BFU v Children's Guardian

[2015] NSWCATAD 6

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BFU v Children’s Guardian [2015] NSWCATAD 6
Hearing dates:	25 June, 7 August and 8 September 2014
Date of orders:	15 January 2015
Decision date:	15 January 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The applicant’s applicant for an enabling order is refused
Catchwords:	ADMINISTRATIVE LAW – child protection –working with children check clearance – application for an enabling order – applicant a disqualified person by reason of his convictions, in 2006, of one count of possessing child pornography and one count of aggravated indecent assault of a person under the age of 16 years – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BFU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: R Lee (Respondent) Solicitors: BFU (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410132
Publication restriction:	Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of the any other person that would identify the name of the applicant are not to be published or broadcasted without the leave of the Tribunal

reasons for decision

1. The applicant, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a ‘disqualified person’ so that he can be granted a clearance to recommence doing paid and voluntary work as an athletics coach.

2. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of the any other person that would identify the name of the applicant are not to be published or broadcasted without the leave of the Tribunal. For this purpose the pseudonym BFU has been used for the applicant’s name.

3. The applicant is a ‘disqualified person’ by reason of his conviction of two offences, in 2006, that fall within clause (1)(e) and (n) of Schedule 2 of the Act. These convictions were as follows:

1. On 5 May 2006, the applicant was convicted of one count of possess child pornography pursuant to subsection 91H(3) of the Crimes Act 1900. In sentencing the applicant the Court made an order, under section 9 of the Crimes (Sentencing Procedure) Act 1999, directing the applicant to enter into a good behaviour bond for three years under the supervision of the NSW Probation and Parole Board;

2. On 25 October 2006, the applicant was convicted of one count of aggravated indecent assault of a person under the age of 16 years pursuant to subsection 61M(1) of the Crimes Act 1900. In sentencing the applicant for this offence the Court also made an order, under section 9, directing the applicant to enter a good behaviour bond for three years.

4. The offences of which the applicant was charged came to light during the course of a police investigation into the violent death of his wife in March 2005.

5. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application for an enabling order under section 28 of the Act. The applicant’s application was heard on 25 June, 7 August and 8 September 2014. He has been unrepresented throughout these proceedings, where a considerable amount of material has been placed before the Tribunal.

6. At the conclusion of the hearing, I reserved my decision. I have now considered all the material that is before the Tribunal and for the reasons set out below, I have not accepted many of the contentions of the respondent. However, on the material before the Tribunal, I have found that I am unable to find that the applicant has discharged the onus placed on him, under subsection 28(7) of the Act, to rebut the statutory presumption that he poses a risk to the safety of children by reason of the above disqualifying convictions.

7. I make this finding primarily on the basis of the applicant’s failure to satisfactorily establish he has the necessary insight into his offending conduct, especially in regard to the child pornography offence. While he has at all times stated he has no interest in child pornography, in my view a satisfactory explanation of his understanding about his offending conduct has not been provided. This may be due to not having undergone any specific offence related counselling. Furthermore, there is no explanation of current measures (dynamic issues/factors) that are in place to minimise his risk of reoffending in regard to accessing child pornography.

8. With offence specific counselling and a current risk assessment report, from an appropriately qualified professional, the applicant may be able to establish this. His failure to do so in this application was clearly due to his past experiences and perhaps a failure to fully understand the nature of these proceedings.

The evidence

9. At the hearing, the applicant relied on the following material:

1. A brief psychological report of Greg Sorrell, dated 19 May 2014;

2. A statement of the applicant setting out his involvement with Athletics and the grounds on which he has made his application;

3. A small folder of documents in response to the material filed by the respondent ;

4. A short letter of support, dated 24 July 2014, from the applicant’s daughter.

10. The respondent relied on the material contained in four bundles of documents that were responses to enquiries made by the respondent in regard to the applicant. This included responses from:

• NSW Police

• The Local Court

• Department of Family and Community Services

• The Children’s Court concerning an application by the Department of Family and Community Services following the removal of the applicant’s two year old twin boys from his care. The boys were removed after the applicant was charged, in 2005, with the abovementioned offences. However, they were returned some two months later and have remained in the applicant’s care since that time

• State Coroner’s Office concerning the 2011 coronial enquiry into the 2005 death of the applicant’s wife

• Department of Corrective Services

• The Schools and Organisations where the applicant had been an athletics coach

11. The applicant gave oral evidence at the hearing on 7 August and was cross-examined by Mr Lee, counsel for the respondent. The applicant’s daughter gave oral evidence on 8 September and was cross-examined by Mr Lee that day. The respondent had requested Mr Sorrell to be made available for cross-examination. The applicant arranged for this to occur and informed Mr Lee of the time he was available. However, Mr Lee did not seek to interpose Mr Sorrell’s cross-examination during his cross-examination of the applicant and he was not available at another time.

