Following on from my last post.
I have collected the following cases where the NSW Civil and Administrative Tribunal (NCAT) has made enabling orders in relation to people who would otherwise be “disqualified persons” unable to be granted a “working with children” clearance.
Y1: AZY v Children’s Guardian  NSWADT 301 (22 November 2013)
On 4 May 2001 a vehicle belonging to the AZY, then aged 23, was involved in a motor vehicle accident. Police attended his home and arrested him for the purpose of a blood and urine test. He was accompanied by a friend. They had both been drinking alcohol. The Police took him to Bankstown Hospital for the test. When he walking into the Hospital, he was following one of the officers, a female. He pinched the female police officer on a buttock. He was charged with the offence of “Assault with Act of Indecency” and when the matter came to Court on 26 September 2002, he pleaded guilty and was convicted and sentenced to 150 hours of community service. He appealed against the severity of the sentence and on 21 October 2002, the District Court at Parramatta substituted for the sentence a Bond to be of good behaviour for 12 months with supervision by the NSW Probation Service.
AZY required a clearance because he wished to adopt his niece, aged 10, who had previously been in the care of his grandparents.
Application under s 28 granted and CG ordered to issue a clearance.
Y2 BFN v NSW Office of Children – Children’s Guardian  NSWCATAD 162 (23 July 2014)
BFN was convicted of carnal knowledge in 1976. The offences were in 1973 and 1975 when the victim 13 and 15 and BFN 19 and 21. They had known each other for some time before that. At the time of conviction the victim was pregnant with BFN’s child and they remained partners to the time of the application in 2014 and had other children and in turn grandchildren. There were some other matters in BGN’s history including a failure (with his partner) to obtain treatment for a scalded child and some domestic violence instances but nothing other than a quad bike accident involving a grandson since about 2001 when, according to BFN and his partner, BFN got over his drink problem.
Y.3 BNJ v Children’s Guardian  NSWCATAD 96
BNJ, aged 57, was observed exposing his penis in the presence of an 83 year-old woman for whom he was the carer. The witness claimed he was masturbating; BNJ said that he was massaging his groin to relieve pain associated with numerous hernia operations he had had. He admitted he exposed his penis while doing this but said the woman was asleep and he did not wish to leave her unattended for the 15-20 minutes it would otherwise have taken him to go to a toilet or bathroom to attend to this. The magistrate found an offence proven of aggravated indecency, victim over 16 years, contrary to section 61O of the Crimes Act 1900, but dismissed the charge without conviction under section 10. Nevertheless, the proven offence meant that BNJ was a disqualified person.
BNJ applied to the tribunal for an enabling order. He needed a clearance to resume employment as well as volunteer work with his church and the St John Ambulance.
BNJ did not provide any psychological evidence. He said that as an unemployed person he could not afford it. However, he did have legal representation.
Up to the hearing, the Children’s Guardian opposed the application on the basis that BNJ had not discharged the onus, however, at the hearing additional material emerged, one suspects marshalled by BNJ’s legal representative – including a transcript of the magistrate’s remarks on sentencing and documentary evidence (which was not even available at the criminal hearing) substantiating BNJ’s claims about the hernia operations, and the Children’s Guardian’s attitude softened. BNJ’s application was granted. The flavour of the reasoning can be gathered from the following brief extract:
69 The Tribunal takes into account that the finding of the Local Court that the offence of aggravated indecency was proved. The Tribunal accepts that that the applicant’s actions in exposing his genitals in the presence of a elderly person to whom he was providing care was inappropriate and concerning. The victim was vulnerable, lacked capacity to give consent, and was unable to independently remove herself from the situation.
