BFT v NSW Office of Children's Guardian - [2014] NSWCATAD 159

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: BFT v NSW Office of Children's Guardian [2014] NSWCATAD 159
Hearing dates: 19 May 2014
Decision date: 30 September 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: L. Goodchild, Senior Member
Decision:
1.Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act2012 in respect of the offence of rape, of which he was convicted on 7 November 1978.
2.Pursuant to s.28(6) of the Child Protection (Working with Children) Act2012, the Children's guardian is to grant the Applicant with a working with children clearance.

Catchwords: Working With Children clearance- Disqualifying Conviction- Enabling Order- presumed to be at risk to children- whether applicant has proven to the contrary
Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Child Protection (Prohibited Employment) Act 1998 (repealed)
Administrative Decisions Tribunal Act 1997
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111
YG & GG v Minister for Community Services
Category: Principal judgment
Parties: BFT (Applicant)
Children's Guardian (Respondent)
Representation: Counsel
Mr Batley (Applicant)
Ms Lucy (Respondent)
Coffs Coast Family Law (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 1410122
Publication restriction: s.64 Civil and Administrative Tribunal Act 2013

reasons for decision

INTRODUCTION

The Applicant, BFT, made an application under s.28 of the ChildProtection(WorkingwithChildren)Act2012 (the Act), for an enabling order that he not be treated as a "disqualified person" for the purposes of that Act and be granted a clearance to work with children. The Applicant is a "disqualified person" by reason of his conviction in November 1978 of rape. He was sentenced to 6 years imprisonment.

The Applicant is, with his wife, a foster carer. They currently have 9 children in their full-time care. The children are their grandchildren.

As required, the Applicant made an application to the respondent NSW Children's Guardian, seeking clearance under s.13 of the Act.

On 18 February 2014, the Respondent determined not to grant the Applicant with a clearance as a result of his 1978 conviction.

BFT's application was heard by me on 19 May 2014. The Applicant had sought by way of an application pursuant to the GovernmentInformation(PublicAccess)Act2009, material from the Department of Family and Community Services (DFACS). At the time of hearing, that material had not become available. I made orders allowing for the production of that material and the filing of any further written submissions from the parties in respect of that material. The parties agreed between themselves to a timetable for the filing of further written submissions. The Tribunal received an additional Bundle of Material from the Respondent. I received final written submissions on 19 August 2014.

The Respondent opposed the Applicant's application.

The evidence comprised of:

The application filed on 17 March 2014;

The affidavit of the Applicant sworn 2 April 2014;

The affidavit of the Applicant's wife sworn 25 March 2014;

The affidavit of Christine Drayden-Thompson, psychologist, containing her report dated 31 March 2014;

Exhibits 4-7, comprising bundles of records tendered by the applicant from the Department of Family and Community Services, an application for access to information under the GovernmentInformation(PublicAccess)Act2009, the Second Reading speech on the Child Protection (Working With Children) Bill 2012 of Mr Victor Dominello;

The Respondent's bundle of documents Tabs 1 to 18 and further bundle Tabs 1-3;

Oral evidence and cross-examination of the Applicant, the Applicant's wife, and Ms Drayden-Thomson.

After considering the relevant legislative provisions in the Act, the evidence and the submissions of the parties, I have decided to make the order sought by the Applicant.

THE EVIDENCE

I will now consider the evidence relied upon by the Applicant in support of his application.

In his affidavit, the Applicant says that his prior criminal record does not show any events relating to children. In brief examination in chief, the Applicant gave evidence that he had assumed that the victim of the rape was not a child. He said that he met the victim at a hotel where he was drinking, that the young woman was a non-indigenous woman and she was drinking with him. He said that she was unknown to him.

He says in his affidavit that he was 23 years of age at the time of the offence and that there would have been no more than four years difference in age between the victim and himself. This is also not the case, given the fact that the victim was 16 years of age.

