BFC v The Children's Guardian
[2014] NSWCATAD 90
•08 July 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BFC v The Children's Guardian [2014] NSWCATAD 90 Hearing dates: 13 May 2014 and 23 June 2014 Decision date: 08 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior member Decision: 1) The Tribunal declares that BFC is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the 3 incest offences found proved by the Supreme Court at Armidale on 17 November 1982.
2) The Children's Guardian must grant BFC a Working with Children check clearance.
Legislation Cited: Crimes Act, 1900
Child Protection (Working with Children) Act, 2012
Child Protection (Prohibited Employment) Act, 1998Cases Cited: Commission For Children and Young People -v- V [2002] Category: Principal judgment Parties: BFC (Applicant)
The Children's Guardian (Respondent)Representation: Counsel
Mr G Moore for the Respondent
Bird Legal for the applicant
Crown Solicitor for the Respondent
File Number(s): 1410073 Publication restriction: S64 Civil and Administrative Tribunal Act 2013
reasons for decision
INTRODUCTION
On 17 November 1982 the Applicant was convicted in the Supreme Court on 3 counts of incest which occurred in about March 1981 or earlier. The sentence was suspended on the basis of him entering into a 3 year recognizance conditional upon him accepting the supervision of the Probation and Parole Service of the Department of Corrective Services and attending Alcoholics Anonymous.
The offences of which the Applicant was convicted were offences under s.78A of the Crimes Act. Pursuant to paragraph 1(j) of Schedule 2 to the Child Protection (Working with Children) Act, 2012 ("the Act") it is a disqualifying offence in so far as s.18 of the Act prohibits the Children's Guardian from issuing a Working with Children clearance check to a person who has such a conviction.
When the Act came into force the Applicant was caring for two of his granddaughters. One of the daughters, D, had been in the care of the Applicant since about early 1997 when she was 9, and the other granddaughter, U, had been in his care since 2005 when she was aged 2. Both the granddaughters were children of the daughter of the Applicant, who suffered a drug addiction and had left the children with the Applicant. In March 1997 the Applicant and his wife were granted custody and guardianship of D by the local Court at Bathurst. His wife died in 2000. On 30 October 2007 the Local Court at Bathurst Ordered that U reside with the Applicant and he have sole parental responsibility for her.
In January 2014 the Applicant was informed by the Department of Community Services that he had failed the Working with Children check because he was registered as a child sex offender. The children were removed from his care. D has since completed high school and U is living with an aunt in Sydney.
THE EVIDENCE
The evidence comprised:
1) The Application filed 17 February 2014
2) The Affidavit of the Applicant sworn 14 March 2014
3) The Respondent's bundle of documents with Tabs 1 to 10
4) Tab 11 - records produced by Dr James Blackwood
5) Tab 12 - additional materials filed by the Respondent
6) Report of Ms Jenny Howell filed by the Applicant
7) Oral evidence and cross-examination of the Applicant on 13 May 2014
8) Oral evidence and cross-examination of Ms Howell on 23 June 2014
9) Exhibit A1 - e-mail from Dr Keshiba
RELEVANT PROVISIONS OF THE ACT
Section 4 provides that:
"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 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 provides that there are two classes of Working With Children Check Clearances which are:
a) Volunteer - authorising workers to engage in unpaid child-related work;
and
b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work.
Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18(1) prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was an adult at the time of the offence.
In Schedule 2 to the Act, the offence of incest for which he was convicted under the Crimes Act, 1900 is included in the specified offences that are disqualifying offences.
Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offences in 1981. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant.
Section 28 provides:
(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 Commission 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 Commission 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.
(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.
Section 30 provides:
(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 H of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the H,
(e) the difference in age between the H and the person and the relationship (if any) between the H and the person,
(f) whether the person knew, or could reasonably have known, that the H 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,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Commission considers necessary.
(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter.
Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions TribunalAct 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.
(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.
PRESUMPTION
Section 7 contains a presumption that, unless the Applicant proves to the contrary, the Applicant poses a risk to the safety of children.
ENABLING ORDER CANNOT BE SUBJECT TO CONDITIONS.
It should be noted that ss.28(8) prohibits the making of a enabling order subject to conditions.
DISCLOSURE
Subsection 28(5) requires the Applicant to make full disclosure of any matters relevant to the Application.
MATTERS UNDER SECTION 30
a) The seriousness of the offences
In 1975 the Applicant married M. He described the relationship as "somewhat chaotic" because of his abuse of alcohol. The Applicant and M had 4 sons. M had 2 daughters, one of whom, H, was born in 1967. In his Affidavit the Applicant purported that H was conceived at a time when he and M were separated. The Applicant demonstrated in his evidence that he has a very poor memory and that at the time of the alleged conception he was suffering from Post Traumatic Stress Syndrome and alcohol abuse. He was suffering blackouts from his alcohol abuse. He could not recall the date of birth of H. He did not know where she was born. He did not give evidence as to the period of the separation during which he alleges H was conceived.