12. The respondent opposed the making of the order sought.

The working with children legislative scheme

13. The Child Protection (Working with Children) Act 2012 (the Act) makes provision for the regulation of those persons who can engage in, or continue to engage in child-related work. Its objects are:

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

14. 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 the Act.

15. The word ‘children’ is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word ‘child’ has the same meaning.

16. Subsection 8(1) of the Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children’s Guardian for the relevant working with children check clearance. A contravention of this provision is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

17. Subsection 9(1) 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.

18. The term ‘child-relate work’ is broadly defined in section 6 of the Act. Included is ‘clubs or other bodies providing services for children’, which are described in clause 7 of the Child Protection (Working with Children) Regulation 2013 as including:

7 Clubs or other bodies providing services for children

(1) Work for a club, association, movement, society or other body of a …, sporting … nature that involves providing programs or services primarily for children is child-related work.

(2) Without limiting subclause (1), work as a coach or as a team manager, or an assistant coach or assistant team manager, for a sport or activity for children is child-related work.

(3) However, the work is not child-related work if the work is work as a referee, umpire, linesperson or otherwise as a sporting official or a groundsperson, and the work does not ordinarily involve contact with children for extended periods without other adults being present.

19. It is not for the Tribunal to determine whether the work the applicant seeks to undertake is child related.

20. As I have mentioned, subsection 18(1) provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been ‘convicted’ of an offence falling within Schedule 2 of the Act. The term ‘conviction’ is defined in subsection 5(1) to include ‘a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.’

21. Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time (see section 23 of the Act in regard to the grounds on which a clearance can be cancelled or suspended).

22. As I have mentioned, subsection 28(1) of the Act makes provision for a ‘disqualified person’ to make an application to the Tribunal for an enabling order.

23. Where such an application is made section 28 also provides the following:

28 Orders relating to disqualified and ineligible persons

(1) …

…

(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 … 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) …

24. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘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.’

25. The former Administrative Decisions Tribunal construed the meaning of ‘risk’, as it appeared in subsection 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word ‘risk’, has a similar meaning in the current Act.

26. As noted above, in this application there is a presumption that the applicant poses a risk to the safety of children because of his disqualifying convictions and he bears the onus to establish the contrary (i.e. as at the date of hearing he no longer poses a real and appreciable risk to the safety of children). In determining whether the applicant has discharged his onus the Tribunal is required to have regard to the matters set out in subsection 30(1) of the Act. That subsection provides:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

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

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

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

(g) the person’s present age,

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

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

(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) …

27. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on the applicant in regard to the disqualifying offences of which he was convicted. The object of the Act is to eliminate possible risks to the safety of children.

Consideration

28. As I have noted, the applicant’s disqualifying offences were identified by police in the course of their investigation into the violent attack of the applicant’s wife, at her home, in March 2005. On the day in question, the applicant discovered his wife lying in the driveway of their home with severe head trauma. She was conveyed to the local hospital and treated for the injuries. She died in hospital some five days later.

29. The person responsible for her death has never been ascertained. In 2011, a coronial enquiry into the death of the applicant’s wife was held. The applicant was identified as a person of interest during the course of the coronial inquiry. The applicant did not give any evidence in the coronial inquiry.

30. The findings of the Coroner were that the applicant’s wife had died, in hospital, in March 2005, due to multiple blunt force head injuries inflicted at her home by an unidentified person or persons some five days earlier. The Coroner recommended that the Commissioner of Police offer a substantial reward for information leading to the identification of the assailants of the applicant’s wife and undertake a publicity campaign to identify an unknown person heard on the 000 call that was made on the day she was injured.

31. Having regard to the findings of the Coroner, the circumstances of the death of the applicant’s wife have little (if any) bearing on this application. The respondent did not contend otherwise. However, the respondent did rely on remarks made in written statements, prepared by police, as part of their investigation into the death of the applicant’s wife. The written statements included statements from the applicant’s daughter, the applicant’s stepdaughters (i.e. the two daughters of his wife from her first marriage), one of whom was the victim of the aggravated indecent assault charge and conviction, and a number of friends of the applicant’s wife as well as her general practitioner.