In his affidavit, the Applicant says that in his younger years and up until his 40's he abused alcohol and he "accumulated" a lengthy criminal record. He says that he has turned his life around and for the past 15 years he has had no convictions of any sort. He says that since turning his life around he has ensured that he is a responsible adult and, with his wife, has taken on the care of 13 of their grandchildren. Four of those grandchildren are over 18 and the remaining nine of the grandchildren remain in the day-to-day care of the Applicant and his wife. The applicant states that the children were placed with him and his wife either by way of Family Court Orders or Children's Court Orders.

He says that because of having the grandchildren in his care he has had contact in previous years with workers of the DFACS. He says that he and his wife have had over the years regular assessments by those workers, requiring them to come to the home and also requiring them to interview the children.

The Applicant provided a number of DFACS out of home care placement review assessments with respect to six of those children, undertaken in January 2011. The assessments concern matters such as the placement's stability and permanency, medical and health issues, education and vocational issues, emotional and behavioural development, family relationships, social skills and cultural identity. I do not propose to detail the findings of these placement review assessments. On my reading of those documents no concerns are raised for those children regarding health and medical issues, educational issues or emotional development and cultural identity. These placement reviews undertaken in 2011 do not raise any risk of harm with respect to those children.

One issue that is raised by these reviews is a purported difficulty by the Department of engaging with the family. The assessment writer states that engaging with the family is difficult because of trust issues, which the assessor says is understandable given "past experiences they have had". It is not entirely clear to what these "past experiences" refer. The assessor opines that to engage with the family, a relationship built on trust needs to be established.

The DFACS in 2008 undertook a supported care assessment in respect of one of the children, who at the time was four or five. The Applicant and his wife were assessed as providing the child with a stable supportive placement with them and the other siblings. The Applicant and his wife were assessed as providing a stable safe and loving environment where all of the child's needs were being met. The assessment notes that the child has the support of her paternal grandparents and still maintains a strong bond with her other siblings that were in this placement prior to her and her others three siblings being placed there. The assessment identifies the Applicant and his wife as providing for the protective needs of the children and for the spiritual and cultural needs of the children. The assessment identifies the applicant and his wife as ensuring the child attended school and attended the local doctor.

A Children's Court clinic report was undertaken in November 2008 with respect to 3 children. This report was required to address seven issues, including the ability of the Applicant and his wife to provide for the ongoing needs of the children, the capacity of the Applicant and his wife to understand the effects of domestic violence on the children, and the capacity of the Applicant and his wife to ensure that the children are not exposed to risks associated with adults under the influence of alcohol and drugs.

For the purposes of the report, the report writer Dr Darina Rich visited the home of the Applicant and his wife and observed the children. Dr Rich states as follows: "The applicant is a proud aboriginal man who has full insight into his past and his own described shameful history. 20 years has since passed and the applicant has managed to prove to himself and others that life can be very rewarding without alcohol and drugs. The applicant was clearly trying to amend his past mistakes with his own children by taking good care of his grandchildren. He takes this role seriously and I do believe he is able to provide a safe and secure home for all of his 12 grandchildren."

It is noted in the report that the Applicant informed Dr Rich that he was unhappy with the visit and unhappy with "continuous checking and control by white people". Dr Rich reports she is confident that the applicant and his wife are able to work with departmental caseworkers. Dr Rich recommended that the assessment and monitoring of the family was to be organised through or in collaboration with aboriginal services where there is less likely to be a high turnover of staff and a deeper understanding of indigenous cultural and social norms.

The Applicant describes the offence as a serious offence. At the time of the offence he was married. He says that his wife has remained a strong support for him throughout that time and since. He says that at the time of the offence he was young and stupid.

He says that he has not been involved in any police matters since his last conviction in 1996 and that since the birth of his grandchildren he has committed himself to remaining incident free and improving himself to be the best person he can. He says that he is mindful of the effect that any police involvement in his life would have on wife, his adult children and his grandchildren.