H was born during the marriage and therefore at law there is a presumption that she is the child of the husband and the wife. The evidence offered by the Applicant falls short of establishing that H was not his child.
The Applicant's evidence that he pleaded guilty to 3 charges of incest but did not know at the time that it would not have been incest if H was not his biological daughter, was not credible particularly given the history of the charges and appearances in the Local Court and the Supreme Court in relation to the incidents and the fact that he was legally represented.
The Applicant's evidence that he thought H was 17 years of age at the time (when in fact she was 14) is also not credible.
On Sunday, 22 March 1981 the Applicant returned home early in the evening after being out with friends drinking alcohol. He became involved in an argument with his wife and assaulted her. She left the home to go to the Police Station to seek assistance. While she was gone, the Applicant spoke in threatening tones to his children including H. H told the Police that he punched her a number of times while she was in her room. When she went to check that her younger brother was asleep in her parents' room, the Applicant entered and told her to get onto the bed. He removed his trousers and underpants and made the H remove her panties. He then had sexual intercourse with her. He then rolled over and went to sleep. When his wife returned home H told the wife that the Applicant had raped her.
The Police were called and recorded that the Applicant was naked from the waist down. H's panties were found near the bed. In the Applicant's presence H told the Police:
"I was sitting on the bed in my room and then he came in. He punched me in the face and then walked outside into the scrub. A short time later he came back into my room and punched me in the breast and pulled me into the double bed where Mum sleeps. Then we were in there and he took my pants off and raped me."
H said she struggled with the Applicant and the Police observed there were scratches on the Applicant's right forearm, his left chin, and in the vicinity of his left ear lobe. H had slight swelling to her lip and some tenderness to her face.
In cross-examination at the Committal proceedings H said that the accused pulled her panties half-way down and then he made her take them off completely. H also complained to the Police after that incident that the Applicant had raped her on 2 previous occasions and provided some limited detail of these.
Initially the Applicant was charged with 3 counts of rape, but eventually it was agreed that he would plead guilty to 3 counts of incest.
The offences were very serious.
b) The period of time since those offences and the conduct of the person since they occurred
The only subsequent conviction of the Applicant after incest convictions was a conviction on 21 September 1988 in the Armidale Local Court for driving with a high range of the prescribed concentration of alcohol. The Applicant was fined $500.00 and disqualified from driving for 12 months.
The offences occurred about 33 years ago. He has had only the one charge or conviction since then and nil in the last 26 years.
There is also no evidence of conduct of the Applicant in the last 26 years that reflects adversely on him.
Since 1988 the Applicant has resided in Bathurst in the same residence. He rented the home at first and purchased it in 2013. His wife died in 2000. In the period 2005 to 2014 the Applicant has been the sole carer for one and, then from 2007, for two of his granddaughter.
Since about 1998 the Applicant has been an active member of the Bathurst Vietnam Veterans Association and the Bathurst RSL.
In his Affidavit, although he alleged that the sexual intercourse with his daughter was consensual, he gave sworn evidence that:
"I am extremely sorry that the incident between [H] and myself occurred, even if [sic] the circumstances that she is not my daughter."
He also says:
"99 I say that the person I was in 1982 when the incident occurred is vastly different from the person that I am today.
100 I have only to having [sic] to undertake a psychological expert risk assessment and I consent to any report be [sic] prepared to be made available to the Tribunal or any person involved in the determination of my Application.
101 I simply wish to be provided the opportunity to raise my granddaughter (U) in the manner in which I did her older sister (D).
For reasons which are set out later, the Tribunal accepts that the Applicant has since 1994 over-come his problems with Post Traumatic Stress Disorder and alcohol abuse.
c) The age of the Applicant at the time of the offences.
The Applicant was 33 years of age.
d) The age of the victim at the time of the offences and matters relating to the vulnerability of the victim
H was 14 years of age. She was the Applicant's daughter reliant upon him for care and protection. It was a position of trust and he abused his position.
e) The difference in age between the Applicant and the victim and the relationship between the victim and the Applicant
The difference in age was 19 years and the Applicant is the father of the victim.
f) Whether the person knew the victim was a child
The Applicant knew that H was a child. Although he claims to have believed that she was 17, she was 14 and had lived as a member of his household for almost all of her life. The Tribunal finds that the Applicant's evidence that he thought H was 17 is not credible. The Tribunal is comfortably satisfied that he knew she was 14 or about 14.
g) The Applicant's present age
The Applicant is 66 and will turn 67 on 25 July 2014.
h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence occurred
From 1967 to 1971 although the Applicant had some convictions they were generally associated with his alcohol use and were not serious offences.
