high risk and the history of reports no action was apparently taken by FACS to intervene and there are no relevant records before the Tribunal after 2015.
The applicant was recently a party to proceedings in the Family Court of Australia concerning the custody of his children. In an affidavit sworn on 4 February 2019 he stated that he separated from his wife on 21 January 2018. He stated that there were 5 children of the relationship between 3 and 12 years. He said that the children had been in his sole care since 10 January 2019 and that the mother had told him by text that they should stay with him.
He filed a Notice of Risk stating he had seen evidence of physical discipline on his oldest daughter such as welts after the mother had told her to come and pick her up, and his daughter had said her mother had hit her. He said he had sole care of this daughter since 11 March 2018 and said his daughter did not wish to stay overnight with her mother. He said he had also seen his younger daughter with a black eye. He said that one of his daughters disclosed that she had seen her mother having sex with her partner. He had reported these matters to FACS. He deposed that he had also seen evidence that the mother was not attending to the children's medical needs. There was evidence before the Court that his children had texted him to come and collect them on one occasion as they were afraid because the mother and her partner were fighting.
The Notice of Risk filed by the mother stated there was no child abuse or risk of child abuse to the children who were the subject of the proceedings (AB was not subject to the proceedings). On 5 February 2019 interim orders were made that the oldest daughter live with the applicant, apart from each alternate Saturday which she was to spend with her mother during the day only.
The applicant said of AB in the affidavit: "[AB] was removed from the mother's care and lived with his father for a period of time and then moved in with us for a short period of time at the commencement of the relationship. However he was subsequently placed into foster care approximately 5 years ago. The Department was involved in this process. I believe that the mother maintains a relationship with [AB] by way of spending short supervised time with him in the presence of his foster carers."
Final orders were made in the proceedings on 12 July 2019 giving equal shared parental responsibility to the parents for their children.
There were no reports or allegations of domestic violence by Police.

The applicant's evidence

The applicant gave evidence at the hearing. Under cross examination he was vague about the periods of time when AB lived with them and said that he stopped living with them in either 2014 or 2015.
It was put to him that he had not included AB when advising the legal representative for the Children's Guardian of his children. He said he "completely forgot" because "he hasn't been in our care for a long time".
He said that AB was having major behavioural issues and while FACS helped his mother, things got worse. He said that as AB was not his son he did not make decisions about him.
He denied that he had pulled down AB's pants and hit him. He said that he was often beaten as a child, he knew what it was like and he would not allow it in his home.
As to AB's Aboriginality he said that AB's father claimed that he was Aboriginal. He agreed that he had stopped AB attending the "Clontarf Room" for Aboriginal students as it had changed his attitude for the worse. He did not like that non-Aboriginal children could not go into the room and that they just played games when they were supposed to be learning. The applicant said "I don't believe in 'you're Aboriginal - you're white - we're all exactly the same."
He said that he had recently seen AB at his wife's home and they had chatted and AB shook his hand.
He denied the allegations in the 2015 FACS report. He said that the entire house was cold, the family could only afford one heater and the landlord would not do any renovations. He said that when AB was about 10 he would not go to the toilet in the middle of the night and urinated in his room. He said AB's mother was responsible for his medical care. He said AB ate the same meals as everyone, and he did not put AB down - he thought he was "quite a smart kid". He agreed that his wife was "heavy handed" and did not think before she spoke, but he did not hit children, as he hated it when he was a child. He said that AB attended family functions.
At the time he worked long hours at a funeral home, from 7.30 am until 4 or 5 pm, and there were also out of hours call outs. He also did odd jobs for extra cash.

The current situation

The applicant said he had concerns about his children's welfare. He took his eldest daughter to counselling. He had not attended counselling himself since Dr Blake but intended to do so as part of the Family Court process. He wanted to better himself so that he could better his family. His current partner was good with his children and they "adored" her. He said his wife was very difficult, it was either "her way or no way".
His parenting strategies involved routine, time out if they misbehaved, having fun together, talking to them by phone when they were not with him. He said that he had a hard childhood as his father had a stroke while quite young and his parents did not get on. He said he learned about routine while caring for dementia patients.

(a) the seriousness of the offences with respect to which the person is a disqualified person

The offences were quite serious as they concern sexual offences against a child. However we note that the applicant admitted his conduct almost immediately, and received a 12 month suspended sentence with a good behaviour bond, which reflects the seriousness with which the offences were treated by the Local Court.
At the time the applicant and the victim lived in a regional town. The applicant was described as quiet and socially isolated. It was accepted that he had been sexually abused by a family friend when he was about 13 years of age

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

The offences occurred in 2001, 18 years previously. In that time the applicant has no other criminal convictions.

The applicant was 19 years of age at the time of the offences.

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

The victim was 15 years of age. The applicant was aware of her age. The applicant told police he did not know that there was a legal age of consent.

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

The victim was his cousin and he was in a position of authority to her. It could be said that he had been left with her to look after her and the child they were both baby sitting. She was entitled to trust him to look after her.

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

The applicant did know that the victim was under 16 years of age but claimed he did not know that there was a legal age of consent.

(g) the person's present age

The applicant is currently 37 years of age.