The Applicant was cross-examined. Counsel for the Respondent cross-examined the Applicant with respect to the records from the DFACS and suggested to him that he had difficulties dealing with the DFACS and dealing with caseworkers DFACS. He denied this. Counsel for the Respondent put to him that he was not very cooperative with the DFACS and not very happy about people coming to talk with him about the children. He denied this.

Counsel for the Respondent suggested to the Applicant that the assessments were undertaken based on conversations with him and his wife. He denied this. It is apparent on the face of some of the assessments that, while some of the assessment were based upon conversations with him and his wife, DFACS workers also spoke to the children at school. Counsel for the Respondent suggested to the Applicant that if there was a problem with the children at school that he was reluctant to tell the DFACS. He denied this.

The Applicant was cross-examined regarding the circumstances of the offence. It became apparent that his memory of the offence was very poor. He says that he was intoxicated at the time. It was put to him that he had committed violent offences in the past, that he had committed offences against women, and that he had committed offences of violence against his wife. He agreed to these propositions - albeit - reluctantly. By his demeanour in the witness box under cross-examination, it was clear that the Applicant was very reluctant to talk about his extensive criminal history. It is apparent that his criminal history occurred during many years of alcohol abuse. The final entry in his criminal history relates to a violent offence against an adult male where machetes and iron bars are used in an assault in which the applicant was a participant. He said that this assault had something to do with "tribal business".

The Applicant stated that there were currently nine children at home from the ages of 5 to 17. He stated that the home had been purchased in 2008 and the payments with respect to the children went to paying off the mortgage on the home. The Applicant stated that they have a 14-seater bus to transport the children around. He said that all the children are attending school and are going well at school. His demeanour and manner of giving evidence with respect to the children in his care indicated that he was proud of his grandchildren and proud of the support that he and his wife were providing for them.

He says that when his eldest granddaughter was born, that is when he ceased drinking and that is when his criminal behaviour effectively ceased. He said he is not employed because of ill health. He says he and his wife are authorised foster carers being authorised sometime around 2001 to 2002. He says that the DFACS know about his criminal history and have known about it for quite a period of time. He said that if he is not granted the exemption either the children would be removed from his care or he would not be able to live in the home.

An affidavit from the wife of the Applicant was relied upon and she was cross-examined. She stated that the Applicant and her have been married 42 years and that they were married when her husband committed the crime of rape in 1978. She says that she stood by him. She confirmed that they have children and grandchildren. She stated in her affidavit that the Applicant was a very changed person from what he was in 1978. She says he is a caring husband, father, grandfather and great-grandfather and that she has seen him interact with the children in an appropriate manner. She says that at no time in the years since the children have been placed with her and her husband has there been any reason by the DFACS to question their care of the children. She confirmed that in 2008 she and her husband purchased their home.

In cross-examination, when it was put to her that it was hard to look after nine grandchildren without assistance she said "no", that they were "in a routine". She confirmed that the DFACS caseworkers attend the home about twice a year for the purpose of assessments. She stated that she wanted the DFACS involvement in the lives of the children as least as possible. When it was put to her that she had trouble trusting the DFACS she said "not now but that was then". She denied that she would be reluctant to go to DFACS if there were problems. She said some of them can assist her. She agreed that she was very loyal to her husband.

Counsel for the respondent took the Applicant's wife through the Applicant's criminal history containing the history of convictions of domestic violence that the Applicant had perpetrated on her over many years. She agreed that he had assaulted her. She stated that he would never hit his children but he had hit her. Her evidence was that most of the time the children were protected from the impact of the domestic violence. She said that he has not been drinking over the last 15 years and he has not been violent over the last 15 years and she said there was no domestic violence ongoing in the relationship between her and her husband. She said that if he had been violent to her, reports would be available. In support of that statement, she referred to the past occasions when she "had enough and ... she took him to Court".