32. I have dealt with this material below in the context of the subsection 30(1) considerations the Tribunal is required to take into account.

(a)    seriousness of the disqualifying offence

33. It is convenient to deal with the disqualifying offences separately.

Possess child pornography

34. As I have noted, the applicant was convicted of an offence under section 91H of the Crimes Act. That section relevantly provides as follows:

91H Production, dissemination or possession of child abuse material

(1) In this section:

….

possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

…

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty: imprisonment for 10 years

35. A ‘child’ is defined in section 91FA of the Crimes Act 1900 to mean a person who is under the age of 16 years and the word ‘material’ is defined in the same section to include any computer image or other depiction. Subsection 308(2) (a) of the Crimes Act defines the ‘possession or control of data’ to include the possession of a computer or data storage device holding or containing data.

36. The phrase ‘child abuse material’ is defined in section 91FB of the Crimes Act to mean as follows:

91FB Child abuse material—meaning

(1) In this Division:

child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b) the literary, artistic or educational merit (if any) of the material, and

(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d) the general character of the material (including whether it is of a medical, legal or scientific character).

(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

(4) The private parts of a person are:

(a) a person’s genital area or anal area, or

(b) the breasts of a female person.

37. The 2005 Police Facts sheet in regard to the applicant’s offending conduct states that ten days after the applicant’s wife was found, the police together with the applicant participated in a ‘video run around’ at the applicant’s home. This was done with the applicant’s consent and the police administered the usual caution to the applicant prior to the ‘run around.’

38. During the ‘run around’, the applicant identified where his computers were located and he consented to police seizing his two computer hard drives so as to assist in their investigation. As a result of the examination of the two hard drives that were seized, police from the Child Exploitation Internet Unit discovered that one of the hard drives contained ‘child pornography’. The images found on that hard drive were stated to have included depictions of young females posing in provocative positions whilst displaying their breasts and genitals either partially or fully. The images depicting the young females were said to appear to be under the age of 16 years.

39. In his oral evidence before the Tribunal, the applicant said the offending photos were photos of young models. He said he did not understand that the photos were illegal at the time, but acknowledged that they were photos of teenage models. He explained that they were images of a photo shoot of a model who, started fully clothed and then began taking off her clothes. He said he downloaded the photos from a modelling website and had not downloaded them for any sexual gratification.

40. Copies of the photographs that were the subject of the applicant’s conviction were not before the Tribunal. The respondent pointed to a file note, dated in July 2005, in the material provided by the Department of Family and Community Services (the Department). The file note is that of a child protection case worker who noted that she had been shown images, which police advised were found on the ‘two’ computers seized from the applicant’s home. The descriptions given by the case worker goes beyond that contained in the Police Facts sheet. In his oral evidence, the applicant said that no such images, as described by the case worker, were on his computer. He also said the Children’s Court rejected this evidence of the case worker.

41. In the absence of any of the alleged images being before the Tribunal and on the basis of what is stated in the Police Fact sheet and the oral evidence of the applicant, I have placed no weight on the notes of the child protection case worker.

42. The applicant’s conviction for possessing child pornography is nevertheless serious. However, I find it falls towards the lower end of seriousness for an offence of this kind. The question is whether the applicant, who acknowledges that he watches pornography, has any real insight into his offending conduct concerning possessing child pornography of that kind. I have dealt with this in more detail below.

Aggravated indecent assault

43. The offence of aggravated indecent assault was alleged to have occurred sometime between mid-March 2004 and the end of April 2004. The victim of the offending conduct, as I have explained, was the applicant’s 14½ year old stepdaughter. The aggravating factor of the applicant’s conduct was the fact that the victim was his stepdaughter.