(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant has no other criminal history since the conduct occurred. The only other matters pertaining to his conduct since are the allegations which were received by FACS relating to his stepson AB.
The reports made to FACS are allegations and have not been established. In some cases there is contradictory evidence. For example the FACS report of 2015 reported that AB admitted urinating in his room himself. FACS commented that the allegation that the applicant broke AB's arm was discredited and he did it rolling down a hill.
The FACS caseworker observed that the room was colder than the rest of the house on her visit and lacked furniture. She noted that the mother was not attached to AB. There were no reports of domestic violence.
The allegations are concerning but in our view there is insufficient evidence to make a positive finding that the alleged conduct by the applicant which carried a risk of harm to AB did occur. The question is whether there is a risk to the safety of children. The risk must be a real and appreciable risk (s 5B).

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

The likelihood of the applicant repeating the offences of which he was convicted was assessed as low by Dr Blake one year after his conviction. There is no more recent risk assessment available.
In relation to the allegations of conduct towards his stepson, it is noted that his stepson no longer lives with the applicant and there are no allegations concerning the other children.

(i1) any order of a court or tribunal that is in force in relation to the person

The only orders in force known to the Tribunal are those made by the Family Court. They gave equal parenting responsibilities to the applicant and his wife. The Court also ordered the parents to attend parental counselling. No orders were made which suggest that the applicant posed any risk to the children.

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

The references provided by the applicant include his employer, a family member, family friends and a colleague are all supportive of the applicant and state that he is honest, compassionate, hardworking, responsible and committed to his family.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

This is not applicable.

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

The Children's Guardian pointed to the applicant's failure to disclose to the Crown Solicitor AB as a stepchild when asked for details of his children including stepchildren.

Consideration

The Children's Guardian at the outset neither consented to nor opposed the orders sought by the applicant and maintained this position at the conclusion of the hearing.
It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (s 28(7)). 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]. 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].
The Tribunal may not make an order which has the effect of enabling a person to work with children in accordance 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 directly supervised by another person while the affected person was engaged in any child-related work, and 2. it is in the public interest to make the order.
The age of the disqualifying offences, the lack of any subsequent criminal record, and the low risk assessment made after the conviction by Dr Blake, all are in favour of an order being made.
Against an order being made are the allegations contained in the FACS reports which are relevant to the safety of children. These are the allegations of neglect, violence, urinating in the bedroom, physical discipline and denigrating or humiliating the child.
As noted above, several of the allegations were discounted by FACS. One was third or fourth hand hearsay. Others were not investigated. No intervention was taken by FACS. This may be because the child AB ceased to live with the family in 2015. We note that no allegation of harm or risk was made by the mother in the Family Court proceedings.
Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware (CHB v Children's Guardian [2016] NSWCATAD 214).
The Tribunal must consider the public interest in the context of s 4 of the CPWWC Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. There is no definition of "child abuse" in the Act. The Children's Guardian submitted that we should note the definition in s 227 of the Children and Young Persons Care and Protection Act 1998: "(a) the physical injury or sexual abuse of a child or young person, or (b) ….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…" As well as the definition in s 4 of the Family Law Act 1975 being: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child."
The public interest test requires the Tribunal, in the context of that paramount consideration, to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant (Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262). In ZZ v Secretary of the Department of Justice [2013] VSC 267 it was held by Justice Bell that the public interest test included consideration of factors such as the right of a person to engage in work.
The allegations are particular to their circumstances; that is, they relate to the relationship between the applicant and his stepson, which appears to have been troubled. The applicant discounted the importance of his stepson's Aboriginal heritage and does not appear to have taken much interest in his stepson's future.
We found the applicant to be a candid witness although there were some gaps in his answers. His non-disclosure of his stepson in correspondence could be explained by his being an unrepresented applicant. We did not discern any lack of truthfulness in his evidence. He emphatically expressed his opposition to physical discipline and denied the allegations of neglect, mistreatment and verbal abuse. He spoke thoughtfully about how he wished to raise his children and support them.
We consider that the allegations of violence and mistreatment are not substantiated.. Based on the available evidence, we consider that it is possible that the applicant did not treat AB the same as his other children and that AB felt unwelcome and isolated in the household. We do not consider that the applicant poses a real and appreciable risk to the safety of children.
The question for the Tribunal, then, is whether a reasonable person would allow his or her child to have unsupervised direct contact with the applicant while the applicant was engaged in any child-related work.
The case of CHB v Children's Guardian held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware.
In our view this question should be answered in the affirmative, because the reasonable person would regard any possible conduct by the applicant towards AB as regrettable in the family situation but not posing a real and appreciable risk were the applicant to be employed in child-related employment. They would also consider his lack of any criminal record since 2001, the low risk assessment, the manner and content of his evidence, the fact that he was caring for his children including at one time having sole overnight care of his oldest daughter by Court order, the fact that the mother of his children had not raised any relevant allegations against him in the Family Court and the references provided by persons who know him.
As to the public interest, we consider that it is compatible with the public interest that the applicant be granted an enabling order so that he can work and support his children.

Orders 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offences of sexual intercourse with a person over the age of 14 years and under 16 years of which he was convicted on 26 November 2001. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian 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 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: 20 December 2019

Children and Young Persons Care and Protection Act 1998(NSW)

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Judgment (24 paragraphs)

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