The Applicant's wife stated, with respect to caring for the children, that it was shared between him and her taking the children to sport and taking the children to school. She gave evidence as to the trauma the children were suffering when they initially came into their care and that it had taken some time for her and the applicant to build the children up again. She spoke proudly of her grandchildren attending school and receiving a good education.

The Applicant's wife was a reluctant witness. She was timid and she was, in some respects, an ally to her husband. Her behaviour in remaining loyal to her husband over many years of violence, and of course the index offence, is remarkable. However, on balance and in light of the clear evidence of complaint made by the wife against her husband over the preceding years, I was satisfied that if there had been any ongoing violence or abuse towards her or abuse to the grand children, she would seek assistance.

The Applicant relied upon a 4-page report prepared by Christine Drayden-Thompson, forensic psychologist. An Aboriginal Medical Service Psychologist referred the Applicant to her. Ms Drayden-Thompson noted in her report that the applicant previously knew her when he was an in-mate at the Correctional Centre in the mid 1990's. Her stated experience was as a psychologist working for 21 years in the correctional centre undertaking assessments, treatment, reports for mates for the parole board and for courts. At the time of hearing she was engaged in private practice in the area.

Her sources of information for the purposes of the report were an interview with the Applicant and with his wife (jointly and separately) and consultation with "members of the local community".

Ms Drayden-Thompson assessed the Applicant as a low risk of re-offending. She states in her report that the Applicant agreed that his behaviour was abhorrent. She says that he made no excuse for the domestic violence or any of his offences and said that he recognised that alcohol use was a problem he needed to address. She reports that the Applicant has said to her that unfortunately it took him until his early 40s to realise this - around 1996 - and he stated to her that he decided when arrested for the last offence he ever committed that he would never drink again and has not.

The Applicant's wife reported to Ms Drayden-Thompson that she and her husband have been together for 43 years and that, since he was released 15 years ago, she has been content and happy due to his cessation of alcohol use. The psychologist reports that the wife stated that without the major change in the Applicant she would not have stayed with him and that it is only with his support that she has been able to cope with the care of the 13 grandchildren.

The psychologist reports that the functioning of the children is "well above average for children in care". The source of that knowledge was unclear and little can be said of the inherent comparison to other children. However, the psychologist states that all of the children are doing exceptionally well at school, some in a leadership program with a teacher traineeship and with the possibility of travel to the United States next year. The psychologist reports that the applicant's wife has a code for the girls. Such that if they are in trouble they can phone and say the code, which alerts her as to the nature of the problem and the help that they require.

The psychologist reports the Applicant's wife recalling an event where one of the girls asked the Applicant for advice about a friend who was being molested and requesting that the family take that girl into the home. The psychologist states that that is indicative of significant respect and trust for the grandparents. It was reported that the children were very distressed that the applicant was unable to be at home and that the grandmother was coping by herself.

The psychologist undertook a historical clinical risk management assessment, being a violence risk assessment scheme. The Applicant's score according to the psychologist indicated that he was overall a low risk of committing a violence offence. The psychologist also undertook a static 99-R assessment of risk of sexual offending. The Applicant's reported score was a 2 on release in 1999 which placed him in the low to moderate risk category in 1999. The psychologist opined that as it had now been 15 years since his release and without reoffending, he was in the low risk category of risk of sexual offending.

In cross-examination, the psychologist stated that she had spoken to parole, to the Chief Regional Psychologist and to members of the aboriginal community and welfare officer at the correctional centre. She said that the Applicant has been observed to not drink alcohol.

The Respondent did not have the Applicant assessed. The Respondent did not challenge either the Applicant or his wife in cross-examination regarding matters in the report of the psychologist. The Respondent identified a number of weaknesses in the report of the psychologist, specifically where the report writer has consulted with members of the community and included statements in the report regarding the Applicant's standing in the community.