44. The Police Facts sheet states that the offence occurred a day before the applicant and his family were due to move into a new home. The applicant’s stepdaughter (the victim) was at home from school that day to help with the packing. There was no-one else at home apart from the victim and the applicant. The applicant had taken photographs of the victim the day before and on the day in question the applicant suggested that he take more photographs of her while she was sitting in a beanbag in the lounge room. It was in the middle of the day. The Police Facts sheet goes on to say that the victim and the applicant had been ‘wrestling and play fighting’ when the applicant left the room and returned with ‘duct tape’. While the victim was lying on the floor and without saying anything, the applicant took the tape and bound the victim’s hands and feet. While her wrists and ankles were bound the applicant helped the victim to her feet. He got her to hold her wrists above her head and hold onto the railing in the lounge room. The applicant took a number of photographs with the victim in this position. At the time the victim was wearing a top with a brassiere underneath. After the applicant had taken the initial photographs, he approached the victim and proceeded to lift up the top she was wearing, exposing her stomach and ‘breasts’. The applicant then took more photographs with the victim’s ‘breasts’ and stomach being exposed. There was a knock on the door - the applicant stopped taking photographs. While he was answering the door the victim undid the duct tape. When the applicant returned, it is alleged that he spoke to her implying that if she told her mother she would not be believed.

45. Included in the respondent’s bundles of documents was a statement of the victim, dated June 2005. The statement was prepared by the police following the death of the victim’s mother and the applicant’s wife. The statement deals with a number of matters relating to her mother, the applicant and their family. It also includes the victim’s recollect of the offending conduct. In regard to the photos the applicant had taken previously, the victim said these were ‘casual photos of me in the house, in normal clothes.’ She explained the applicant had printed one of these and given it to her mother, who kept it in her diary.

46. In regard to the offending conduct, she said the whole incident lasted for about an hour or two. She said she could not remember what she was wearing but it was just ‘normal style clothes’ like she would be wearing any other day. She said she remembered she and the applicant were ‘just wrestling and play-fighting’. She said ‘he didn’t touch me in a bad way or anything when we were wrestling. I did not think there was anything sexual in it or anything like that.’ She explained the applicant was a carpenter and had duct tape (‘this sort of stuff’) at home. She said, at first when her feet and hands were being tied up, she was laughing and giggling. She said that although she was shocked she still trusted him and didn’t think she was going to be attacked or anything like that. She thought it was just a game.

47. She said she was wearing a bra at the time and when he came over and lifted up her the top, she felt really uncomfortable. She said once she had removed the duct tape nothing else happened. She said that when the applicant lifted her shirt up over her breasts, he did not touch her. She said, on the following day or pretty soon thereafter, she checked the applicant’s digital camera for the photos and the pictures of her, but she could not find any having been stored on the camera. She said that nothing further had been said about the events of that day. She said since this particular incident the applicant had not done anything else to her that was inappropriate or sexual in any way.

48. In his oral evidence before the Tribunal, the applicant readily acknowledged that he had tied the victim with duct tape and taken photographs of her. He said the victim had jumped on him and grabbed his leg. He said that he responded by wrestling and play fighting with her. He said that the duct tape was already in the room, but agreed that he did not seek the victim’s permission to tie up her hands and feet. He also acknowledged he had the victim hold up her hands onto the railings. However, he said at all times she had her feet on the floor. He acknowledged he lifted the victim’s woollen jumper over her head. He said he did not realise that she was not wearing a t-shirt under the jumper. He took the photos and told her that if she didn’t stop complaining he would take a photo and send it to her boyfriend. He said that any photos that he took on this day he immediately deleted them from his camera. He denied he said, or inferred that she should not tell her mother about the events of that day.

49. The respondent contends that this offence is serious. The applicant acknowledges that his conduct was entirely inappropriate. He said that he now fully appreciates this to be the case and regrets what he has done. The respondent on the other hand asserts that this is only one of several incidents of inappropriate conduct of this kind by the applicant.

50. In my view, the applicant’s conviction of the offence of aggravated indecent assault of his stepdaughter is a serious offence. However, it is also at the lower end of seriousness of an offence of this kind. This is reflected in the penalty that was imposed.

51. For the reasons set out below, I do not accept the respondent’s contention that this offence is an example of a number of incidents of inappropriate conduct by the applicant. On the contrary, I find that it was an isolated incident.

(b)    period of time since the offence

52. On the information before the Tribunal the offences were each committed about 10 years ago. Whether the applicant had the child pornography on his computer for some time is not clear.

(c)    the age of the applicant at the time of the offence

53. The applicant was approximately 41 years of age at the time of the offences. On the material before the Tribunal, the applicant and his wife formed a relationship sometime around 2000. The applicant had been and continued to be the sole carer of his daughter. The applicant’s wife had three children (including the victim) from her previous marriage. In April 2003, the applicant’s wife gave birth to their twin boys. The applicant and his wife were married in August 2004, which appears to have been after they moved into their new home.