70. However, the Tribunal notes that this matter does have some extenuating circumstances. The applicant has been consistent in his claim that his actions were to relieve pain rather than to obtain sexual gratification. At the Tribunal hearing, he has produced medical records that corroborate and substantiate his claims that at the time of his offence, he had a 2-3 year history of groin pain, including four surgical procedures for hernia repair, and further investigation and treatment. Such evidence does not appear to have been before the Local Court during the criminal proceedings, and is relevant in terms of the applicant’s conduct and his credibility generally.
Y4: BFX v Children’s Guardian  NSWCATAD 115
On 10 January 1998 BFX, then aged 26, was at a party with a large number of other guests. At a time just before dawn, after a night partying and consuming alcohol with the other party guests, BFX performed cunnilingus upon the victim, aged 28, who had been asleep on the lounge chair. The victim awoke. The victim slapped him across the face and kicked him in the head area. It was alleged that BFX admitted the offence to the victim’s sister, when she asked him what happened. BFX pleaded guilty. The victim was a policewoman and the sister of a friend of BFX.
BFX was sentenced to 15 months periodic detention. He lost his job as a teacher. He was now married with three children under 10 and a step-child aged about 11. He ran a cleaning business which included contracts to clean a number of schools out of hours. For this, once the 2012 Act commenced in 2013, he needed a working with children clearance.
BFX had a number of other offences including some subsequent offences relating to driving and alcohol, though none particularly recently. There were no subsequent offences of a sexual nature. He did not provide any psychological reports. Nevertheless, his application for an enabling order was granted. This appears to be the reasoning:
98 The applicant is a responsible businessman who employs a number of people in his cleaning business. The purpose of the enabling order will be to allow him to continue cleaning schools outside of school hours. It is possible that he will come into contact with schoolchildren as part of that process.
100 The behaviour of the applicant was beyond reasonable community norms but was unplanned, and was not part of ongoing or escalating events. The behaviour is not recent, but if repeated, would do significant harm. There has been a significant and sustained positive socialisation since the offending behaviour occurred and there has been no recurrence of concerning similar behaviour over a significant period.
101 There has been a genuine and sustained effort to remedy the offending conduct. Remorse expressed by the applicant, on its own, has not been considered to be a significant factor that mitigates risk.
In all of the circumstances, on the balance of probabilities it is assessed that the applicant will not pose a real and appreciable risk to the children with whom he will possibly come into contact.
Y5: BRU v Children’s Guardian  NSWCATAD 119
In the first half of 1970, BRU, then aged 18, had a sexual relationship over a period of about 6 months, with a girl, aged 15, whom he had met at a dance. He said he thought she was 16 but had never asked. Reading between the lines, the relationship came to an end with the discovery of the girl’s pregnancy. BRU pleaded guilty (to “carnal knowledge”) and was convicted for this in September 1972. A daughter was born. Apart from some financial support and attending her marriage, BRU did not have anything more to do with her. He subsequently married twice and had three daughters, by now grown up, from the (by now) 36-year second marriage.
In November 2014 three of BRU’s grandchildren were removed from his daughter’s care and placed under the care of BRU and his wife. The children were aged 11, 4, and 6 months. Since BRU was a disqualified person he was required to move out of the matrimonial home and at the time of the tribunal hearing was living with his mother and a sister.
BRU needed an enabling order if he was to be able to move back in with his wife to help her look after the grandchildren. BRU’s wife was hoping to be granted parental responsibility or guardianship over the children: one suspects that initially the application was a joint one with BRU before his disqualification came to light.
There was nothing else adverse on BRU’s record; a psychologist said that the risk that BRU presented was minimal and currently commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child.
The application was granted. BRU was also given a section 128 certificate. That is a certificate that can be given under the Evidence Act which prevents a person being incriminated by answers that person is obliged to give in evidence. , Presumably this related to questions he was obliged to give under cross-examination which admitted that there was some period when, as a disqualified person, he was living in the same house as his grandchildren, which is an offence.
Y6: BGS v Children’s Guardian  NSWCATAD 57
In 1991 BGS pleaded guilty to an offence under section 61E (1) of the Crimes Act 1900 (NSW) namely:
“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.”