I agree with Respondent. It is difficult to put any weight on statements of such generality and when they are given no context. The Respondent says that the report is based on hearsay and for that reason should be given little weight. I do not propose to discount the weight of the report as a whole. The psychologist undertook interviews with the Applicant and his wife for the purposes of the report. She undertook an actuarial risk assessment for sex offenders by using a common and recognised sex offender risk assessment. The report is properly a matter that I will take into account for the purposes of my determination.

The Respondent relied upon a bundle of documents, which included the Applicant's criminal history.

The index offence was a conviction for the rape of a 16-year-old girl. The Applicant was convicted on 7 November 1978 and sentenced to 6 years imprisonment.

The material that identified the index offence was to say the least - scant. It was confined to a crime information report, which identified the victim as unemployed and 16 years of age. It disclosed the circumstances of the offence as the victim with three other men drinking at a hotel and then leaving to go to a party. The victim was taken to a house and according to the crime information report, upon the production of a knife, yielded to advances made by both the Applicant and other men and they had sexual intercourse with her. The facts upon which the Applicant was convicted were not available. The Respondent produced no other information with respect to the offence. However, the Applicant admitted the offences on his criminal record. The index offence is an offence of utmost seriousness involving the threat of violence to a young girl.

The Respondent relied upon material produced by Corrective Services, which disclosed a number of assaults on the Applicant's wife from 1990 up until 1994. The Applicant's criminal history also contains offences of dishonesty where the Applicant pleaded guilty to dealing with cheques from a local organisation of which he was a member.

A document produced by the Corrective Services from 1994 discloses an interview with the Applicant when he was on a good behaviour bond. It is reported that the Applicant stated that he had undergone a significant personal change, achieving greater personal conviction to show that he has "metamorphosised from the applicant offender to the applicant law abiding citizen". This interview notes that the Applicant stated that he had changed physically and had not had any alcohol since some months previously. Further this document also notes that the Applicant readily admits that the crimes were his fault, that if he could turn back time he would not have committed them and that he is remorseful. This document notes that the Applicant said to the report writer that he has learnt from the experience and is committed to changing his lifestyle for the better.

The final entry on the Applicant's criminal history relates to a malicious wounding in 1996. He was sentenced by Ducker J in the District Court of New South Wales to 5 years and 6 months with a minimum term of 3 years and 6 months for the offence. A parole report review undertaken in June of 1999 states the following: "the applicant has reached an important crossroad in his life. After approximately 40 years of a lifestyle characterised by violence and stand over tactics his time in gaol and the numerous educative courses he has undertaken give him the option of a peaceful existence ... many of the factors that surround his previous offences are now changed. The (applicant) no longer consumes alcohol reducing the likelihood of volatile outbursts and he has lost some of the aggressiveness noted in earlier times." This is a document that was written on 17 May 1999 by a probation and parole officer supporting the Applicant's release to parole. The progress notes produced by the Department note the Applicant admitting his crime was wrong and claiming to have changed.

At the close of the hearing on 19 May 2014, orders were made for further written submissions after documents that had been requested by the Applicant from the DFACS were produced.

Received by the Tribunal from the Respondent on 5 June 2014 was a supplementary tender bundle of 299 pages and further submissions. Included in that tender bundle was correspondence dated 23 May 2014 from Peter Freeman, Senior Project Officer, Information Exchange Department of Family and Community Services to Louise Coe, Director Working With Children Check Operations Office of the Children's Guardian. By this correspondence the DFACS confirms that should the Applicant be unsuccessful in his application the care arrangements for the children would remain unchanged. It appeared that the current arrangements were that Applicant could not reside in the home and his only contact with the children would be under his wife's supervision. The Applicant comes to the house every day to assist his wife with the care of the children but does not reside in the home.

The correspondence notes that the Applicant and his wife have parental responsibility for the children and that the only involvement of the DFAC will be by way of periodic review and financial assistance.