(d)    the age of the victim and any matters relating to the vulnerability of the victim

54. At the time of the indecent assault offence the applicant’s stepdaughter was 14½ years of age. As noted by the respondent, the applicant’s stepdaughter was not only vulnerable because of her age she was also vulnerable as she trusted him because he was her stepfather. The respondent contends that the applicant’s offending conduct included a strategy to avoid detection of his offending conduct. In my view the material before the Tribunal does not go so far.

55. As I have noted, an offence of possessing child pornography relates to images of children that appeared to be under 16 years of age. The exact age of the girls in the images found on the applicant’s computer was not known, but the Police Fact sheet stated they were around 14 years of age.

(e)    the difference in age between the victim and the applicant

56. The difference in age between the applicant and the applicant’s stepdaughter was about 26½ years. In regard to the ages of the children in the child pornography images, the age difference is about the same.

(f)    whether the applicant knew that the victim was a child

57. There is no question that the applicant knew the age of his stepdaughter. In regard to the age of the children in the child pornography images, the applicant appears to have readily acknowledged they were teenagers in that he referred to them as being ‘teenage models’. It was his evidence that he did not know they were under 16 years of age at the time he downloaded them, but accepted this to be the case.

(g)    the applicant’s present age

58. At the time of the hearing, the applicant was approximately 51 years of age.

(h)    the seriousness of the applicant’s overall criminal history and other conduct

59. The only other offence of which the applicant was convicted was a conviction, in February 1980, for smoking a prohibited drug (Indian Hemp). The applicant was placed on probation without conditions for a period of 12 months in regard to that offence. At the time, the applicant was 23 years of age. Other than the two offences of which the applicant was convicted in 2006, the applicant has no other criminal convictions.

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

60. As I have already noted, since his 2006 convictions there have been no further reports of any offences of the kind of which he was convicted in 2006. Nor is there any evidence of such offences having occurred previously.

61. I note, in response to the respondent’s enquiries with the athletics organisations in which the applicant was involved, there was no record of any adverse findings having been alleged or found against the applicant during the time he was coaching his daughter and other children. It is the applicant’s evidence that he ceased being engaged in this activity after the death of his wife and being charged with the disqualifying offences.

62. The respondent’s enquiries of the Department of Human Services and Community Services only identified records relating to the applicant’s twin boys. There is no record of any adverse reports relating to his care of his daughter. In regard to his twin boys, the only records produced were those relating to their removal and return in 2005. There is no further adverse record in regard to the applicant’s care of his boys since that time. In this regard I note that during the time the boys were removed and then returned, the applicant had considerable support from his parents.

63. The respondent nevertheless contends that the applicant’s offending conduct involving his stepdaughter is not an isolated incident. As I have noted, in support of this contention the respondent relied on specified remarks contained in the written statements prepared not long after the death of the applicant’s wife and in the course of the police inquiry into her death. It is the respondent’s contention that the remarks, made by third parties who knew or treated the applicant’s wife evidenced an inappropriate relationship between the applicant and his daughter. The respondent also contends that a subsequent statement of the applicant’s daughter in regard to photos shown to her from the applicant’s computer were indicative of the applicant engaging in grooming behaviour. In my view, both contentions should be rejected.

64. The specific remarks of the third parties in their written statements were put to the applicant during cross examination. In my view the applicant responded truthfully and to the best of his ability. The remarks were primarily a restatement of what the applicant’s wife had said to others about her perception of the relationship between the applicant and his daughter. The applicant readily acknowledged matters of which he had knowledge, but denied he had ever acted inappropriately towards his daughter. He explain that his wife was a very jealous person and particularly jealous of his relationship with his daughter. At the time the applicant and his wife began to live together, the applicant’s daughter was in her early teens. The applicant had sole custody of his daughter since she was five years of age. They had a very close father and daughter relationship and shared a common interest in athletics.

65. That the relationship between the applicant’s wife and his daughter was not without some difficulty/jealousy is supported in other statements prepared for the coronial proceedings. It is also reflected in the statements the applicant’s stepdaughters made to police during their enquiry into their mother’s death. That difficulty/jealousy does not mean that the relationship between the applicant and his daughter was an inappropriate one in the sense relevant to these proceedings.