The circumstances of the offence were that BGS, then aged 21, met a couple of girls at a swimming pool who afterwards (on BGS’s account) came back with BGS to the caravan where BGS lived with his parents. The police facts relate:
“On 30th November, 1990 [BGS], met [girl 1] and [girl 2] at [the Caravan Park]. [Girl 1] and [girl 2] accompanied [BGS] to his parents’ caravan. The defendant went inside the caravan to shower and [girl 1] and [girl 2] followed the defendant into the annex of the caravan and talked to him immediately outside the shower area whilst the defendant was showering. [Girl 1] and [girl 2] then accompanied the defendant to another area of the caravan, namely the lounge area, where the defendant dressed. [Girl 1] took the defendant’s wallet and did so with the intention of teasing the defendant. The defendant then bent over and gave [girl 1] a “love bite” to the left hand side of the neck. The 2 girls then went to the bedroom area to look in the mirror so as to see the effects of the “love bite”. The defendant followed them into the bedroom. The defendant then put an arm around each girl and they all fell to the bed. The defendant said “how about a threesome”. [Girl 2] left the bedroom area. The defendant kissed [girl 1] and rubbed his hands down her legs and between her legs. The defendant proposed sexual intercourse and [girl 1] refused. [Girl 1] then left. The defendant was cooperative with police.”
The offence related to [Girl 1]. BGS said that he thought she was aged 17. She was in fact 15. BGS agreed in his oral evidence that he gave the girl a “love bite”, but denied he suggested a “threesome”. BGS agreed he suggested they have sex, but after she said “no” she left. The applicant described the incident in his oral evidence as a couple of people “mucking around”.
The magistrate found the offence proven but did not record a conviction and imposed a recognizance to be of good behaviour. BGS said that he also ‘volunteered’ to perform unpaid community service work. The report to the court dated 20 August 1991 (that is, one year after the sentence was imposed) identified that BGS undertook 24 hours community service “efficiently and with enthusiasm”: BGS described this work in his letter attached to the application to the Tribunal as that he was “sent” by the “community service board” to do community service at “an underprivileged kids camp”.
The tribunal accepted that the offence was at the lower range of seriousness, that it was opportunistic and an isolated incident in BGS’s history. A psychologist reported that BGS fell within the ‘low-moderate’ risk category with a risk of reoffending within the next 5 years estimated at 3.1% in accordance with the actuarial tables that accompany the Static-99R coding rules. The psychologist’s overall opinion is that BGS’s risk of reoffending should be considered as being “extremely low.”
In fact the tribunal calculated that the psychologist had miscalculated BGS’s score by one point, which put his risk under that test a little lower.
The psychologist commented that BGS had expressed remorse.
BGS was likely to need a clearance for volunteer work he performed. He had character references.
There was one fly in the ointment: the Children’s Guardian suspected that there had been a plea bargain of some sort back in 1991, because there were some documents which suggested an allegation of sexual intercourse even though that was not contained in the statement of police facts. The tribunal brushed this aside in the absence of further evidence. Presumably the court file did not contain any statements by the girls.
An enabling order was made.
Y7: BRY v Children’s Guardian  NSWCATAD 220
To paraphrase the police facts:
on the evening of 15 June 2002, BRY, then aged 21, was with friends in a nightclub area of a Leagues Club. The victim, (the tribunal thought she was likely to have been a similar age to BRY and held that she was not a child), who was unrelated and unknown to BRY was leaning over a barrier on a staircase talking to another person, when BRY put his hand down the back of the victim’s trousers and tried to put his finger between the victim’s buttocks. The victim turned around and pushed BRY in the chest, pushing him approximately one metre away. The victim recommenced her conversation with her friend. BRY approached the victim again and poked her buttocks and anus over her clothing on two occasions. The victim pushed BRY in the chest and said “fuck off”. BRY walked towards the victim and spat in her face. With a closed fist he swung his arm in the direction of the head of the victim, who took evasive action by ducking backwards and was not struck. BRY moved closer towards the victim and again spat in the victim’s face.