For three offences the Court fined him $40, $30 and $20. He was sentenced to 7 days hard labour for vagrancy in December 1971. On 29 December 1971 he was sentenced to 6 months hard labour (from 16 December 1971) for assaulting his wife. In February 1978 he was convicted of driving with the prescribed concentration of alcohol, fined $150 and disqualified from driving for 1 month.
The only offences following that are the three subject offences of incest for which he was convicted in 1982 and the High Range PCA offence in September 1998 for which he was fined $500 and disqualified for 12 months.
His criminal record is generally not serious and he has no criminal record in the period of almost 26 years since the last conviction.
i) The likelihood of any repetition by the Applicant of the offences of conduct and the impact on children of any such repetition.
The impact on any child victim of sexual abuse by the Applicant would be seriously adverse and long term.
In relation to "likelihood", there is an 11 page report prepared by Ms Howell, a Clinical Psychologist. Ms Howell is a Clinical Member of the Australian and New Zealand Association for the treatment of sexual abusers and is an accredited supervisor with the Children's Guardian Children and Young People Child Sex Offender Counsellor accreditation scheme.
Ms Howell was briefed by the solicitor for the Applicant and was cross-examined at the hearing by Counsel for the Respondent. Ms Howell presented as a credible expert witness. In preparation of her report she used the Static-99R actuarial based assessment of risk, which classified him in the low - moderate risk category for being charged or convicted of another sexual offence. Approximately between 14% and 15% of such people re-offend within 10 years. There is no evidence that the Applicant has re-offended although it is now 33 years since the offences.
Ms Howell also took into account dynamic risk factors and concluded that the Applicant "does not pose a risk to the physical, emotional and sexual safety of children". In her oral evidence, Ms Howell said that the Applicant had told her he had ceased using alcohol in early 1990 and had subsequently abstained. However, this is not consistent with his affidavit evidence that he commenced treatment with a psychiatrist, Dr Keshava, in 1992 for his Post Traumatic Stress Disorder ( arising from war service in Vietnam) and his evidence that he gave in cross-examination, including evidence that he had drunk "a schooner" on ANZAC Day in 2013.
Ms Howell said that subsequent use of alcohol after 1990 would concern her.
Dr Keshava has been continuing his treatment of the Applicant since 1993 and counselling him several times per year. He has provided a report and says that the Applicant "successfully stopped drinking in 1994 and smoking since 1994 and he is a teetotaller and leads a respectable life". Dr Kasheva was not cross examined.
The Tribunal is comfortably satisfied that the Applicant has almost totally abstained from alcohol for the last 20 years.
Dr Kasheva's opinion of the Applicant is that he is "a very caring responsible gentle man. He does not pose any danger to his grand-daughter [U] or any other". In his evidence and in the courtroom the Applicant did present as caring, responsible and gentle. Dr Kasheva also said that based on his 21 years of treating the Applicant, "There is absolutely no likely (sic) of [BFC] re-offending or committing a further offence of a sexual nature involving a child or an adult".
Although the NSW Department responsible for child welfare has had involvement with the Applicant's care of his grand daughters for about 17 years and has not had any concerns about his care of them other than his disqualification under the Act, the evidence indicates that the Department only very rarely had contact with the Applicant over that period and then almost always by interview and not a home visit. However, the Department apparently received no complaints of other adverse reports about the Applicant's care of the children over that period.
Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section [At par 41] and [at par 42]:
"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence".
"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'".
j) Any other information given by the Applicant in relation to the Application
The Applicant has provided considerable material establishing the seriousness of his Post Traumatic Stress Disorder prior to and some time after treatment by Dr Keshava commenced. The Tribunal accepts that the Post Traumatic Stress Disorder was contracted in Vietnam as a result of some of the very traumatic events experienced there and left him suffering serious insomnia, nightmares, lack of appetite and loss of weight. It also contributed to him abusing alcohol and when he first returned from Vietnam on most days he drank until he "blacked out".
He also suffered memory problems and problems holding down employment. After his discharge from the Army in 1968, for 20 years the longest he lasted in one employment was 2 years. After he moved to Bathurst in 1988 he obtained employment as a factory worker and later retired and then received a Total and Permanent Impairment Service Pension.
k) Any other matters that the Children's Guardian considers necessary
The Children's Guardian opposed the Application. There were no other significant matters raised by the Children's Guardian's Counsel.
CONCLUSIONS
On all the evidence the Tribunal has concluded that the Applicant has established that he does not pose a risk to the safety of children. Accordingly, the Application should be granted.
ORDERS
The Orders of the Tribunal therefore are:
1) The Tribunal declares that BFC is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the 3 incest offences found proved by the Supreme Court at Armidale on 17 November 1982.
2) The Children's Guardian must grant BFC a Working with Children check clearance.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
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
Decision last updated: 08 July 2014
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