The respondent's supplementary submissions refer to the additional tender bundle and identify additional matters noted at 6(a)-(h) as bearing upon the risk, which the Applicant poses to the safety of children. I have had regard to that further additional bundle and the matters raised in the Respondent's supplementary submissions. The first allegation (a) refers to a record from February 2003, which reproduces a report made by the Family Court given a file number in 2002 alleging that "the grandparents routinely hit him and that the grandfather lifts him off the ground by his ears". This appears to be an allegation made in the context of family law proceedings running in Newcastle from 2002. There is no evidence that there was any investigation of these allegations.

Allegation 6(b) and (c) relate to the alleged lack of medical care for the children in 2003, primarily dental hygiene. Nothing is provided as to what further investigation was undertaken. It is noted that a dental clinic is involved. This allegation has little probative value for the purposes of my determination.

Allegation (d) is a helpline report to the DFACS in January 2007 alleging one of the children was "treated dreadful". There is no evidence of any follow-up of this helpline report. Allegations (e) to (h) relate to the Applicant's daughter and events that occurred in 1988. There is an allegation that the daughter was "physically beaten". The Applicant and his wife are reported to admit physically this disciplining the child when she misbehaves and does not obey their instructions. The report states that "the consequences of continuing to beat the child had been explained to both parents and it appears that things have stopped". The case was dismissed in September 1988.

RELEVANT LEGISLATIVE PROVISIONS

The ChildProtection(WorkingwithChildren)Act2012, the Act is a legislative scheme regulating those persons who can engage in, or continue to engage in child-related work. The Act came into force on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme in Part 7 of the CommissionforChildrenandYoungPeopleAct1998: see cl 6 of Schedule 4.2 of the Act.

Part 1 of the Act contains provisions in relation to the commencement of the Act, its objects and definitions of terms used within the Act.

The objects of the Act are set out in s.3 as follows:

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 of the Act 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.

The word "children" is defined in s.5(1) to mean persons under the age of 18 years. Consequently the word "child" has the same meaning.

Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss.6, 8 and 9.

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".

This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

Section 9 contains a similar prohibition on an employer. Employing or continuing to employ a person in child-related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

Section 13 provides for applications to be made to the Children's Guardian for a Working With Children Check Clearance.

Part 3 of the Act deals with working with children clearances.

Subsection 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a Working With Children Check Clearance to 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".

Para 1(1)(f) of Schedule 2 of the Act specifies the offence of common law rape. There is no dispute that the offence, of which the applicant was convicted, in 1978, falls within this description.

Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working With Children Check Clearance for BFT.

APPLICATIONS FOR AN ENABLING ORDER

Section 28 deals with "disqualified persons". That section is in the following terms:

(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.

Section 30 of the Act provides as follows:

(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,

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

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

(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.

CONSIDERATION

The Tribunal's jurisdiction under s.28 of the Act is protective and not punitive in nature: see CommissionerforChildrenandYoungPeoplevFZ [2011] NSWCA 111 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. The Tribunal's review jurisdiction, under s.27, is similarly protective in nature.

In this application, the issue for determination is whether, having regard to the matters in s.30(1) of the Act and the relevant facts, the applicant has proven on the balance of probabilities, that he does not pose a risk to children.

In regard to the matters the Tribunal is required to consider, as set out in s.30(1), I find as follows:

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

There is no doubt the offence for which the Applicant was convicted was an offence of utmost seriousness. The material relied upon by the Respondent document the offence of rape of a girl of 16, by the threat of a knife and the involvement of two other men. Whilst the material with regard to the offence is scant, the Applicant accepted the serious nature of the offence. He was convicted and imprisoned for 6 years.

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

The offence is said to have occurred on 7 November 1978 i.e. 38 years ago.

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

The Applicant was 23 at the time the offence was committed.

(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 16 years of age when the offence was committed.

(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 seven years younger than the Applicant. The victim was a child at the time of the offence. The Applicant states he did not know the victim until he had met her on the night of the offence when they were drinking at the hotel.