These latter three actions of BRY comprised the three counts of common assault.
BRY said he was drunk at the time. The tribunal held his conduct could not be characterised as being of the most severe type of matters constituting indecent assualt.
BRY had not committed any subsequent sexual offences but did have a number of alcohol-related offences culminating in breaches of AVOs (domestic violence orders) associated with the end of a relationship in late 2007. These led to him being sentenced to a suspended term of imprisonment, but also led to him, obviously in order to avoid actual imprisonment, entering into a detoxification program which appeared to have stuck since then. (He said he had already given up drinking.)
There was a blip of an episode in 2010 involving his partner and his daughter and an interim AVO which never became final, but the tribunal accepted that there was a finding that some of the allegations had been found not to have occurred and that as the partner was supportive and said nothing of them did not take that matter any further.
BRY provided a sort-of psychologist’s report which the Children’s Guardian criticized. He had qualified as a chef but was now unable to do that and wished to do (and had already done) good works within the indigenous community especially in relation to sport. He was studying to be a drug and alcohol counsellor and wanted to work with indigenous youth. He was supported by a phalanx of witnesses in relation to the good works he had done and could do, including his brother, a case manager within the Department of Family and Community Services, a senior employee of Aboriginal Affairs and a Director of an Aboriginal Corporation (that’s 3 separate people).
The tribunal became almost misty-eyed:
79 … the Tribunal notes that the disqualifying offence was not committed against a child. It occurred 13 years ago, and therefore is not particularly recent conduct. The Applicant was 21 years of age at the time of the offending and was a heavy user of alcohol. His conduct, although clearly not trivial and his intoxication not an excuse, was less serious than other conduct which may constitute an offence of indecent assault.
80 His other (non-disqualifying) offending did not involve any offences against children. His offending, and his actions which led to the granting of apprehended violence orders in respect of his former partner, were committed at a time when the Applicant was in his twenties, was using alcohol and/or illicit drugs on a regular basis, and had not engaged appropriate professional support to address those issues.
81. The Tribunal notes that the Applicant successfully attended rehabilitation in 2007 and 2008. There was some question about the timing of his abstinence from drugs, and in particular, whether it occurred prior to the commission of his last offence in November 2007. In this regard, the Tribunal findings do not turn on the specific dates. It has been established that the Applicant entered rehabilitation in late November 2007 and has maintained his abstinence since that time, as corroborated by his former partner, family and friends. It is also pertinent that the Applicant has had a lack of relevant criminal convictions for almost eight years, and this mainly coincides with his abstinence from alcohol and drugs. The Tribunal finds that the Applicant is genuine in his desire to help Indigenous youth from making similar poor choices, and to encourage them to lead healthier and more productive lives.
82 The Tribunal found the Applicant to be a frank and forthcoming witness. The Tribunal considered that the Applicant has accepted responsibility for his disqualifying offending, and does not seek to minimise his actions nor shy away from the poor conduct and poor choices he has made in the past. The Tribunal is further satisfied that the Applicant has demonstrated insight into the harm caused by his past conduct, and the serious impact of drug and alcohol abuse, sexual assault and domestic violence in the community.
83. In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending, and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely drug and alcohol detoxification and rehabilitation, to address his use of drugs and alcohol, which featured prominently in his past offending and conduct.
84. The Applicant has matured significantly and has made important changes to his life, which is reflected in his lack of relevant criminal convictions in recent years. He enjoys stable relationships with his current partner and his family. He is actively involved in his children’s lives and in his local community. He has gained qualifications and employment, and is pursuing a course of study. There is now an opportunity for the Applicant to build upon his progress and prevent others from remaining on a path of drugs and crime.
An enabling order was made.