66. In her written and oral evidence, the applicant’s daughter confirmed that her father had never acted inappropriately towards her. She said she had nothing but fond memories of her childhood and was never harmed in any way by her father. She said she had never seen her father be violent or abusive towards women. She said she found it deeply concerning that the people had suggested he had acted inappropriately towards her, yet at no time had anyone been sufficiently worried about her welfare to raise these matters with her. She explained she was heavily involved in athletics as a child and when she was 10 years old her father became her coach. She said that he coached many other athletes and was highly regarded around the athletics track. She said they spent a lot of time together because of this commitment as it involved at least three nights of the week at training and weekends at competitions. During this time she always found her father to be gracious and charitable and well-liked by all the athletes he coached.

67. The essence of the comments made by the third parties was also put to the applicant’s daughter during cross-examination. She too denied that her father had acted inappropriately towards her in the sense relevant to this application. I also found the applicant’s daughter to be a truthful and frank witness.

68. In regard to the contention of grooming behaviour, I note the statement relied on by the respondent is a statement of the applicant’s stepdaughter dated 2 August 2005. It is apparent from that statement that the police had shown the photos to the applicant’s stepdaughter to ascertain whether she could identify any of the photos as being ones taken during the course of the offending aggravated indecent assault. She did not identify any of the photos as having been taken at that time. However, she did identify some of the photos as being those the applicant had taken previously as set out in her earlier statement. Other than identifying the photographs (some including her younger brother) the applicant’s stepdaughter made no further remarks about them.

69. Again, copies of the photographs were not before the Tribunal. The applicant explained the photos were merely part of the many family photographs he had taken, which were seized by police. That is they were taken out of context.

70. In the circumstances and in the absence of the photographs, which the applicant no longer has and which the respondent did not provide, the contentions put forward by Mr Lee should be rejected. I note no charges were laid against the applicant in regard to the photographs described in that statement. Nor is there any evidence that this statement of the applicant’s stepdaughter was pursued or acted on in any way.

71. The respondent also relied on the report of Dr Allnutt, dated 9 August 2005 and the observations of Mr Maurice A Taylor, a Coronial Information and Support Person, in his statement of 20 September 2007.

72. The report of Dr Allnutt was prepared for the purposes of the Children’s Court proceedings relating to the applicant’s twin boys. As I have noted, In July 2005, after the applicant was charged with the offence involving his stepdaughter and the child pornography offence, the Department of Family and Community Services (the Department) removed the boys from the applicant’s care and commenced proceedings in the Children’s Court.

73. Dr Allnutt was engaged by the Department and did not assess the applicant. In his report Dr Allnutt referred to the description of events as recorded by the statement of the applicant’s stepdaughter and concluded his report by stating the following:

‘It is not possible to provide a definitive opinion on his level of risk in the medium or his rehabilitative needs at this stage.’

74. The Children’s Court dismissed the Department’s application and the boys were returned to the applicant in October 2005, where they have remained.

75. It was the evidence of the applicant that the Children’s Court refused to accept into evidence the report of Dr Allnutt. In my view, while the report has been placed before the Tribunal by the respondent, little weight (if any) can be placed on it. This is supported by the above concluding remarks of Dr Allnutt in his report. It was clearly a preliminary view, without the benefit of assessing the applicant.

74. Mr Taylor’s statement was prepared for the purpose of the coronial inquest into the death of the applicant’s wife. In that statement Mr Taylor described a meeting he had with the applicant, on 16 May 2007, at the Coroner’s Court. The purpose of the meeting was to discuss the applicant’s concerns about the manner in which the police had conducted their investigation into his wife’s death. In his statement, Mr Taylor explained he was also a registered psychologist. After setting out the essence of what was discussed that day, Mr Taylor set out his own observations/opinions about the applicant and what he thought he was capable of in certain circumstances.

75. In my view, contrary to the submissions of Mr Lee, the observations/opinions expressed by Mr Taylor are not those of an expert. As is made clear from his statement, his role was to assist the expectations of those involved in the coronial process. He was not engaged to conduct any form of psychological assessment. Indeed there is no material before the Tribunal to indicate that this statement was placed before the Coroner.

76. Accordingly, for the purpose of this application, observations/opinions of Mr Taylor should be given no weight.

77. In regard to the aggravated indecent assault conviction, I reiterate my finding that this appears to have been an isolated incident. The applicant’s evidence is that he fully appreciates that his offending conduct involving his stepdaughter was inappropriate and wrong and he regrets that it happened.