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

The Applicant says that he did not know that the victim was 16 years of age. He says that he assumed she was an adult as they were drinking together in the hotel.

(g) the person's present age -

The Applicant is now 60 years of age.

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

The Applicant's total criminal record shows a number of serious violent offences and a number of dishonesty offences. The index offence occurred 36 years ago. Following this offence, for the next 18 years, the applicant engaged in criminal conduct involving serious violence and dishonesty. There is no other conviction on the applicant's record involving sexual assault.

Since 1996 there is no evidence that the Applicant has engaged in any criminal conduct. The evidence discloses that during his incarceration in the late 1990s the applicant undertook counselling and rehabilitation and he gave up drinking alcohol. The Applicant's evidence is that his criminal behaviour from his youth until his 40s occurred in the context of an addiction to alcohol.

The Applicant says that after he gave up drinking, he established his own recycling business in 2004, which he then gave up in 2013 due to ill-health. The Applicant says that since around 2000 he and his wife have had parental responsibility for 13 of their grandchildren.

The Applicant says that since giving up drinking and since about his 40s, he has turned his life around he has ensured he is a responsible adult and he has tried to be a role model for his grandchildren.

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

The onus is on the Applicant to establish that he does not pose a risk to the safety of children. Other than the index offence, there is no evidence that the applicant has engaged in any criminal conduct towards a child. However, the Applicant's criminal history discloses many years of serious violence in the context of a domestic situation. The impact on any child of either sexual abuse or domestic violence would be very serious and would have long-term consequences.

The Applicant says that there is no likelihood of a repetition of the offence. He says this quite confidently because he sees his criminal behaviour in the context of many years of addiction to alcohol. He says he has successfully refrained from drinking alcohol for the last 18 years. He has not committed any criminal offences since 1996. His wife similarly agrees that there is no likelihood of any repetition of the index offence. Her evidence is that the man that committed the offence in 1978 is not the man that comes before the tribunal today.

I am satisfied that the Applicant has abstained from alcohol for the last 18 years.

I have referred to the evidence of the psychologist earlier in these reasons. The assessment from the psychologist is that the applicant is a low risk of reoffending. Ms Drayden-Thompson was a credible witness and I find, for the reason identified earlier, that her conclusions are reliable.

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

For the last 18 years, the Applicant has been sober. He has the support of his wife. The Applicant and his wife have been foster carers for a number of years and orders have been made for them to hold parental responsibility for 13 of their grandchildren. The evidence discloses that there has been periodic review and assessment by the DFACS of the placement of some of the children in the Applicant's care. The material contained in the DFAC's records on balance support the applicant's case that he does not pose a risk to the safety of children.

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

The Children's Guardian opposed the application. The Children's Guardian did not raise any other relevant matters.

The Office of the Children's Guardian was established under the ChildrenandYoungPersons(CareandProtection)Act1998 to promote the interests and rights of children and young people living in out of home care and to also regulate child safe organisations and services. Section 181 of the ChildrenandYoungPersons(CareandProtection)Act1998 identifies the principal functions of the Children's Guardian. Section 181 is in the following terms:

(1)The principal functions of the Children's Guardian are as follows:

(a) to exercise functions relating to persons engaged in child-related work, including working with children check clearances, under the Child Protection (Working with Children) Act 2012 ,

(b) to promote the best interests of all children and young persons in out-of-home care,

(c) to ensure that the rights of all children and young persons in out-of-home care are safeguarded and promoted,

(d) to establish a register for the purpose of the authorisation of individuals as authorised carers, and to maintain that register, in accordance with the regulations,

(e) to accredit designated agencies and to monitor their responsibilities under this Act and the regulations,

(f) to register organisations that provide or arrange voluntary out-of-home care and to monitor their responsibilities under this Act and the regulations,

(g) to exercise functions relating to the employment of children, including the making and revocation of exemptions from the requirement to hold an employer's authority,

(h) to develop and administer a voluntary accreditation scheme for persons working with persons who have committed sexual offences against children,

(i) to develop and administer a voluntary accreditation scheme for programs for persons who have committed sexual offences against children,

(j) to encourage organisations to develop their capacity to be safe for children as referred to in s.38 of the Child Protection (Working with Children) Act 2012 .