78. In his written submissions, Mr Lee argued that the applicant’s vulnerability to repetition of the child pornography offence should be considered to be high. In this regard, Mr Lee relied on the report of Graham Rendell a psychologist who assessed the applicant, in June 2006, in regard to the matters that were then before the Court. In that report, Mr Rendell said the following:

‘Actuarial risk (unchangeable):

In actuarial terms [the applicant’s] profile rates in a group of sex offenders considered to be Moderate-High. There are peculiarities surrounding this rating that I believe warrant caution in placing too great an emphasis on this measure.

The dynamic (changeable) issues that need consideration are:

He exhibits some ambivalence over his wrongdoing in relation to the exact nature, and criminality of the child pornography and his accessing it. He does however admit accessing the images stating at the time he didn’t believe they were illegal. [The applicant] was open about his use of internet surfing to locate adult pornography and save the child images (of models he believed) without thinking they’re children until shown by the police. He can articulate his motivations well. He describes himself as “an addictive personality” and equated his porn surfing in that context.

[The applicant] claimed to accept his actions were illegal but denies paraphillic interests in children – a contention I accept in the absence of any other indications to the contrary.

[The applicant] does not present any attitudes supportive of sexual aggression.

He presents as being a self regulated man who attends to his responsibilities and commitments, both social/family and judicial.

[The applicant] appears to have adequate family and social support. However, he is under considerable pressure at present due to his wife’s murder and his involvement in the investigation and consequent need to be sole parent to his twin 3 year-old sons. It is felt he could do with respite time and a context to express his problems which does not appear to be adequate at present. His ambivalence about his conviction for children pornography indicates a need to address the seriousness of his behaviour with persons who also appreciate the seriousness.

….’

81. In response to questions asked of him during cross-examination, the applicant said the reference to ‘addictive personality’ was a response he gave to his consumption of alcohol. Mr Lee put to the applicant that the same applied to his access to pornography. The applicant denied this to be the case. However, he did acknowledge that he watched adult pornography. He said he had watched it more often while he was single and prior to living with his wife. The evidence is that he continued to watch it while he was with his wife and as I understood his evidence, he still watches it as of today. The extent to which he watches it was not explained or explored in cross-examination. However, the applicant continued to deny any interest in child pornography.

82. I note that as part of his 2006 bond conditions, the applicant attended regular AA meetings to address issues about his drinking and that he had no internet access at his home. He was subsequently allowed internet access at his parent’s home, which was next door. That access was limited for purposes of his business, but not otherwise. There is nothing to indicate that the applicant’s parole officer had any concerns about him not complying with the conditions that had been imposed on him.

83. I also note, the applicant did not undergo any offence specific counselling during the period of his bond. This appears to have been largely due to ongoing issues about the police investigation and the pending coronial inquiry into the death of his wife. This seems to have been accepted by the applicant’s parole officer and he satisfactorily completed his periods of good behaviour without having undergone offence specific counselling.

84. The applicant has however, undergone grief counselling in more recent years. The most recent being with Mr Greg Sorrell, psychologist.

85. In his letter of support for the applicant’s application, Mr Sorrell explained he had treated the applicant for depression and bereavement for 16 sessions between March 16, 2011 and August 15, 2012. He explained the applicant had requested notes not be taken during these sessions due to his experience with previous counsellor notes, which he said had been obtained illegally and/or used out of context. Mr Sorrell went on to say that the applicant impressed him throughout all 16 sessions as being a person of good character. He said he was punctual and reliable and always appearing to be honest and consistent in dealing with the facts as he understood them. He said the applicant impressed him as a dedicated parent who loved his twin boys. He concluded by stating that he considered the applicant to present no risk to children. He said that in fact he was of the view that the applicant would be an asset to children (and adults) if he were to return to coaching in athletics.

86. It is not disputed the applicant loves his boys.

87. The difficulty with Mr Sorrell’s letter is that he does not set out the basis on which he has reached his conclusion that the applicant does not pose a risk to children. What material was provided to him and whether his risk assessment was made using the accepted static and dynamic risk factors is not explained. Indeed, on the basis of Mr Sorrell having treated the applicant several years ago and the treatment involved depression and grief counselling, it is unlikely he would have done so.

88. Accordingly, I am unable to give Mr Sorrell’s conclusions much weight.

89. Nevertheless, for the reasons set out above, in my view, the applicant’s vulnerability to repetition of offences of the kind of which he was convicted is not high, as asserted by Mr Lee. On the contrary, given no further reports of conduct of this kind or any earlier reports of conduct of this kind, in my view the likelihood of any repetition by the applicant of these offences or conduct of this kind is possibly low. However, I am unable to make a conclusive finding in this regard as I am not satisfied that the applicant has satisfactorily established that he has the necessary insight into his offending conduct, especially in regard to the child pornography offence. While he has at all times stated he has no interest in child pornography, in my view a satisfactory explanation of his understanding about his offending conduct has not been provided. This may be due to not having undergone any specific offence related counselling. Furthermore, there is no explanation of current measures (dynamic issues/factors) that are in place today which minimise his risk in reoffending by accessing child pornography.

90. I reiterate the onus is on the applicant to place before the Tribunal material of this kind.

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

91. In his grounds for his application the applicant said the following:

‘I believe that for my part in these matters I was irresponsible, and have been adequately punished & therefore should be allowed to go back to work as a coach. A job that I did well and respected all my students and I do not pose a risk to children.

It has been 9-10 years since these offences, during this time I have had to live with the consequences of my actions, and assure you I am aware that what I did was in appropriate. I cannot change the past however I can change the future, no-one is more aware than me of how important it is to place appropriate boundaries between adults and children.

Since these matters were dealt with I have been a responsible member of my community. I have been working in the building industry as a self employed carpenter. I am now at the age of 51 yrs and starting to feel the effects of the hard physical work I have been engaged in and am looking to return to coaching athletics in a part time professional basis to supplement my income which will enable me to reduce my hours doing carpentry.’

92. I accept the applicant now appreciates that appropriate boundaries need to be placed between adults and children.

93. As I have indicated, the likelihood of any repetition by the applicant of this offence and the child pornography offence is possibly low. However, I am unable to make a conclusive finding in this regard as I am not satisfied that the applicant has established that he has the necessary insight into his child pornography offence.

(k) any other matters that the respondent considers necessary

94. It is the contention of the respondent that the applicant has not been fully frank in that he failed to disclose a number of matters in his response to the enquiries made by the respondent’s solicitor, in a letter addressed to him, dated 11 April 2014. In my view, during the course of the hearing the applicant adequately explained why he had not disclosed some matters referred to by Mr Lee in his written submissions.

95. Accordingly I find that nothing turns on those matters identified by Mr Lee in his written submissions in regard to an alleged failure to disclose.

Conclusions and orders

96. In summary, I have found the disqualifying offences of which the applicant was convicted to have been serious but at the lower end of the scale of seriousness for offences of this kind. They were committed some ten years ago and the applicant has not committed any such offences previously or subsequent thereto. I have rejected the contentions of the respondent that the applicant’s offending conduct is part of a pattern of conduct of this kind.

97. The applicant has clearly undergone considerable difficulties following the violent death of his wife. This appears to have affected his approach to this application. In saying this I am not suggesting he has failed to disclose matters relevant to his application, as required under subsection 28(5) of the Act. Indeed I have found to the contrary. This does not mean that the applicant has discharged the onus placed on him, under subsection 28(7) of the Act (i.e to rebut the statutory presumption that he poses a risk to the safety of children by reason of the above disqualifying convictions).

98. Having carefully considered the material before the Tribunal and the requirements of section 4 of the Act, I find the applicant has not discharged his onus and on this basis his application should be refused.

99. I make this finding primarily on the basis of the applicant’s failure to satisfactorily establish he has the necessary insight into his offending conduct, especially in regard to the child pornography offence. While he has at all times stated he has no interest in child pornography, in my view a satisfactory explanation of his understanding about his offending conduct has not been provided. This may be due to not having undergone any specific offence related counselling. Furthermore, there is no explanation of current measures (dynamic issues/factors) that are in place to minimise his risk of reoffending in regard to accessing child pornography.

100. With offence specific counselling and a current risk assessment report, from an appropriately qualified professional, the applicant may be able to establish this. His failure to do so in this application was clearly due to his past experiences and perhaps a failure to fully understand the nature of these proceedings.

101. Nevertheless, on the basis of my findings the appropriate order is to refuse the applicant’s application for an enabling order.

102. This does not prevent the applicant from obtaining the necessary evidence and approaching the respondent seeking permission to make a further early application for a working with children check clearance under subsection 21(2) of the Act. In the event the applicant does wish to pursue this course I suggest he liaise with the respondent to ensure that all relevant material in regard to his offending conduct is provided to his chosen risk assessment expert. In responding to any such request, I the respondent should take into account my findings as set out in these reasons for decision.

103. Accordingly, I order that the applicant’s application for an enabling order is refused.

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: 15 January 2015