I would recommend with future applications - when determining what if any other matters it considers necessary, and to promote the best interests of all children in out of home care and to ensure that the rights of all children and young people in out of home care are safeguarded and promoted - the Children's Guardian may consider seeking the views of the DFACS in cases such as this where the applicant is a foster carer who has at the time of the application, 9 children in his care and the evidence shows that parental responsibility orders have been made in favour of the applicant.

CONCLUSIONS AND ORDERS

Subsection 28(7) of the Act presumes that the applicant does pose a risk to children.

The meaning of the word "risk" was considered by Young CJ (in Equity) in CommissionforChildrenandYoungPeoplevV [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of s.9(4) of the former ChildProtection(ProhibitedEmployment)Act1998. At [42], His Honour said:

42... [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 word "risk" with the words that follow, namely, "to the safety of children" ...

These remarks of His Honour have continued to be cited with approval, in interpreting the meaning of "risk" as it appeared in s.33J(1) of the repealed Part 7 of the CommissionforChildrenandYoungPeopleAct1998. See ADVvCommissionforChildrenandYoungPeople [2012] NSWADT 8.

As expressed in BYRvChildren'sGuardian [2013] NSWADT 310, the remarks of His Honour at [42] equally apply to the meaning of "risk" as it appears in s.28 of the Act.

The wider issue for determination in these proceedings is whether or not there is an unacceptable risk to children. The assessment of that risk requires an objective consideration of all of the circumstances of the case in the context of the relevant legislative framework.

If the sole consideration in applications such as these was the serious nature of the index offence, then there is little doubt that the Applicant would be unsuccessful. The seriousness of the index offence is but one consideration, and regard must be had to the objects of the Act, the paramount considerations, the mandatory matters and the circumstances of the case.

On all of the evidence, I conclude that the Applicant has established that he does not pose a risk to the safety of children. Accordingly, the application should be granted.

ORDER

1. Declare that the applicant not be treated as a disqualified person for the purposes of the ChildProtection(WorkingwithChildren)Act2012 in respect of the offence of rape, of which he was convicted on 7 November 1978.

2. Pursuant to s.28(6) of the ChildProtection(WorkingwithChildren)Act2012, the Children's Guardian is to grant the applicant with a working with children clearance.

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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

14 October 2014 - typographical error

Amended paragraphs: Coversheet, paragraph 1, 43, Order

Decision last updated: 14 October 2014

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Citations

BFT v NSW Office of Children's Guardian [2014] NSWCATAD 159

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

4

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Young People v V [2002] NSWSC 949

ADV v Commission for Children and Young People [2012] NSWADT 8

Medium Neutral Citation:	BFT v NSW Office of Children's Guardian [2014] NSWCATAD 159
Hearing dates:	19 May 2014
Decision date:	30 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L. Goodchild, Senior Member
Decision:	1.Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act2012 in respect of the offence of rape, of which he was convicted on 7 November 1978. 2.Pursuant to s.28(6) of the Child Protection (Working with Children) Act2012, the Children's guardian is to grant the Applicant with a working with children clearance.
Catchwords:	Working With Children clearance- Disqualifying Conviction- Enabling Order- presumed to be at risk to children- whether applicant has proven to the contrary
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Administrative Decisions Tribunal Act 1997
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 YG & GG v Minister for Community Services
Category:	Principal judgment
Parties:	BFT (Applicant) Children's Guardian (Respondent)
Representation:	Counsel Mr Batley (Applicant) Ms Lucy (Respondent) Coffs Coast Family Law (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410122
Publication restriction:	s.64 Civil and Administrative Tribunal Act 2013